Moxie Nerve Food Co. of New England v. Holland

• Decision Date: 12 December 1905
• Parties: MOXIE NERVE FOOD CO. OF NEW ENGLAND v. HOLLAND.
• Court: U.S. District Court — District of Rhode Island

141 F. 202

MOXIE NERVE FOOD CO. OF NEW ENGLAND v. HOLLAND.

United States Circuit Court, D. Rhode Island.

December 12, 1905

Roberts & Mitchell, for complainant.

Charles A. Wilson and George H. Huddy, Jr., for defendant.

BROWN District Judge.

The complainant has sufficiently proved the unlawful substitution of 'Modox' for 'Moxie,' and is entitled to a preliminary injunction, unless guilty of such fraudulent misrepresentation to the public as to disentitle it to the assistance of a court of equity under the principles set forth in Worden v. California Fig Syrup Co., 187 U.S. 516, 23 Sup.Ct. 161, 47 L.Ed. 282.

The defendant charges fraud in various particulars, only two of which require attention: (1) Statements as to the ingredients of Moxie; and (2) statements as to its curative powers.

Evidence is offered tending to show that Moxie is not prepared as it purports to be, from a 'simple sugar cane like plant grown near the equator. ' The force of the affidavit of George P. Walker to this point is considerably weakened however, by the stenographic report of his testimony in Moxie Nerve Food Co. v. Chase, and the inconsistency requires explanation which has not been furnished. The chemical analysis seems to account for all but 1.6 per cent. of the contents of a Moxie bottle as nonmedicinal ingredients such as are used in ordinary root beer. As to the possible efficacy of this small quantity of unidentified residuum there is a conflict of testimony between physicians of the allopathic and homeopathic schools, and the complainant is entitled to the benefit of any doubt upon this point. The existence of a 'sugar cane like plant' and of Lieutenant Moxie seem to have been in issue in Moxie Co v. Baumbach (C.C.) 32 F. 205, and to have been decided in favor of the complainant.

The defendant has produced affidavits of a large number of physicians of high reputation, to the effect that the claims of curative efficiency made upon the Moxie labels and wrappers are absurd, untrue, and, in short, obvious quackery. It is said that the use of the words 'Nerve Food' is fraudulent, because there is no such thing as a nerve food; that the claim that it 'has recovered brain and nervous exhaustion, also paralysis, softening of the brain, locomotor ataxia, and insanity, when caused by nervous exhaustion' is false and absurd, because paralysis and locomotor ataxia are incurable diseases never caused by nervous exhaustion. A similar opinion is given concerning other statements made upon the wrappers and labels. My attention, however, has been called to no case of authority in which it has been held that representations as to the power of a medicine or preparation to effect cures were fraudulent misrepresentations of fact requiring a dismissal of the bill for want of equity. Proof that testimonials as to particular cures were wholly fictitious would, of course, amount to proof of a fraudulent representation of fact, and would be sufficient to debar a complainant from relief; but to say of a person who took medicine that he was cured or benefited thereby seems to be regarded as more in the nature of an expression of opinion than of a representation of fact.

In School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 105, 106, 23 Sup.Ct. 33, 37, 47 L.Ed. 90, the Supreme Court said:

'As the effectiveness of almost any particular method of treatment of disease is, to a more or less extent, a fruitful source of difference of opinion, even though the great majority may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to fraud. Unless the question may be reduced to one of fact as distinguished from mere opinion, we think these statutes cannot be invoked for the purpose of stopping the delivery of mail matter.'

Though, by section 3929 of the Revised Statutes (U.S. Comp. St. 1901, p. 2686), the Postmaster General was given power to issue a fraud order, so-called, upon evidence satisfactory to him that a person was conducting a scheme of fraud by the use of the mails, it was held that this in fact, in regard to which opinion formed no basis.'

Counsel for the defendant contend that a court of equity should not attempt to determine the merit of a secret or quack medicine, but should dismiss the bill as ipso facto fraudulent. Fowle v. Spear, Cox's Trade-Mark Cases, 67, 7 Pa.Law J. 176.

There is force in the argument that extravagant claims, statements of marvelous recoveries, and secrecy and mystery as to ingredients, are such badges of fraud as to warrant a court of equity in refusing to extend a presumption of good faith to a complainant making such claims, and in refusing relief. See opinion of Mr. Justice Shiras in Kohler Mfg. Co. v Beeshore, 59 F. 572, 8 C.C.A. 215, and cases cited. Unfortunately for the defendant's contention, the case of Fowle v. Spear, supra, seems to be disapproved in the later opinion of Mr. Justice Shiras in Worden v. California Fig Syrup Co., 187 U.S. 516, 527, 23 Sup.Ct. 161, 47 L.Ed. 282. The affidavits of many of the physicians are to the effect that it is a conclusion of common sense that the claims made for Moxie, the statements of its origin, and power to cure serious diseases, together with the advice of its free use as a beverage by women and all classes of persons, bear on their face the stamp of absurdity, falsehood, and deception. The attitude of the...