
    MACKENZIE v. SODEN MINERAL SPRINGS CO.
    
      N. Y. Supreme Court, Special Term, First District,
    
    
      July 1, 1891.
    1. Injunction; ignjoining a' libe A A physician may enjoin the advertisement of an unauthorized recommendation of a medicinal preparation under his name upon the grounds that such publication is injurious to his professional reputation, an infringement of his right to the sole use of his own name, and prejudicial to public interest
    
    2. Forms.] Form of complaint and preliminary injunction order in an action by a physician to enjoin an unauthorized use of his name in connection with a medicinal preparation.
    Motion to continue an ex-parte injunction.
    The action was brought by Sir Morell Mackenzie against the Soden Mineral Springs Company and Eisner & Mendelson Company. The following were the allegations of the complaint:—
    
      First. That plaintiff is a physician and surgeon residing in London, England,and practising his profession there and elsewhere; that plaintiff, for his attainments and services in the cause of medical science, has been knighted and is widely known in England, America and elsewhere by his name and title of Sir Morell Mackenzie as a specialist in diseases of the throat, and as such is frequently consulted by physicians and others in and from the United States of America, where he has a widespread and well-established reputation as an authority upon the treatment of diseases of the throat.
    , Second. That defendant, Soden Mineral Springs Company, Limited, is a domestic corporation, organized and existing under the laws of the State of New York, with a capital of two hundred and fifty thousand dollars, and is extensively engaged in a manufacture and sale of a medicinal preparation known and described by it as “ Soden Mineral Pastilles” as its sole business; and, upon information and belief, that the defendant, the Eisner and Mendelson Company, is a foreign corporation engaged in business in the city and county of New York, and that it is acting as the agent for the sale of the said Soden Mineral Pastilles.
    
      Third. That the defendants, as an inducement to the public to purchase said pastilles and as evidence of their merits, have placed around each box of said pastilles a printed or written slip containing the words “The Soden Mineral Pastilles are specially beneficial in catarrhal diseases of the air passages, which include sore throat, coughs, bronchitis, and lung troubles,” and after said words there is printed the plaintiff’s name, “ Sir Morell Mackenzie,” in pretended fac-simile of this plaintiff’s signature ; that one of said printed slips, taken from a box of said pastilles, is annexed thereto and marked “ Exhibit A.”
    
      Fourth. That defendants have extensively advertised and are now extensively advertising said pastilles throughout the United States, and in such advertisements are setting forth that the same are approved and commended by this plaintiff, and stating among other things, in such advertisements, that “the genuine Soden Mineral Pastilles must have the testimonial and signature of Sir Morell Mackenzie around each box that a copy of one of said advertisements taken from the New York Times 
      of March 18, 1891, is annexed hereto and marked “ Exhibit B.”
    
      Fifth. That defendants are also issuing with said pastilles a circular containing a printed letter purporting to be of this plaintiff, of which the following is a copy:
    ■“ 19 Harley Street,
    “ Cavendish Square, W.
    “ Sir Morell Mackenzie writes : ‘ 1 have watched the effects of the Soden Waters for a considerable period and regard them as extremely valuable in obstinate catarrhal affections of the throat. The small amount of iron which they contain renders them very useful in the stages of throat consumption, and they do good in nearly all cases of relaxation of the mucous membrane.
    
      “ ‘ The Pastilles offer a most convenient method of using the waters, producing both a local and general effect. They are especially beneficial in catarrhal diseases of the air passages; I have frequently found them of great service in the case of singers and public speakers.’
    “ (Signed)
    “ Morell Mackenzie, M. D.
    “ London.
    “ Late physician to. the London hospital, consulting physician to the hospital for diseases of the throat, Golden Square, and physician to the royal society of musicians.
    “ September 2, 1887.”
    That a copy of said circular is annexed hereto and marked “ Exhibit C.”
    
      Sixth. That said defendant, the Eisner & Mendel-son Company, as sales agent of the defendants the Soden Mineral Springs Company, Limited, or on its own behalf and for its own profit, has published -and circulated said advertisements, circulars and wrappers containing alleged letters and statements by plaintiff commending said Soden Mineral Pastilles, and continues to publish said advertisements, circulars and wrappers extensively. That said defendants have offices together and are united in some manner, the particulars of which are unknown to plaintiff, in the sale of said Soden Mineral Pastilles, and in the publishing and circulation of said circulars, wrappers and advertisements calling attention to and commending the same, and both said defendants derive profit from such unauthorized use of plaintiff’s name.
    
      Seventh. The plaintiff has no knowledge of the merits or value of the said pastilles which are being made and sold by defendants, nor of their composition nor effect. That he does know of a preparation made of the Soden Waters evaporated, and has guardedly and, under certain circumstances, recommended the same; but this plaintiff has not at any time given to defendants any right or authority to use his name in commendation of their said pastilles or in any other manner whatever, nor to use any of the advertisements or statements purporting to come from plaintiff, and thus fraudulently held out to the public as being the plaintiff’s.
    
      Eighth. That plaintiff denies that the letters and statements attributed to him in said Exhibits “ A, ” “ B ” and “ C,” or any of the other advertisements and circulars issued by defendants are true copies of any letters which he has at any time heretofore written. He denies that he has at any time written any letters whatever to these defendants, or either of them, and he avers that, if at any time any letters have been written by him to any person whomsoever in which he commended any pastilles or preparations made from the Soden mineral spring water, said letters were not for publication, and that whatever right of publication existed in such letters belonged to this plaintiff.
    
      Ninth. That said use of plaintiff’s name by defendants, and trading upon his professional reputation in their said advertisements, circulars, wrappers and other publications is a fraud upon the public and upon this plaintiff ; is wholly unauthorized, and is injurious to plaintiff’s professional standing and reputation, and offensive to his feelings. That, as it is part of the written and unwritten code of medical ethics in the civilized world that a practicing physician shall have no interest in any proprietary medicine or surgical instrument, and that he shall not recommend any medicines which are known as patent or proprietary medicines for general use by the public without their being recommended for the special case of the disease under the advice of the physician, any such ownership or recommendation by a physician does injury to the public, casts reproach upon him, the physician recommending the same indiscriminately injures his medical standing and reputation, and commits lasting and permanent injury to his standing with patients and his professional brethren, not only because such ownership or recommendation constitutes a breach of professional ethics, but because such recommendation implies a disregard of the scientific truth that no medicine of any kind can be safely recommended to the laity for general use without regard to the special circumstances of the patient’s case. That, in addition to the breach of professional etiquette and duty thus committed by a physician who recommends proprietary medicines for purposes of advertisement and for general public consumption, a suspicion is cast upon the physician that he has a personal pecuniary interest in the medicine that he recommends or is thus recommended, to the great and irremediable loss of his professional prestige and personal standing.
    
      Tenth. That plaintiff has received many intimations and evidences of loss of esteem and practice arising from defendant’s said publications, and has come to personal pecuniary loss thereby. That the continuation of these publications injures and has a tendency to injure more and more the professional standing of the plaintiff and the income which he derives from his profession; and that much injury in that regard had already resulted to plaintiff therefrom ; to his damage, as he is informed and verily believes, in the sum of more than ten thousand dollars ($10,000).
    
      Eleventh. That there is no other physician of the name of plaintiff having any repute as an authority on diseases of the throat, and that in the use of the name of Sir Morell Mackenzie in the said advertisements, circulars, wrappers and other publications, defendants refer to and mean this plaintiff.
    
      Twelfth. That plaintiff asks for an injunction pendente lite, and for a permanent injunction against said unwarranted and improper use of his name by these defendants. That plaintiff has no adequate and available remedy at law against said publications by apy action for damages, inasmuch as the injury is a continuous one and would involve endless litigation, and is furthermore of such a nature, affecting plaintiff’s reputation in places far remote from each other throughout Great Britain and America, that its extent could not be measured or estimated, or proof of the full measure thereof procured, and that plaintiff is remediless at law.
    Wherefore, plaintiff prays for judgment:
    (1) That the defendants, their officers, agents, servants and sales agents, be forever enjoined and restrained from publishing or circulating any letter or part of a letter written by plaintiff or alleged to have been written by him, and from publishing or advertising any statement or opinion at any time expressed by plaintiff, or alleged or pretended to have been expressed by plaintiff regarding Soden Mineral Pastilles or any other medicinal preparation, and from in any manner using or publishing plaintiff’s name in their business or in aid or furtherance thereof
    (2) That the said defendants, their agents and servants, and all other persons circulating or publishing said advertisements, circulars or wrappers, or any other publication, circular, cut or device containing any recommendation by plaintiff of said Soden Mineral Pastilles, or having any such advertisement, circular, publication, cut or device in his or their possession or control, be required to surrender the same to be destroyed.
    (3) For a temporary injunction against the acts aforesaid during the pendency of this action.
    (4) For such other and further relief as may be just in the premises.
    (5) For ten thousand dollars ($10,000) damages by reason of the acts aforesaid, together with the costs of this action.
    The substance of the exhibits annexed are stated in the complaint.
    
      Simon Sterne, for plaintiff.
    I. The acts complained of are an unwarrantable invasion of the reasonable right of privacy (Citing, Article in Harvard Law Review, December, 1890, on the Right of Privacy), Prince Albert v. Strange, 2 DeG. & Sm. 652; Millar v. Taylor, 4 Burr. 2378 ; Pollard v. Photographic Co., 40 Chan. Div. 345; Manola v. Stevens, N. Y. Supreme Ct., N. Y. Times, June 15, 18, 21, 1890; Schuyler v. Curtis, 27 Abb. N. C., 387.
    II. The labels wrere injurious to plaintiff’s professional reputation, and an injury to that reputation is an injury to property (Citing, Dixon v. Holden, L. R. 7 Eq. Cas. 488, 492); Rauth v. Webster, 10 Beav. 561; Clark v. Freeman, 11 Id. 112 ; Springhead Cotton Spinning Co. v. Riley, L. R. 6 Eq. 551 ; Maxwell v. Hogg, L. R. 2 Ch. 307; Lewis v. Chapman, 16 N. Y. 372). Charging an infraction of professional rules is an actionable wrong (Citing Hunter v. Sharpe, 4 F. & F. 983). The libel may be enjoined (Citing Quartz Hill G. M. Co. v. Beall, 20 Chanc. Div. 501 ; Beddaw v. Beddaw, 9 Id. 89 ; Thomas v. Williams, 14 Id. 864; Loog v. Beam, 26 Id. 306; Rollins v. Hinks, L. R. 
      15 Eq. 355; Liebig’s Extract of Meat Co. v. Anderson, 55 L. T. 757; Fyfe v. Gray, 73 Law Times (newspaper) 309; Watson v. Trask, 6 Ohio, 531.
    III. The publication of the false recommendation was a fraud on the plaintiff, and upon the public (Citing Perry v. Truefit, 6 Beav. 66; Croft v. Day, 7 Id. 84; Devlin v. Devlin, 69 N. Y. 212 ; Blumthal v. Straus N. Y. Sup. 393 ; Morgan v. Schuyler, 79 N. Y. 490).
    IV. An individual has a property in his own name (Citing Hogg v. Kirby, 8 Vesey, 215 ; Farmer’s Loan & Trust Co. v. Farmer’s Loan & Trust Co. of Kansas, 21 Abb. N. C. 104, 109; Maxwell v. Hogg, L. R. Eq. App. 310; Lord Byron v. Johnson, 2 Mer. 29).
    V. A letter cannot be published without the writer’s permission (Citing Jackson v. Babcock, 4 Johns. 418 ; Woolsey v. Judd, 4 Duer. 379 ; 2 Story’s Eq. Jur. § 946 ; Thompson v. Stanhope, Amb. 737; Gee v. Pritchard, 2 Scvau 416 ; Pape v. Curl, 2 Alk, 342 ; Folsom v. Marsh, 2 Story, 160; Eyre v. Higbee, 15 How. Pr. 45 ; Kiernan v. Manhattan Quotation Co., 50 Id. 194, 201).
    
      Melville Eggleston, for defendant.
    
      
       See the last two cases, and note to the last but one.
    
   Truax, J.,

made the following order continuing the injunction :—A motion having heretofore been made on behalf of the plaintiff for an order of injunction during the pendency of this action, or until the further order of the court.

Now, on reading and filing the complaint herein, verified July 17, 1891, and the affidavits of Simon Sterne, verified June 16, 1891 ; Clarence C. Rice, M. D., verified June 17, 1891 ; Morell Mackenzie, verified June 30, 1891 ; and of Norbert Heinsheimer, verified July 9, 1891, in support; and the affidavits of Moritz Eisner, verified June 22, 1891 ; and of Joseph Mendelson, verified June 23, 1891, in opposition, from which it satisfactorily appears to me that'the plaintiff demands, and is entitled to, an injunction against the said defendants restraining the commission and continuance of all acts which, during the pendency of the action, would produce injury to the plaintiff, to wit, publication of certain advertisements, circulars and wrappers of a certain proprietary medicinal preparation known as “ Soden Mineral Pastilles,” which advertisements, circulars and wrappers contain copies of alleged letters of plaintiff commending said Mineral Pastilles, and from using the name of plaintiff without his consent as a guaranty of the merit of said medicinal preparation, and that the commission of continuance of this act would produce injury to the plaintiff, in that the plaintiff would thereby suffer damage to his professional standing and income as a physician, and an infringement of his right to the sole use of his own name, and that such use of plaintiff’s name and reputation, contrary to his wish, is, under the circumstances in the complaint and affidavit detailed, misleading and prejudicial to the public interest, and the plaintiff having given an undertaking in the sum of - five hundred dollars ($500) as required by law, and after hearing Simon Sterne, Esq., of counsel for the plaintiff, and Melville Eggleston, Esq., of counsel for defendant Eisner & Mendelson Company, on motion of Simon Sterne, Esq., attorney for the plaintiff, it is hereby

Ordered, that the defendant the Eisner & Mendelson Company, and the defendant the Soden Mineral Springs Company, Limited, their agents, attorneys, servants, and all others acting in aid or assistance of said defendants, and each and every of them, be and they are hereby restrained, prohibited, and enjoined, under the penalties of the law prescribed, from publishing any letter or part of a letter written, or alleged to have been written, by plaintiff, and from publishing or advertising any statement or opinion, at any time expressed, or alleged to have been expressed, by plaintiff regarding Soden Mineral Pastilles, or any other medicinal preparation, and from in any manner using or publishing plaintiff’s name in their, defendant’s, business, or in furtherance or aid thereof during the pendency of this action, and until the final judgment herein shall have been duly entered, except that the said defendant, the Eisner & Mendelson Company, may, during the pendency of this action, and until the entry of final judgment herein, publish true and correct extracts from the published writings of Sir Morell Mackenzie, the plaintiff, or writings by him authorized by him to be published, giving the date and source of such publication, but without using the signature of the plaintiff, or a pretended fac-simile thereof, and only in such a way as not to convey the impression that the said extracts had been addressed in the form of a letter to the defendants, or either of them.

And that the defendant, the Eisner & Mendelson Company, pay to' the plaintiff’s attorney $10 costs of this motion.  