Willis v. O'Connell

• Decision Date: 24 April 1916
• Docket Number: 22.
• Citation: Willis v. O'Connell, 231 F. 1004 (S.D. Ala. 1916)
• Court: U.S. District Court — Southern District of Alabama
• Parties: WILLIS v. O'CONNELL.

231 F. 1004

WILLIS v. O'CONNELL.

No. 22.

United States District Court, S.D. Alabama, Southern Division.

April 24, 1916

Armbrecht McMillan & Caffey, of Mobile, Ala., for plaintiff.

Gaillard & Mahorner and Bestor & Young, all of Mobile, Ala., for defendant.

HENRY D. CLAYTON, District Judge.

This bill is brought by Willis, a citizen of Georgia, against O'Connell, a citizen of Alabama, for injunction to restrain him from publishing in his newspaper comments and criticisms reflecting upon the plaintiff, upon a proprietary medicine and the business of plaintiff in selling the same upon the testimonials commending the efficacy of the medicine, and upon the authors of such testimonials.

The plaintiff has the exclusive distributing agency in Alabama and five other Southern states of the Cooper Medicine Company, an Ohio corporation, engaged in the manufacture of a proprietary medicine known as and sold under the name of 'Tan-lac.'The medicine is shipped to the plaintiff at a certain fixed price and then resold by him at an enhanced price.

Under the agency contract, the plaintiff has a pecuniary interest in the prospective increased sales of the commodity in his allotted territory, and he avers that 'Anything which will injure the reputation of Tan-lac, or which will adversely affect the sale thereof in said six states, or to destroy or injure or impair the popularity of Tan-lac, will seriously affect the profits and revenues of the plaintiff.'

Further the plaintiff alleges that Tan-lac has enjoyed a large sale in said six states, and has been held in high esteem by the users of proprietary medicines therein, and has been indorsed by those who have bought and used the same and received benefits therefrom.

It is also stated that the plaintiff, under his contract with the medicine company, has charge of and pays the costs of advertisements of said remedy; that by the use of newspaper advertising and the printing of the testimonials of prominent citizens in such states, who have used the remedy and received its beneficial effects, the plaintiff has built up a large and lucrative business in the sale of Tan-lac; that the compound has enjoyed the good will and esteem of a large part of the population of said states, so much so that the sale of the same in these states has aggregated 500,000 bottles during the past 12 months; and that the gross revenue from such sales during that time was more than $350,000; further that the plaintiff has established an agency for the sale of the remedy in the city of Mobile, and has appointed an agent there; that plaintiff has recently begun advertising the article in the daily newspapers published at Mobile; that, as part of said advertisement, he has published indorsements and testimonials from a number of prominent people touching the curative properties of the remedy, and that he has done this for the purpose of increasing the popularity and sales of Tan-lac in the Mobile community, but that he has not published any advertisement in the Mobile Tribune (a newspaper published once a week), of which the defendant is editor and publisher.

Again, plaintiff alleges that the medicine company has complied with the federal and state laws regarding the manufacture, distribution, and sale of proprietary medicines; that, notwithstanding plaintiff has proceeded with his business in a lawful manner for the purpose of increasing the sale and popularity of the remedy, 'the defendant has willfully, maliciously, and with the intent and purpose of injuring the reputation of Tan-lac, destroying its popularity, preventing the increased sale thereof, and for the purpose of decreasing and hampering the sale of said remedy, thereby injuring plaintiff in the profits to be derived by him from the sale of such remedy, published in said Mobile Tribune certain libelous, defamatory, and scurrilous articles regarding Tan-lac and those who have given testimonials of its curative powers, and that the purpose and intent of the publication of such articles was to hold the said Tan-lac and the plaintiff, and those who have indorsed Tan-lac and testified to its beneficial effects, up to ridicule and contempt and public scorn and derision, for the sole purpose of injuring the sale of said medicine; and that if such publications be continued it would make it difficult, if not impossible, to secure further testimonials, to the great injury of the property and rights of the plaintiff'; that in said articles so published by the defendant in the Mobile Tribune, among other things, it is said:

'Tan-lac is a skyrocket in the pyrotechnics of fakery.'Also:

'Tan-lac is another increasingly popular alcoholic nostrum that presumably fills a much felt want-- want, not need-- in those parts of the country where Demon Rum has been driven into the tall timbers.'

And in another article:

'The medical faker is a contemptible Pharisee with an ungodly gospel.He is a poisonous viper, ambuscaded in the grass, and he should be utterly exterminated.'

And then the plaintiff avers:

'That the statement above quoted was intended to apply to plaintiff, and that the object and purpose of said statement was not only to injure plaintiff in his personal reputation, but also to adversely affect, if not to injure and destroy, the sale of Tan-lac in this community.'

From one of the several published articles, which are made exhibits to the bill, the following is taken:

'As was shown in the excerpts from the Journal of the American Medical Association exposing 'Tan-lac' which were published in the Tribune last week, the happy hunting grounds of L. T. Cooper and his kindred are in the prohibition states of the South where the patent medicine with the 'kick,' being easily procured, has taken the place of the straight 'red-eye' among a lot of the former topers.One of those 'recommendations' contained in the florid 'Tan-lac' advertisements published this week, was from . . ., touted as a former mayor of . . . .The published testimonial from Mr. . . . contained this paragraph: 'Since my second dose I have suffered none of those troubles to which I refer, and I really believe I am going to get perfectly well and strong again.Won't that be wonderful at my age?Well, certain it is that Tan-lac is a wonderful medicine, and you know that I am not given to puffing mere experiments.I am rather orthodox as to materia medica.'

'Substitute for the High-Ball.

'With the convivial reputation Mr. . . . established in . . ., while he was . . . (a public officer), his statement is easily paraphrased into 'I am not given to quaffing experiments and am rather orthodox as to the brand of firewater I consume.'As an authority on the materia medica which comes from corn through a still Mr. . . . should have a rating of AA1 in the distiller's handbook-- if there is such a work published.

'Mr. . . . is a type of that peculiar infliction under which the state of Alabama has long labored, the political prohibitionist.There are prohibitionists in the state-- and many in Mobile-- to whom the Tribune takes off its hat in respectful obeisance.They are conscientious and consistent in their opposition to the liquor evil and they impress their fellow citizens with their honesty of purpose.But Mr. . . . is not one of these.At the time he first appeared as a prohibitionist in . . . and afterwards in . . ., his daily life was the antipodes of the conscientious temperance advocate.It is stated that he was prevented from using his influence with the . . . as a director of that paper to make it an advocate of prohibition by the fact that he was at the time the owner of property in . . . which was being rented for immoral purposes.

'This is the man who thinks that 'Tan-lac' is 'wonderful at my age,' and who gives indorsement to the nostrum.And why shouldn't he get 'well' and 'strong' after a few doses of 'Tan-lac'?Enough of the stuff, with its 16% of alcohol, would make even a cripple want to kick the chief of police.Given a chaser of Tan-lac on Tan-lac, Mr. . . . would probably want to buy a 'flivver' or climb a telegraph pole.'

And again the following excerpts are from the published articles which are made a part of the ground of plaintiff's complaint: 'If it is a violation of the corrupt practices act for a politician to print advertising matter in the form of news without clearly stating that it is an ad, why should patent medicine companies be exempt?In the press agent copy supplied the . . . (a newspaper) and the . . . (another newspaper) last Tuesday glorifying 'Tan-lac,'the article ran in the . . . (first newspaper) as straight news.The . . . (second newspaper) added the magic symbols 'Adv.' after it.A mere question of newspaper ethics, but the . . . (second newspaper) was the more honest with its readers.'

And again:

'A Recipe That will Save You a Dollar.

'Take alcohol, liquor or plain tiger booze,

And label it 'Tan-lac,' for 'internal use,'

Not forgetting to add in the smallest dimension

Licorice, glycerine, aloes and gentian,

And when you have finished you'll find you've devised

Common old whisky but thinly disguised.'

Let me remark in passing that doubtless this doggerel would inflict much pain upon the sensibilities of a teacher of belles lettres, and should not, in his opinion, be allowed to go to print.He would doubtless say that it does not even possess the swing and jingle, the atoning grace, of a limerick.However, I am not to treat it as a poetic effusion, but as a prosy libel, which I shall do in connection with the alleged libelous utterances above and hereafter quoted.

Plaintiff avers:

'That Tan-lac is not an alcoholic nostrum; that it is not intended as a substitute for whisky or alcoholic spirits;...