The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Every so often, I run across a particularly striking court opinion, which I think some of our readers might enjoy; here's one, from a New York intermediate appellate court in 1874, Richards v. Judd:
David Richards sued Orange Judd and others for libel, and the cause now came before the court on appeal from an order of the special term, striking out the complaint, and dismissing the same with costs, for plaintiff's refusal to answer certain questions propounded to him as a witness, pursuant to the order of the court….
[T]he defendants … procured an order and summons for the examination of plaintiff as a witness on their behalf, before the trial.
On such examination, the plaintiff … [was] asked of what [his medicine] was composed? He refused to answer the question, on the ground that it was irrelevant, immaterial, and a secret in his trade. The judge directed the plaintiff to answer the question. He then answered: "It is a secret compound, composed of various ingredients, which possess great medicinal properties;" and refused to state the names of the ingredients….
By the allegations of his complaint the plaintiff had invited an issue as to the medicinal qualities and value of the "Golden Remedies."
The statement of the alleged libel, so far as it pointed directly to the plaintiff or his remedies, was to the effect that his "Golden Remedies" are "non-sensical quackery;" and it is chiefly of this statement that the plaintiff complains.
The defendants undertake by their answer to show that this statement is true.
No one can read the circulars of the plaintiff, as proved by himself on his examination, without observing the importance of the investigation sought to be made.
It was competent to disprove the assertions of the circulars and of the complaint, by ascertaining the ingredients of the several compounds, for the purpose of showing that they possess no such medicinal virtues as are claimed by plaintiff.
For instance, he asserts in his circular that his "Elixir of Love" is composed of the most powerful ingredients of the vegetable kingdom, "harmless, but *189 speedy in restoring healthy action;" and again: "It is the fountain of youth to old age; the rejuvenator of pristine vigor in the young; to the barren women of our land it is a special blessing." Indeed, it is impossible to read the vulgar, and in many respects shameful assertions and instructions that accompany the compounds of plaintiff, without being struck with the vileness of the impostures. That he can bring an action of libel for injury alleged to be done to his trade in his medicines, by denouncing them as arrant quackery, and at the same time protect himself against exposure by claiming them to be valuable secrets, is a proposition that cannot be maintained.
In the laudable exposure of such "humbugs" as the pretended medicine of plaintiff and others, the defendants take upon themselves great risks, and subject themselves to the annoyance of suits; but I think they are not exposed to any danger that courts will interpose any shield for the protection of parties guilty of fraud and deception of the public.
If the plaintiff did not choose to try the question of the true character of his "Golden Remedies," he should have kept out of a court of justice.
The order of the court below was correct, and should be affirmed, with ten dollars costs and disbursements.