*1 TUTTLE, Before CAMERON and Judges. JONES, Circuit TUTTLE, Judge. Circuit is an the United States granting injunction from an order against some, all, the claims used in the interstate sale medicines, patent of her Tri-Wonda No. No. Tri-Wonda Tri-Wonda No. 3.1 sulphur, phenolphthalein, No. is a

1. Tri-Wonda combination of is a mild hydrochloric dilute nitric dilute laxative. Tri-Wonda No. 3 consists of dogwood, of tartaric acids with traces acetic fluid extract of Jamaica thiamin hydrochloride (Vitamin Bl) Tri-Wonda No. which is a com acids. and wild senna, cherry tartar, flavoring bination cream dissolved alcohol. 44% *2 is, by representation there- and sold These medicines were fore, arthritis, by rheuma- false. of for use sufferers The Government’s tism and bursitis. appeal Finding No. the Govern- which the the fact results attack, is follows: ment directs its enjoined de- the of the trial court decree “29. The court that the Gov- finds distributing products the fendant from meet bur- ernment has failed the misbranded when in interstate commerce proof and den establish of any similar by representing labeling statements in some of the adequate drug are cure or “a and defend- used ant, distributed or rheumatism” of arthritis form Wier, correspondence Lela S. expressly stated which decree leaflets, printed and and the are false to introduce continue “she could prove misleading, has failed to and provided interstate commerce into medicines, when that the Tri-Wonda and labeling false thereof not according to directions are taken represent misleading, permitting her to number beneficial in a substantial medicines, when the Tri-Wonda of of of cases in the treatment some according directions, are bene- taken arthritis, rheuma- cases number of ficial in a substantial bursitis, including: pain, tism and soreness, symptoms of rheu- relief swelling of tissues arthritis, bursi- and rheumatism matoid joints; loss of free- around the swelling soreness, tis, pain, such as pain, resulting from dom motion joints, the loss of tissues around the swelling of tissues soreness and the resulting pain motion freedom of joints; gen- and around the loss accompanying rheumatoid and soreness arthritis, being; constipation, well and eral being, well loss deficiency B1 associ- of Vitamin deficiency constipation, Vita- arthritis, ated with rheumatism arthritis, rheu- min B-l associated with bursitis.” matism and bursitis Among presented questions the three complained of the United States following: appellee in brief her permissive part the order Finding decision of Fact No. 29 the “Is enjoin repre- of the court failure overwhelming contrary evi- below drugs were beneficial that “the sentation completely dence, erro- so cases in the number of substantial neous?” In the case this our view symptoms of rheumatoid of some relief question affirm- be answered must rheumatism and bursitis such making ative, unnecessary an- thus swelling soreness, pain, of tissues first swer to the contention Gov- joints, free- and the loss of around ernment. resulting of motion dom problem accompanying approaching ar- rheumatoid soreness grounds: appellate (1) duty power en- on two the acts thritis” joined finding upon to could not be when called review a the court distin- sitting permitted court, guished the trial without from the acts thus fact jury, with the basic rule: contains inconsistencies and “the decree start ambiguities which make it 'unenforcea- BY THE “Rule FINDINGS representations ble,” (2) such as are COURT. wholly permitted the Court are un- “(a) Effect. In all actions tried justified the evidence of record. jury upon the or with facts without explicit findings court made advisory jury, find the court shall following: fact, included which separ- specially facts and state “ ately law that the evidence its conclusions thereon estab- entry appro- medicines lishes that Tri-Wonda and direct granting remedy judgment; priate constitute cure refusing injunctions interlocutory rheumatism; and all forms of high remissions, similarly forth the which has a rate of court shall swelling findings limitation move- of fact and conclusions his grounds by Tri-Wonda, helped has been constitute the ment law evidence, Requests cannot amount to substantial its action. *3 though necessary technically review. purposes even it be of admissible. Findings not be of fact shall Dealing just by an such erroneous, and clearly aside unless by finding the Government given op- regard due shall be to carry trial court that it failed “had to judge portunity to of the trial court establishing the burden of the truth of credibility witnesses. of of allegations complaint” of its this ** rule Fed.Rules Civ.Proc. Court, Hoxsey estab- 52, U.S.C.A. guide lished the which must us here. law Although finding here court’s There, qualified experts here, highly as was stated terms of a failure of (there, field of medicine involved proof of Government “to the burden meet cancer, uniformly arthritis) here testified and establish that the statements diagnosed that the disease could not be misleading,” consider are false we without the use of scientific aids not used against finding simply as a Gov- this by appellee the witnesses for the either ernment on evidence. case; of the cause disease anyone unknown and the known treatment of it appear to It will at once very efficacy dealing best; of doubtful at prove that cer with an effort to great amounts of research had been car- tain do or do not have thera chemicals body, ried on to broaden the field knowl- peutic of on effect the human edge profession court, the medical investigator, as to cause here the trial here, There, upon cure. simply pass as there' was than must more credibility testimony on behalf the Government in ascertain resulting by from clinical studies made there is sub whether evidence enough finding specialized those medical men support who stantial to field, pro instance, tests made with For have held con. Clinic, and with Hoxsey controls care make most United States v. Cancer likely possibility objective an as- the testi layman mony certainment of the truth there was either is suf that he testimony fering respondent also for the from cancer of that he has been specialists honestly given others not cancer, in the field based on cured of however disregard firmly clinical tests made in believed, however does recognized safeguards major objec- dignity to an rise to evi substantial There, here, pharmacolo- test. tive as It follows is true dence. that the same gists, knowledge those skilled in presence disease whose cure the effect chemicals on the persons human or- only be train can ascertained gans functions, testified to the worth- ed in medical science the use question surgery. lessness when scientific aids or purposes. used directed for the stated that what We think has been said as There, here, there were doctors and diagnosis by layman, disease patients testified, who nevertheless obvi- though sufferer, applies even he be a ously necessary without the foundation equal opinion force to basing the medi- a sufferer that his relief cine did offer relief or cure. other relief from of a disease Notwithstanding which, taking specific result of the type might case, in another Certainly a be said medicines. statement conflict, Court, speak- would create a patient diet is not whose otherwise con- Judge ing through Russell, brought inquiry, said: trolled or into the taking “Thus, argu- assumed, other even if it be medicines time, particularly endo, same in a disease there is some measure diag relating qualifications either their own evidence conflict types ar representa- nose or treat the several specific falsity still, was al thritic above, diseases. Their referred to tions exception tests repre- most based without finding clear that a patients supported sent to them is not are true sentations diagnosed patients or on who had evidence.” substantial own for treatment condition asked further: And by obtaining medicine a free course of so-denominated think “We by appellee. furnished wholly in- conflicting spe- Appellant’s replete with brief is upon the doubt sufficient cast such relating excerpts cific *4 the of in behalf adduced general by cases testified about these the trial to authorize Government practitioners patients. Strik- and their that the to find ingly, appellee opens with the its brief carry es- of burden the had failed to following statement: allega- tablishing the truth of the “Except the of conclusions complaint.” of tions its pleader effect evidence adduced, appellee case believes the on behalf In this the evidence fairly brief stated the Spe- impressive. the was United States appellant. page Only the first diseases, in the of arthritic cialists field accepted statement because research and members active in arthritic by ap- remainder of the statement dealing with this of the learned societies pellant argument in advance.” speciality, one whom testified medical single state- Yet nowhere in the brief is a 40,000 approximately had treated he ment of brief of fact contained orthopedic patients, sur- one arthritic geon the United otherwise States refuted or specialists, testi- and two research by appellee. have care- attacked We equivocation fied in- without fully read the record references to gredients patent three medicines these testimony of the histories 35 to 40 case quantities for treat- recommended carefully analyzed are which in the Gov- therapeutic value ment were without the con- and have found ernment’s brief of, or alleviation either treatment by clusions drawn the Government of the arthritis. completely as to the effect of accurate foregoing In addition to the evidence testimony. pharmacologists, experts three brief, evi- said that must be hu- field on and their effect general prac- of no dence one the five system, man in- also testified that necessary quality titioners rises gredients recog- of Tri-Wonda were not to constitute evidence when substantial nized in or teach- of the literature light considered in the other evi- of the ings profession treatment dence in the record. This because so of, suffering alleviation of the thoroughly either medical witnesses gave They arthritic diseases. disqualified having any skill themselves as they opinion their no had value diagnosis in either treatment relation to such disease. diseases or their evi- arthritic because countered, was on be dence as to the effectiveness of Tri-Wonda appellee, by prac reducing half alleviating swelling five titioners, professed improving mobility joints whom not to either specialists field, merely repetition and all of whom of statements made concerning disparaging patients, remarks by made them or because 2. circumstances under which these of the worth of a new tainment they really so far lacked the tests normal cannot be called “clinical recognized controls even these wit- tests.” objective proper to an nesses as ascer- “survey” Wier, appellee. Mrs. Her there record discloses was, solely diagnosis course, dis- state- based no the existence of ments so-called made to her the customers

ease either before or after treatment, already in- had For used the medicine before or for both reasons. stance, her. num- testified: were interviewed A one of the doctors already persons reported “Everyone patients had ber of these who were of these Gray diagnosis They all Dr. stated that their own completely made.” ignored improved, important dif- condition had testified as wit- they repudi- nor- the trial in treatment ferences in the cause and mally nesses types testimony. ated such the different accorded they knew They arthritis. all testified Finally, a Nellie Watts testified Dr. suggested of no literature in the field that she literature in had searched the medicines, component parts these and, solely on the arthritic field based being singly together, effica- taken made, this search she she concluded cious in the disease. that some of the in these medi- chemicals might though objection- and, cines Even act as a diuretic otherwise body able, lowering the water content of the of these *5 generally, swelling joints. nothing amounted testi- reduce the to more than of mony personal In of view the fact that two of the from their individual writers prin- experience. of the cipally relied, medical articles on which Dr. Watts As to this kind of Wigmore’s testimony perti- testified at trial that comment the ingredients these medicines in the nent: of quantities prescribed would not have any physician “To allow to them, appears effect attributed that to solely per

who claims to know testimony placed upon no reliance can be appropriate experience sonal is to theory. based impostors. the witness-stand to Medical of trans science is a mass urges strongly appellee The that numer mitted data from and collated there is a clear between con distinction a generalizations quarters; ous tention a that medicine is recommended one man’s result of for arthritis and a state of personal exclusively are observation ment that a medicine cases acceptable law the least The of all. pain, swelling relieve limitation recognize must medi the methods of of movement associated with arthritis. stultify cal science. itself It cannot We think do not need to decide wheth by establishing, judicial inquir er there is distinction such here as ies, neces a never considered rule marketing permissible make of a sary by profession itself. the medical product representation under second enough physician, It is fying testi a which has been found not marketable fact, he is to medical that a first, under the because we think it clear physi by training occupation a beyond any question that cian; whether his source of infor the trial court that the particular mation for that fact proving not carried its burden of entirely hearsay of his Tri-Wonda medicines not “beneficial investiga fellow-practitioners and tors, is immaterial.” substantial number cases in Wigmore, Evi relief of some of rheumatoid dence, ed., III, 3d Vol. 687. § bursitis, rheumatism and such soreness, swelling In addition to the tissues to, practitioners joints, above referred around the the loss freedom appellee resulting introduced a witness a Dr. motion soreness Mary Gray, lacking special accompanying quali- also rheumatoid arthritis” misleading “against diseases, fications the field arthritic is so false merely great preponderance undertook the credible testi interview patients mony represent number whom she was reflect or sent does Reversed and Remanded right Sanders the case.” the truth proceedings this with inconsistent Leech, opinion. credi- question do not need to We as-We bility the witnesses. Judge (dissent- CAMERON, Circuit each credited trial court sume ing). telling appellee’s I. however, add not, This does the truth. (a) appeal by States This United which, weight because upon invest- 28 U.S.C.A. § based opportunity lack demonstrated ap- jurisdiction of this Court with relegated properly to base peals dis- from all decisions of final mentioned the class filed trict courts. being con- Hoxsey served a motion dismiss the knowl- trary accepted “to scientific ground district edge” therefore, and, not substantial. specifically jurisdiction of a retained “with left we are evidence the entire On portion by appellant of the claim sued on firm conviction the definite and judgment appealed from and that United mistake has been committed.” not, therefore, final Co., Gypsum States States v. United meaning statute. within said L.Ed. 68 S.Ct. U.S. argued ordered the motion be weight overwhelming of the along appeal up- submission requires conclusion merits, was fol- on its and that course representation medicines that these my opinion the motion lowed. swelling or affect pain or relieve the granted appellee should be and the case *6 accompanying limitation of movement be remanded for such further should mislead- is false and rheumatoid arthritis hearing may order, as the trial court and ing. entry judgment. a final necessary should, upon such evi- It to understand that the court The trial injunction granted injunction granted appellant dence, as have exceedingly terms, prayed failure to broad in its and court’s for Hoxsey case, appear copy in so, by us in the thereof out as stated grant margin.1 judgment did The discretion.” “evidences an abuse of “ * * * ordered, you your for letter recent and it is further ‘Thank my date’, glad you adjudged T am decreed. tell about and * * * experience’, Wier be testimonial letters That Lela “2. S. enjoined Tri-Wonda, any they hereby perpetually or are from users provisions written, printed, graphic or mat- restrained under other directly represents suggests, 332(a) ter, or indi which or direct- 21 U.S.C. indirectly, drugs, introducing causing rectly ly to be in or or or any delivering causing drug, them, or similar or be or either troduced adequate any cure or treatment introduction into interstate is a for delivered commerce, drug rheumatism, or article of known as arthritis or form they give Treatment’, beneficial, or are ‘Tri-Wonda ‘Tri-Wonda.’ relief 2’, any 1’, value No. have No. ‘Tri-Wonda or ‘Tri-Wonda forms they 3’, any name, rheumatism, or or other arthritis No. ‘Tri-Wonda any following ingredients: beneficial, effective, consisting are mitigation, cure, relief, [giving constituent chemi in the in detail value * * * any drug, aches, pains, muscular similar cals] which, swellings soreness, stiffness, labeling or mis which false accompany tubercular, gouty, gonococcic any particular, leading in and more specific types drug specifically due to or arthritis such which is ac arthritis neuritis; infection, companied sciatica or the leaflets introduced in it May exhibits, entitled ‘You Ordered, adjudged Experience “3. decreed of Oth Profit Now * defendant, Wier, ers’, Arthritics’, Lela S. the letters ‘Attention hereby enjoined perpetually Bulletin’, Friend’, ‘Special ‘Dear entitled licensing appear injunction relief as essary her hereafter nec- * * * appropriate interstate into introduce at all commerce. plain jurisdiction retention of below, undisputed the court under majority opinion states my “per- above, circumstances complained as set forth in United States opinion, judgment unappeal- order,” rendered which missive able. opinion. in quoted rule matters paragraph such 2 of thus in- was stated in the This statement not made Covington Covington junction judgment appealed v. First National portion of the Bank, 1902, from, merely (syllabus) recital U.S. 270 it was preliminary S.Ct. L.Ed. paragraphs decree 906: prove Government had failed pleadings “Matters within the respect its claim with to whether having this case been left undeter- substantial were beneficial below, mined the court and the number of of some cases in relief having cause been detained for the of the diseases such as purpose passing upon of thereafter soreness, swelling, constipation, etc.2 them, entry and for the of a further decree, the decree entered below finding Patently, in its order leave final, and this Court is without introductory No. 29 and its recital in the jurisdiction pass upon it.” portion open appealed order for further or action either provided 54(c) It “ in Rule F.R.C.P.: party, added, para- the court the last every final shall graph costs) dealing (except that grant party the relief to injunctive following: order, whose favor it is rendered is entitled “6. Ordered, adjudged and de- ^[*] ^[*] jurisdiction creed that of this Under language this rule and the of § purpose Court is retained for the comes, the case before us enforcing this decree and precisely holdings under our granting

purpose King additional California, Co., supra. *7 directly and restrained from or indirect- delivered for introduction into interstate ly doing causing or to be drug done of the commerce the aforesaid with label- following respect acts with tbe to afore- that does not a include statement and drug ship- said while held for sale after diseases, enumeration of all conditions symptoms, ment in interstate commerce: and for which the article is “(a) drug The together use in the sale of used, precise intended to be written, printed graphic or directions for effective and safe in use paragaph 2, matter any disease, referred to in symp- or of condition, each such or ” * * * written, printed, graphic tom; [Emphasis other or added.] containing any matter of the claims or portion 2. This recital of the decree con- representations specified paragraph in 2. tained this further statement: “The “(b) Representing, any manner, in that adjudicate drug Court did not that prevention, is usful in the treat- beneficial, only was that the Govern- ment, mitigation, any disease, or cure of prove ment had failed to beneficial in the above that it condition, symptom, or that is not stated respects labeling enumerated in the there- and/or precise together with City Paducah, diréctions for 3. To the same effect see Ky. in Telephone effective and safe each use Co., dis- v. East Tennessee ease, condition; symptom, 1913, 476, 816, 229 U.S. 33 S.Ct. 57 1286; and it is further L.Ed. 6 Moore’s Federal Prac Ordered, adjudged tice, pp. seq.; “4. King decreed 2d Ed. 120 et defendant, Wier, al., Lela S. California Co. et hereby perpetually Id., en- 236 F.2d 413. And joined directly and restrained from Casualty or in- cf. New Amsterdam Co. v. B. directly introducing causing Co., Cir., to be in- L. Jones & 254 F.2d delivering causing 917; troduced or al., to be Richards et al. v. Smith et Cir., 1960, 276 F.2d 652. thought, it now that character it said (b) appellant can be If lawyers experience judgment court know that ex- claims, “Ambiguous perts generally pretty Inconsistent” stick to the close below was brief, litigant argues point its line of which first itas 59(e) right employs to them. under Rule it had or amend motion to alter serve “A Appellee’s experts prac- days after judgment ten not later than constantly titioners who were called Having failed judgment.” entry of the arthritis, people suffering to treat attempt cannot, my opinion, do, it toso rheumatism and the maladies other point raised in error put the court to which the accused dealt with. literature judg- The appeal. on the first time good acquire necessarily doctors Such clearly face that ment showed its working knowledge palliatives which jurisdiction was final was not though give relief, a measure of even very hearing on the retained for temporary, symptoms probably to the lays most appellant upon which matter attending Certainly the those ailments. right this Court The stress. does not desire that not, right does statutory and the average encouraged idly doctor be to sit forth, reasons permit people day after suffer exist. higher day places because those have not discovered cure for common these II. The trier of maladies. facts in this case majority in right follow the unable to amI consider their holding judge was give thought weight district and to it such as he drugs holding in his erroneous it deserved. bene- average to be question good had been shown pretty man also has a symp- certain symptoms go ficial idea of the people. number in a substantial toms rheumatism arthritis. Sufferers early part legion was at issue in the nobody, This case from them are March, intervals me, and was tried deny seems to would that a witness get around testify the district court could symptoms when he has as opinion Oc- diagnosed its was rendered malady it until the result of appealed tober man as medical rheumatism January 16, until entered and to certain nearly all instances the him relief. That is all that testi- vast number of witnesses attempted do, heard the appellee’s witnesses fy nineteen personally. The record is question the sole in this involved 3,759 pages. Un- contains is, volumes and appeal, that relief of certain *8 appellate all court is to read people less an substantial number of suffer- ato in it how pages, ing I not those do see in the from maladies listed adjudge position of fact findings. to judge’s court, which heard all majority opinion attempt does not arguments ob- all of the analy2;e laymen to under jections, clearly erroneous were unequivocally were who stated 52, F.R.C.P. Rule from these and that maladies sufferers sufferings we should be overawed were think their alleviated I standing high question. in some the asserted use of the matter As interest, twenty- witnesses. it found that Government’s litigant laymen testify. Excerpts and is able did so United States is rich two expert way forth in produce best in the are set to from gen- if, qs margin.4 testimony. Even indicated in a Without reflection * * * George Bosarge: ribly. 4. Mrs. spine, you Referring your Did take those medi- lower three “Q. “Q. you suffering pain Ter- A. were there? considering majority opinion, some way eral arriving conclusion which to it developed or at contradic- inconsistencies duty most consonant with the arose, court had truth. tions you Snelling give any you? “Q. Did Mr. I did. A. with cines home try? right. prescribed? A. That you medicine to them as take Did “Q. you way “Q. take Did it doc- A. I did. got you right. any get tor told you take it? A. That I results? A. Did “Q. you feeling “Q. better when pretty good Were results. you right. That’s you returned to him? A. tell take it continued “Q. If your condition, your “Q. happened What was Mr. whether condition what you got right Cuevas, improved along had It did it worse. A. better right. not? A. I That was work- than I have better me—felt wonders for feeling years. better. you pain your joints you “Q. A. Are free of feel worse better? “Q. Do back, Yes, now? A. come sir.” did not Wonderful —It spine. Mrs. Lizana: W. E. even in the your physician regular “Q. A. Who is back at all? not come It did “Q. Snelling. at this time? A. Dr. No. pain today? you suffering? “Q. Where were A. are free “Q. You my arms hands. A. Yes. you they giving pain you “Q. Were much other medicines take Did “Q. Right smart, yes, or not? sir. A. A. No.” at time? “Q. kind of What medicine did Dr. Alice Guardia: Mrs. Snelling you try? you what ask A. This tell the Court Tri- ‘‘Q. Will suffering you Wonda. at that time? A. were Lizana, you right Now, my “Q. hard- did shoulder —could Mrs. follow Pain in Snelling ly I went to Dr. doctor’s directions and take the arm. medi- move Yes, cine? A. I did. for it. A, diagnose “Q. tell he as? Then the court it did whether “Q. What you helped certainly or not? ItA. did Arthritis. help me, you My medicine, fingers far did take it ac- as I know. “Q. pos- bend, much, cording couldn’t A. I couldn’t do Near I directions? good. think it did me a lot I did. sible any, results, get you Guardia, you “Q. if what Did it to where could Mrs. “Q. your pain your fingers you get bend or not? A. reference Yes. did * you you get very “Q. me.” Do feel did A. It left ? definite relief from the medicine? M. Tatum: A. Mrs. F. certainly you I have occasion to did. did “Q. Snelling you your pain? “Q. account of Did relieve Dr. consult joints? Yes, Certainly your you A. did.” A. ailment Walter Y. Cross: I did. you you suffering “Q. tell time Will the Court At that what “Q. body? My you your A. knee caused the condition are in at what present you paining the suffering time —what me some. have been Snelling give you from? A. Diabetes Did Dr. “Q. A. Gave this—me rheumatoid arthritis. for this? medicine (Reached Tri Wonda you “Q. At the time took Tri Wonda evidence). exhibit which is you suffering for the first time how were according pre- you take Did “Q. pain time reference to scription? Yes. A. joints your body? Yes, A. I had a results, any, you get if did What “Q. my arms, lot neck and back quite Helped me a bit— it? A. *9 my legs. and some in maybe six weeks—don’t taken time — long you compara- “Q. At this date are in pain a while the how know —after comparative tive comfort conditions taking quit it. ceased— taking Oh, yes, before Tri-Wonda? A. your definitely got pain re- definitely.” You “Q. Yes, I A. did.” a result it? as lieved Mrs. Cennie Bell Anderson: E. Cuevas: * Mr. C. * * you suffering, “Q. were how you parts Cuevas, your Mrs. Anderson? What at the time came Mr. “Q. body pain? Snelling you in tell were involved will the Court It Dr. A. to see suffering? my my limb, foot, you A. started in All left knee were in and in how joints my knuckles, knees and the both thumbs. my shoulder. back

859 Mississippi rule, is the one majority a little The is think, too, I F.R.C.P.,5 here, applicable 43(a) experts, doubtless Rule led appellee’s on hard syllabus *majority thus in quoted is stated first in the passage King King 51, Wigmore’s 1931, Miss. al., work v. et 161 opinion Professor majority denomi- 134 So. well 827: The on Evidence. “Wigmore’s com- quotes what nates as testify expert, “To as witness quotation shows The ment.” possess need not be or infallible personal opinion, the author’s testify highest degree skill; show will cited cases examination ‘expert,’ generally as it is sufficient support com- of them none both that peculiar possesses that witness any federal that no case ment and knowledge respecting matter involv- cited Mississippi likely court possessed court or ed not or- to be 6 layman.” dinary support of it. joints al., Cir., Holderby not? or White et 1951, swollen al. v. 5 et “Q. Were They 722; 192 F.2d and Petroleum Car- were swollen. A. began taking Corp. you 1947, Snyder, Tri rier v. Before “Q. Anderson, you Wonda, tell Mrs. swelling and or not whether Court Floyd State, 1933, 6. See also 166 Miss. walking your you pain had affected had 15, 226, Supreme 148 So. where the get- hurt it had. I A. Indeed not? or ting up reversed morning and would below because the court just things feet slide on to hold give profes- refused to let a doctor his along. opinion sional that a second blow could taking you Tri After been “Q. person not have been self-inflicted you be- at least three weeks Wonda already who had been struck one blow. gan I would or A. walk better not? Supreme The Court stated: “It true improving. kept I on better walk that Dr. Crisler have had more ex- my work now.” perience higher training surgeon, as a or Edwin W. Whitehead: Mr. student, Sigrest hut had been Dr. you At- time consulted Dr. At the “Q. general practitioner trained as a and had your How was condition? what wood * * * years’ experience. [We had 30 you suffering? you What caused were physician think] that a who’ had made hurting. Doctor A. I suffer? study body profes- the human my hips, arthritis. It was in said it sion, practice, and who had considerable legs back, down— from the knees on expert.” called an could be bad. And J. W. Sanders Cotton Mill v. or not? A. Some. “Q. Swollen Moody, 1940, Miss. So. you Referring to “Q. chiropodist the court held Yes, suffering A. much or not? expert interpre- as an could sir. X-ray pictures respecting tation * * * you taking Tri had been “Q. injuries generally though to the foot even gave Doctor Wonda training ordinarily had not had he prescribed bottle, you and as it to taking required physician. of a said on the bottle? A. it like it State, 1948, And Wallace v. Yes. 703, 704, 35 So.2d Miss. you time how did feel At “Q. Mississippi quoted 20 Am.Jur. began IA. to feel better. “Any page its statement that: you During all con- time “Q. has, experience, person sufficient this medicine? A. Yes. to take tinued adequate acquired knowledge X-rays you the Court whether con- Tell “Q. interpretation may qualify improve yes, A. Oh not. tinued repeated The court a witness.” also that yes sir. peculiar possesses if sufficient he “It knowledge, swelling, reference to the “Q. With wisdom, or information re- joints that were occurred what subject acquired matter, garding the go affected, down not? It did it A. observation, experi- study, investigation, down.” went practice, possessed by ence typical foregoing testimony is layman inexperienced ordinary per- *10 by twenty-two lay given the wit- that son.” testifying for the defendant. nesses 5. Life Insurance v. Schlat- New York Co. 184; al., Cir., 1953, 203 F.2d ter et rheumatism, Supreme symptoms holdings by to be These the general Mississippi and in line with the the etc. Under seem be testimony general by Mississippi law, lay the rule announced American the as 785, by compe- Jurisprudence, Evidence, 20, the admitted court below § Vol. p. may 659, tent.7 one be where it is held that although

competent testify expert as an really majority What holds here the qualified highly ishe not shown to be wrong is that the trial court the drew speak upon subject, is the “It and that: competent testi- conclusions the usually pro- any person held that whose mony. agree holding. I cannot that subject fession or vocation deals with the sup- ample I think there was is hand entitled to heard as an be port findings the trial court’s and con- leaving expert, the his evidence value of clusions to the as facts. by to be tested cross-examination and Surely this case is not ruled United jury.” determined the Hoxsey al., States v. Cancer et Clinic my opinion 1952, majority is It 198 F.2d We held that also that the Hoxsey represented is too strict literature used in its attitude towards testi- mony lay drugs that cure some All involved would witnesses. that is left internal this inter- case deals cancers relieve other with the treatment of symptoms. lay nal cancers.8 before us the witnesses the case knew their symptoms enjoined, specifically own trial hap- as will what knew pened appear quotation symptoms to those from the in Note 1 when the ac- supra, printed cused were the use written or administered. Those suggests, represents matter were “which admitted all of the directly drugs, indirectly, that Government and the [Page purpose Mississippi 276] “For of this Court of Valley determining Moody, Pearl 1937, River decision and the truth of R. Co. accept representations, 178 Miss. such 171 So. we will sanc- receipt testimony given by position, tioned more restricted to which the lay witness, driven, precise in an action to recover is that injuries sustained, extent successful immaterial as to his cures continu- suffering. since, repre- Also, contended, ous in Illinois Williams, 1926, Cent. R. Co. et al. v. sentation that by be effected cure can Miss. 110 So. use of medicine is false and mis- was held * * * by Mississippi Supreme leading. It difficult to Court that im- jury agine thinking instruction was correct that one himself inflicted permitted dire cancer and consideration with the disease of given concerning physical pain reading considering the references suffering party, holding patients, endured to these listed and the testi- mony competent. forth, there would reach other conclusion than that This law as stated persons the courts of cancer listed cured of Mississippi appears also Hoxsey drugs. ac- law, cord as it is “ * * * [Page 280] Our eonsider- 518, p. in 32 C.J.S. Evidence § 191: tion of the record and the nature of the expert lay may non “While a witness has issues involved led to the firm con- expert give physi- as to his Court’s clusion that condition, simple cal he state infer- representations in the label- fact that the subjec- ences drawn from his conscious misleading, false were neither nor concerning tive sensations such condi- pink colored brownish-black tion;” Am.Jur., Evidence, § medicines were efficacious in cure 859, p. 720; “One, expert, may not an man are cancer in erroneous. state of his own health.” [Page “Furthermore, 281] following quotation, up held, weight overwhelming 8. The made of sev- long requires eral disconnected statements credible evidence a conclusion Hoxsey representation demonstrates representations liquid construed there con- medicines are efficacious in the assuring reading demned those it that false and mis- cui-e leading.” cancer likewise drugs would cure internal cancer:

861 drug, between them from them, have been had or similar or either disposition filing date until adequate for cure * * this civil action. or rheumatism. form of arthritis por- Appellee from that did not claiming she judgment, tion The trial lived with the whole representations. controversy intimately period no such had made repre- involves, not years, us case before about the conclusions four repre- concerning cures, upon sentations reached him were based a “feel” relating alone to relief possibly acquire. sentations of the ease we could not finding “miseries” I do not think we should disturb a con- able, under judgment the maladies attendant entered such an experienced judge sideration. conscientious and as the one who sat on this case without showing my opinion clear merits abuse of discretion. While it is the case should not be reached and that policy That has been the of this Court ought, ap- on the motion to dismiss years, Walling many v. Florida Hardware peal, be sent back to the trial court 1944, o., 444; 142 C F.2d Mitchell handling, ma- I think that Hodges Contracting 1956, al., Co. et jority opinion fails demonstrate 381; Bland, 380, 238 F.2d Mitchell v. the trial conclusions of 1957, 808, 811; 241 F.2d Mitchell v. court are erroneous. Transportation Co., Strickland 267 821; and our have been based decisions III. upon Supreme Court decisions.9 Finally, unwise, think it I Lublin, McGaughy In Mitchell v. this, such as substitute our Asso., 1959, 215, 207, 358 U.S. 79 S.Ct. refusing judge for that the district 260, 3 L.Ed.2d injunctive granting connec- relief in supra referred to decision in our Bland tion statutes with enforcement of page F.2d, 241 810 of which we formulae such as before us. The quote; originated about here involved been by Reverend H. A. Hall seems 1900 “But consider these con- successfully un- controlling marketed impor- them siderations stipulated assuming til 1938 when he appellant’s about tance. Even Department the United States Post Office contentions be sound in in- both using to discontinue in connec- stances, mail would have been marketing them, confining justified granting tion with his deny- in either injunctive thereafter State of Florida. relief under the broad began appellee’s lodged connection them accepted discretion in it being when, equitable from rheu- principles. sufferer matoid she the Hall first took evidently “The trial Court reached products improvement and attributed her the conclusion that more could be development them. The sale of accomplished towards enforcement products “Tri- under the name of bringing of the law and ap- towards experience. followed that Wonda” cooperative pellant conformity into provisions by withholding with its began in- Officials remedy injunction the drastic vestigating vari- in 1951 and * using dealings, controversial, it. most than of them ous Bowles, 1944, as Railroad Texas Co. v. U.S. Such Commission of Co., 1941, v. Pullman L.Ed. 312 U.S. S.Ct. 971; Hecht L.Ed. S.Ct. *12 Court problem before “The America, UNITED STATES litigation be- not involve below did Appellant, only; private individuals tween two business primarily to the it related al., Appellees. L. et C. CHAPMAN public interest public primary considera- was entitled to No. 6108. * * * tion. Appeals United States Court of Tenth Circuit. expressed ideas were “The same July dealing Supreme Emer- Rehearing Aug. enforcement Denied with the gency Act, 50 U.S.C.A. Price Control seq., Appendix, et in a § problem presented

wherein

quite similar that before involved

Court in this case. Hecht

prayer injunctive where relief

spot than of seven out of more check large departments of a

one hundred five

store revealed four thousand law.

hundred violations of hearing,

After a full District

Judge injunction pursuant to denied general equity powers:

its ‘In a case injunction should thereby unless com- issue better

pliance with be enforced law * my judgment

injunction public would not ’ interest The Court

Appeals for the District of Columbia theory

reversed on the Dis- Judge

trict had too wide powers.

sweep equity to traditional granted certi-

orari and reversed the action of Appeals approving Court of what District Court done presents think the

I case before us stronger appeal approving

much judge’s

district use of than his discretion

any of mentioned. those recognition appel- think that the

I belongs

late courts discretion

uniquely to the district courts is of importance and, great

very rea-

son, felt constrained to set I down length grounds dissent

in this case.