Schellberg v. Empringham

• Decision Date: 23 October 1929
• Parties: SCHELLBERG et al. v. EMPRINGHAM et al.
• Court: U.S. District Court — Southern District of New York

36 F.2d 991 (1929)

SCHELLBERG et al. v. EMPRINGHAM et al.

District Court, S. D. New York.

July 30, 1929.

Rehearing Denied October 23, 1929.

John L. Ketcham, of New York City, for plaintiffs.

Burnham C. Stickney, of New York City, for defendants.

KNOX, District Judge.

Plaintiff is the president and manager of an institution bearing his name, at which treatments known as colonic therapy may be received by persons who desire the same. One feature of such treatments is that colonic irrigations are administered through the medium of a tube which is passed through the entire length of the colon until it reaches the cecum. By such means the bowel is cleansed of its putrefactive contents, and is prepared for the implantation within it of a quantity of acidophilus cultures which are believed to be of benefit to patients in overcoming infectious elements. Such implantation is also effected by means of the tube. It appears from the testimony that plaintiff is the first person who ever successfully passed a tube throughout the length of the human colon in a living person. With him such practice is ordinary procedure.

In 1922 Schellberg wrote two articles, giving a rather detailed account of his accomplishments with respect to such treatments. The first of these articles, entitled "The Incorrigible Colon Corrected by Medicated Irrigation," accompanied by illustrative cuts, was published in a periodical known as the International Journal of Surgery in June, 1922. The second article was given the title of "Technique of Colon Irrigation," and appeared in the January, 1923, issue of the same publication. All of the matter contained in said issues of the magazine was copyrighted by International Journal of Surgery Company, one of the plaintiffs, and the publisher of the periodical. So far as the copyrights covered the Schellberg articles, they were, as testified by the president of the publishing company, obtained with Schellberg's acquiescence and held in trust for the author. After the appearance of the articles in the magazine, Schellberg requested a number of reprints, which were made by the publishing company and delivered to him. Being taken to his institute, they were, from time to time, distributed to his patients and to physicians and other persons who called at the place of business in this city. Several of them were kept on a stand in the reception room of the institution where they might be examined or carried away by persons visiting the establishment. The primary purpose of the distribution was to give information to persons interested in the subject discussed by the articles, and to relieve Schellberg of the necessity of orally explaining his system of treatment to those who might wish to learn about it. None of the reprints carried a notice of copyright of the printed material, but each of them carried an inscription upon its cover to the effect that it was a reprint of an article which had previously appeared in the specified number of International Journal of Surgery.

At this point it should be observed that Schellberg is also the patentee of a mechanical device for use in administering his system of colonic irrigation, and one of the reprints was used in support of the application for the patent.

During the year 1923, Schellberg developed the subject-matter of his previous articles into a book entitled "Colonic Therapy in the Treatment of Disease." While it is a much more lengthy dissertation than the previously published articles, the main theme is that of the earlier literary efforts of the author. The book was duly copyrighted in the name of Schellberg.

In May or June, 1924, James Empringham, one of the defendants, presented himself at the Schellberg Institute and met its proprietor. Empringham is an Episcopalian minister, and at the time in question was superintendent of Church Temperance Society, an organization which, although it seems not to have been conducted as a part of the Episcopal Church organization, was formerly closely identified with it. The avowed purpose of the Church Temperance Society was to reform intemperance in both food and drink. As an auxiliary to the work of this society, there was another corporation bearing the name of Health Education Society, Inc. Its object was to assist in carrying out the purposes of the parent organization. To that end it maintained a clinic in this city, at which examinations were made of persons who wished to receive its aid, and certain treatments were administered. This exact relationship between the two organizations is somewhat indefinite. As a matter of practice, their work overlapped, and at times one seems to have done all that the other could have done had it functioned in a particular case. Empringham was secretary of Health Education Society. While each organization was, according to its literature, directed by a board of eminent divines, and was advised by a formidable array of reputed physicians and technicians, the fact is that after Empringham's connection with the societies he was the moving spirit of both. Associated with them was the Jumel Laboratory for Social Service and Research. Its function was to make analyses of urine and feces sent to it by one of the other organizations. In 1923, Dr. Allen, who was connected with the clinic of Health Education Society, was stated to be medical director of the laboratories. At a later time, Empringham's son seems to have been its director.

At various intervals, Health Education Society and/or the Church Temperance Society issued a pamphlet or magazine bearing the name of Health Education and/or Law Observance. Their contents were made up of articles or lectures on the subject of maintenance and preservation of health, of most of which the defendant Empringham was the author. In these publications he represented himself as a microbiologist, and as an authority on diet and right living, and capable of making analyses of excrescences for the purpose of ascertaining the nature of dietary ailments. The publications appear to have been designed to attract customers and patients to the clinic, where, for a relatively slight sum, a course of treatments for "deferring old age" — to use one of Empringham's expressions — might be obtained.

With this digression as to certain attendant facts, I revert to Empringham's call on Schellberg. The clergyman, it seems, had suffered from gastrointestinal trouble for a considerable period, and the Schellberg treatment had been recommended by a Dr. Cowett. After Empringham and Schellberg had discussed their respective activities, the former said he would like to secure treatments, but, being a minister and without ample funds, it was suggested that he receive his treatments gratis. To this Schellberg assented, and the administration of colonic irrigations and acidophilus implantations extended over several weeks. Their normal cost would have been $150 to $200. During the course of the treatments, Schellberg gave Empringham copies of the reprints of the articles that had been published in "International Journal of Surgery," and upon some of the calls which Empringham made to the Schellberg establishment he helped himself to other copies. Schellberg says that he presented defendant with a copy of his book. This assertion, as well as most of the rest of the Schellberg testimony, is denied by Empringham. This much, however, is certain, viz. that Empringham, in return for the consideration received at the hands of Schellberg, was to recommend his establishment to persons who called at the place of business of Health Education Society. Schellberg says that Empringham requested reprints of the articles published in the Journal of Surgery for distribution to potential patients of Schellberg who might visit the minister's clinic. He also says that he told Empringham he could not give him a supply of the reprints, inasmuch as he had only a few, but that he might obtain the copies from the International Journal of Surgery Company. Empringham, it is said, told Schellberg that he would have the reprints made, and Schellberg replied that he would communicate with the publishing concern and would send it the illustrative cuts, a part of which were in his possession. Thereupon, Empringham said that he had seen the International Journal of Surgery Company and that it had left the matter to Schellberg, and further that he would deliver the cuts to the publisher. Schellberg then had four cuts handed to Empringham.

During these several interviews, some talk passed between the men looking to the purchase of one of Schellberg's devices for the administration of colonic irrigation. He, however, was unwilling to sell the same for less than $250, and the transaction was not consummated. From the day that Empringham received the cuts until January, 1928, when he was in court, Schellberg says he never saw him. Meanwhile a number of things had taken place.

The first of these is that Empringham, in September, 1924, published a book which bore this inscription: "Intestinal Gardening for the Prolongation of Youth, by Dr. James Empringham, with foreword by Dr. Harvey W. Wiley, Health Education Society, Inc."

Much of the matter contained in this volume was taken from articles that had previously appeared in the Church Temperance or Health Education Society pamphlets. The book also included the cuts that Empringham had obtained from Schellberg, together with a considerable amount of material that was copied bodily from the Journal of Surgery reprints. Credit, nevertheless, was given to Schellberg, as being the author of the portions of the literary efforts that were so copied, and they were marked as being "Extracts from the International Journal of Surgery, January, 1923."

Had the matter ended here, this suit probably would not have been brought, even though Schellberg says he was ignorant of the existence of Empringham's book until a short time before he filed his complaint.

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