Krebiozen Research Foundation v. Beacon Press, Inc.

• Decision Date: 03 May 1956
• Citation: 134 N.E.2d 1,334 Mass. 86
• Parties: KREBIOZEN RESEARCH FOUNDATION and others, v. BEACON PRESS, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1

134 N.E.2d 1

334 Mass. 86

KREBIOZEN RESEARCH FOUNDATION and others, v. BEACON PRESS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1956.

Decided May 3, 1956.

James D. St. Clair, Boston, for plaintiffs.

Victor H. Kazanjian and Hervey W. King, Boston, for defendant.

Before QUA, C. J., and RONAN, SPALDING, COUNIHAN and WHITTEMORE, JJ.

WHITTEMORE, Justice.

The plaintiffs seek to enjoin publication and distribution by the defendant of a book allegedly entitled either "Krebiozen'; The Great Cancer Mystery,' or 'The Great Cancer Mystery,' by George D. Stoddard. This is the plaintiffs' appeal from the interlocutory decree sustaining the defendant's demurrer and from the final decree dismissing the bill of complaint. There was no error.

The plaintiff Krebiozen Research Foundation is identified in the bill as an Illinois nonprofit corporation. The plaintiff Andrew C. Ivy is described as a medical doctor and physiologist, head of the department of clinical science at the University of Illinois, who has been engaged 'for over five years in research and clinical investigation of said drug in his capacity as scientific advisor of said Krebiozen Research Foundation.' The plaintiffs Marko Durovic and Steven Durovic are stated to be the proprietors of Duga Laboratories which owns the manufacturing rights to produce Krebiozen. The bill states, 'Dr. Durovic is a medical doctor who developed said drug, Krebiozen. He has worked with Dr. Ivy in research and investigation to determine the efficacy of said drug in the treatment of cancer.' Included quotations from the subject book indicate that the reference is to Steven Durovic.

The defendant is described as a Massachusetts business corporation, the publisher of the subject book, which publishes and distributes books widely for sale throughout the United States. It is alleged that galley proofs of the book have already been published and distributed and that the book is about to be put on general public sale.

The bill states that 'Being a drug in the experimental stage, Krebiozen's therapeutic merits have yet to be conclusively established in the United States.'

It is alleged also that 'Dr. Ivy and Dr. Durovic have performed a thorough, painstaking, basic research on the drug involving the use of many animals and hundreds of case reports supplied by physicians of cancer patients throughout the United States. (See Exhibit 'A.')' The reference is to a thirty page booklet attached to the bill of complaint entitled 'Report on Krebiozen. An agent for the treatment of cancer. Its clinical pharmacodynamic and chemical properties 1951-1954. By the Krebiozen Research Foundation.' Twenty-three pages of print in the exhibit are summaries of what one hundred doctors are stated to have said about approximately one hundred twenty-five patients, each doctor and patient being identified by initials.

The bill recites that the plaintiffs believe and allege the book 'to contain false, fraudulent, wrongful, malicious and erroneous statements which tend to injure and destroy the good name and professional reputation of the * * * [plaintiffs] and the commercial value of the drug, Krebiozen.' It also alleges that certain specified statements ¹ and other statements and the whole tenor of the book 'expressly or impliedly state that the * * * [plaintiffs] are trying to promote a secret remedy without adequate scientific research and that * * * [the plaintiffs] know their remedy to be worthless * * *, [and] are designed and will have the effect of impeding further clinical investigation of said drug and its commercial marketability in foreign countries where its sale is licensed.' The bill specifies that the statements quoted in the bill and other statements and the whole tenor of the book libel Dr. Durovic and Dr. Ivy in charging them with having acted unethically and violated professional standards, with using testimonials from patients contrary to professional standards, with the promotion of secret remedies for personal profits, with shoddy and careless research, and with uncritical indorsement of remedies. It also alleges that the publication of the book will cause irreparable damage to the professional reputations of the plaintiffs as doctors and scientists, and will subject them to professional suspicion, contempt and 'ostracization' and to public contempt and ridicule, and that the trade name of the drug will be irreparably injured.

The specifications of the bill indicate that in some respects the statements in the book do not warrant the general allegations made about it. For example, the bill makes the point that the author of the book knows that the suggestions of nonprofessional reliance on paid testimonials from patients are false. But the relevant quoted words are, 'There must have been considerable expense also in gathering testimonials from cancer patients' and '* * * subjective testimonials [were] their chief evidence.' These words do not charge that any payments were made to patients. There would presumably be expense in getting the medicine out to doctors for testing and getting back and collating reports, and for aught that appears that is the expense referred to. The one hundred twenty-five or so reports in exhibit A show that the plaintiffs were making use of favorable reports from doctors about patients, and were presenting this part of the available data much in the way testimonial material direct from patients is often presented by those who sell medicines with the use of testimonials. The contents of these reports, to some extent at least, reflect subjective aspects of the reported illnesses.

And while it is questionable how far the defendant's motivation will be of controlling significance in a case of a writing in a field of public interest, see Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed.1357, and footnote, 134 N.E.2d 8, post, it is to be noted that the bill here does not make out a case of active malice in the defendant--of a purpose to injure the plaintiff or their business rather than an intent to publish a book about a controversial subject.

The summary allegation that the false statements are 'malicious' is usual in a libel suit. The word is one of art in such pleading and does not carry the import of 'actual malice'. Commonwealth v. Bonner, 9 Met. 410; Kenney v. McLaughlin, 5 Gray, 3, 5; Goodwin v. Daniels, 7 Allen, 61, 63; Conner v. Standard Pub. Co., 183 Mass. 474, 480, 67 N.E. 596; and see G.L. (Ter.Ed.) c. 231, § 92. The word 'fraudulent' without specification does not advance the pleader, Garst v. Hall & Lyon Co., 179 Mass. 588, 61 N.E. 219, 55 L.R.A. 631; Nye v. Storer, 168 Mass. 53, 46 N.E. 402; Second Soc. of Universalists in Town of Boston v. Royal Ins. Co., Ltd., 221 Mass. 518, 523, 109 N.E. 384; Cosmopolitan Trust Co. v. S. L. Agoos Tanning Co., 245 Mass. 69, 73, 139 N.E. 806. These words are used in the bill in respect of the statements in the book and not as to the defendant's actions. That the defendant had refused in spite of the plaintiffs' efforts to let the book be seen (efforts made, as asserted, 'to offer proof as to the inaccuracy of certain statements * * * [allegedly] libellous') is consistent with sound business procedure. The quotations from the book suggest the probability that the author is moved by strong feeling, but whatever their implications as to his aim they do not bear with any critical force on the motives of the publishing defendant.

We judge the bill here as one the full import of which is that the defendant publishing company is publishing a book in a controversial field ² charged with the public interest which is false in whole tenor and in certain details and known in certain respects by the author to be false and which will damage professional reputation and business property.

Equity Has Jurisdiction to Issue an Injunction.

In Menard v. Houle, 298 Mass. 546, 547-548, 11 N.E.2d 436, 437 (where the defendant was with words and acts letting the people of Springfield know he thought the plaintiff sold automobiles which were lemons), we summarily reviewed the decisions of this court in respect of the right to enjoin defamation. In that decision we said, 'The defendant relies upon Boston Diatite Co. v. Florence Mfg. Co., 114 Mass. 69, wherein it was held that equity jurisdiction does not extend to cases of libel or slander or of false representations as to the character or quality of the plaintiff's property or as to his title thereto which involve no breach of trust or of contract. See, also, * * * [cases cited]. But later cases have held that equity will take jurisdiction where there is a continuing course of unjustified and wrongful attack upon the plaintiff motivated by actual malice, and causing damage to property rights as distinguished from 'injury to the personality affecting feelings, sensibility and honor' (Choate v. Logan, 240 Mass. 131, 135, 133 N.E. 582, 583), even though false statements and false announcements are the means or are among the means employed, and that in such cases there is no adequate remedy at law. * * * [Cases cited.] This case [Menard v. Houle] falls within the principle of the cases last cited.' And see Kenyon v. City of Chicopee, 320 Mass. 528, 533, 70 N.E.2d 241, 175 A.L.R. 430.

In Lawrence Trust Co. v. Sun-American Pub. Co., 245 Mass. 262, 139 N.E. 655, it was held on demurrer that the plaintiff made out a case for equitable relief on allegations of many and repeated editorials containing false and misleading statements made with sole intent to harm the bank and its property by persuading depositors to discontinue their business with the complainant bank.

The plaintiffs urge that we should make express the implications of the more recent cases and now rule that, even absent the special circumstances emphasized in those cases, an injunction may issue to protect not only rights of property but also rights of personality...