(dissenting).
I.
(a) This appeal by the United States is based upon 28 U.S.C.A. § 1291 investing this Court with jurisdiction of appeals from all final decisions of the district courts. The appellee filed and served a motion to dismiss the appeal upon the ground that the district court specifically retained jurisdiction of a portion of the claim sued on by appellant and that the judgment appealed from was not, therefore, a final judgment within the meaning of said statute. This Court ordered that the motion be argued along with submission of the appeal upon its merits, and that course was followed. In my opinion the motion of the appellee should be granted and the case should be remanded for such further hearing as the trial court may order, and the entry of a final judgment.
It is necessary to understand that the court granted appellant an injunction exceedingly broad in its terms, as will appear from copy thereof set out in the margin.1 The judgment did not grant *856appellee any injunction licensing her to introduce any drug at all into interstate commerce.
The majority opinion states that the United States complained of the “permissive part of the order,” which it quoted in paragraph 2 of the opinion. This statement was not made in the injunction portion of the judgment appealed from, but it was merely a recital in the preliminary paragraphs of the decree that the Government had failed to prove its claim with respect to whether the drugs were beneficial in a substantial number of cases in the relief of some symptoms of the diseases such as pain, soreness, swelling, constipation, etc.2
Patently, in order to leave its finding No. 29 and its recital in the introductory portion of the order appealed from open for further testimony or action by either party, the court added, as the last paragraph (except that dealing with costs) of the injunctive order, the following:
“6. Ordered, adjudged and decreed that the jurisdiction of this Court is retained for the purpose of enforcing this decree and for the purpose of granting such additional relief as may hereafter appear necessary or appropriate * * * ”
This plain retention of jurisdiction by the court below, under the undisputed circumstances as set forth above, in my opinion, rendered the judgment unappealable. The general rule in such matters was thus stated by the Supreme Court in Covington v. Covington First National Bank, 1902, 185 U.S. 270 (syllabus) 22 S.Ct. 645, 46 L.Ed. 906:
“Matters within the pleadings in this case having been left undetermined by the court below, and the cause having been detained for the purpose of thereafter passing upon them, and for the entry of a further decree, the decree entered below was not final, and this Court is without jurisdiction to pass upon it.” 3
It is provided in Rule 54(c) F.R.C.P.: “ * * * every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled * * * it
Under this rule and the language of § 1291 the case before us comes, in my opinion, precisely under our holdings in King v. California, Co., supra.
*857(b) If appellant thought, as it now claims, that the judgment of the court below was “Ambiguous and Inconsistent” as it argues in the first point in its brief, it had the right under Rule 59(e) to serve “A motion to alter or amend the judgment not later than ten days after entry of the judgment.” Having failed so to do, it cannot, in my opinion, attempt to put the court in error by a point raised for the first time on appeal. The judgment showed clearly on its face that it was not final and that jurisdiction was retained for further hearing on the very matter upon which appellant lays most stress. The right to appeal to this Court is statutory and the right does not, in my opinion, for the reasons set forth, exist.
II.
I am unable to follow the majority in holding that the district judge was clearly erroneous in his holding that the drugs in question had been shown to be beneficial in the treatment of certain symptoms in a substantial number of people. This case was at issue in the early part of March, 1954 and was tried at intervals when the district court could get around to it until its opinion was rendered October 22, 1958. The judgment appealed from was not entered until January 16, 1959. In nearly all instances the court heard the vast number of witnesses testify personally. The record is in nineteen volumes and contains 3,759 pages. Unless an appellate court is to read all of those pages, I do not see how it is in position to adjudge the findings of fact of the court, which heard all of the witnesses testify and all of the arguments and objections, were clearly erroneous under Rule 52, F.R.C.P.
I do not think we should be overawed by the asserted high standing of some of the Government’s witnesses. The United States is a rich litigant and is able to produce the best in the way of expert testimony. Without reflection upon this character of testimony it can be said that all lawyers of experience know that experts generally stick pretty close to the line of the testimony of the litigant which employs them.
Appellee’s experts were general practitioners who were constantly called upon to treat people suffering from arthritis, rheumatism and the other maladies which the accused literature dealt with. Such doctors acquire necessarily a good working knowledge of palliatives which will give a measure of relief, even though probably temporary, to the symptoms attending those ailments. Certainly the Government does not desire that the average doctor be encouraged to sit idly by and permit people to suffer day after day because those in higher places have not discovered a cure for these common maladies. The trier of facts in this case had the right to consider their testimony and to give it such weight as he thought it deserved.
The average man also has a pretty good idea of the symptoms which go with rheumatism and arthritis. Sufferers from them are legion and nobody, it seems to me, would deny that a witness may testify to the symptoms he has as the result of a malady diagnosed by a medical man as rheumatism or arthritis, and to testify that certain drugs have given him relief. That is all that the appellee’s witnesses attempted to do, and that is the sole question involved in this appeal, that is, relief of certain symptoms to a substantial number of people suffering from the maladies listed in the judge’s findings.
The majority opinion does not attempt to analy2;e the testimony of the laymen who stated unequivocally that they were sufferers from these maladies and that their sufferings were alleviated by the use of the drugs in question. As a matter of interest, it will be found that twenty-two laymen did so testify. Excerpts from their testimony are set forth in the margin.4 Even if, qs indicated in a gen*858eral way in the majority opinion, some inconsistencies developed or contradictions arose, the trial court had the duty of considering all of the testimony and arriving at the conclusion which to it was most consonant with the truth.
*859I think, too, that the majority is a little hard on appellee’s experts, led doubtless by the passage quoted in the *majority opinion from Professor Wigmore’s work on Evidence. The majority well denominates what it quotes as “Wigmore’s comment.” The quotation shows that it is the author’s personal opinion, and an examination of the cases cited will show both that none of them support the comment and that no case from any federal court or any Mississippi court is cited in support of it.
The Mississippi rule, which is the one applicable here, Rule 43(a) F.R.C.P.,5 is thus stated in the first syllabus of King v. King et al., 1931, 161 Miss. 51, 134 So. 827:
“To testify as an expert, witness need not be infallible or possess highest degree of skill; to testify as ‘expert,’ it is generally sufficient that witness possesses peculiar knowledge respecting matter involved not likely to be possessed by ordinary layman.” 6
*860These holdings by the Supreme Court of Mississippi seem to be in line with the general rule as announced by American Jurisprudence, Vol. 20, Evidence, § 785, p. 659, where it is held that one may be competent to testify as an expert although he is not shown to be highly qualified to speak upon the subject, and that: “It is usually held that any person whose profession or vocation deals with the subject in hand is entitled to be heard as an expert, leaving the value of his evidence to be tested by cross-examination and determined by the jury.”
It is my opinion also that the majority is too strict in its attitude towards testimony of lay witnesses. All that is left in this case deals with the treatment of symptoms. The lay witnesses knew their own symptoms and they knew what happened to those symptoms when the accused drugs were administered. Those symptoms were admitted by all of the witnesses for the Government and the appellee to be symptoms of rheumatism, arthritis, etc. Under the general and the Mississippi law, the lay testimony admitted by the court below was competent.7
What the majority really holds here is that the trial court drew the wrong conclusions from the competent testimony. I cannot agree with that holding. I think there was ample evidence to support the trial court’s findings and conclusions as to the facts.
Surely this case is not ruled by United States v. Hoxsey Cancer Clinic et al., 5 Cir., 1952, 198 F.2d 273. We held that the literature used in Hoxsey represented that the drugs involved would cure some internal cancers and relieve other internal cancers.8 In the case before us the trial court specifically enjoined, as will appear from the quotation in Note 1 supra, the use of any written or printed matter “which represents or suggests, directly or indirectly, that the drugs, *861or either of them, or any similar drug, is a cure or adequate treatment for any form of arthritis or rheumatism. * * ” Appellee did not appeal from that portion of the judgment, claiming that she had made no such representations. The case before us involves, not any representations concerning cures, but representations relating alone to relief from some of the symptoms or “miseries” attendant upon the maladies under consideration.
While it is my opinion that the merits should not be reached and that the case ought, on the motion to dismiss the appeal, to be sent back to the trial court for further handling, I think that the majority opinion fails to demonstrate that the findings and conclusions of the trial court are clearly erroneous.
III.
Finally, I think it is unwise, in a case such as this, to substitute our judgment for that of the district judge in refusing or granting injunctive relief in connection with the enforcement of statutes such as that before us. The formulae here involved had been originated about 1900 by Reverend H. A. Hall who seems to have marketed them successfully until about 1938 when he stipulated with the United States Post Office Department to discontinue using the mail in connection with them, confining his marketing thereafter to the State of Florida. The appellee’s connection with them began in 1950 when, being a sufferer from rheumatoid arthritis, she first took the Hall products and attributed her improvement to them. The development of the sale of the products under the name of “TriWonda” followed that experience.
Officials of the Government began investigating the appellee in 1951 and various dealings, most of them controversial, have been had between them from that date until the filing and disposition of this civil action.
The trial court lived with the whole controversy intimately for a period of about four years, and the conclusions reached by him were based upon a “feel” of the ease we could not possibly acquire. I do not think we should disturb a finding and judgment entered by such an able, conscientious and experienced trial judge as the one who sat on this case without a clear showing of abuse of discretion.
That has been the policy of this Court for many years, Walling v. Florida Hardware Co., 1944, 142 F.2d 444; Mitchell v. Hodges Contracting Co. et al., 1956, 238 F.2d 380, 381; Mitchell v. Bland, 1957, 241 F.2d 808, 811; Mitchell v. Strickland Transportation Co., 267 F.2d 821; and our decisions have been based upon Supreme Court decisions.9
In Mitchell v. Lublin, McGaughy and Asso., 1959, 358 U.S. 207, 215, 79 S.Ct. 260, 3 L.Ed.2d 243, the Supreme Court referred to our decision in Bland supra at page 810 of 241 F.2d, from which we quote;
“But we do not consider these considerations of controlling importance. Even assuming appellant’s contentions to be sound in both instances, the Court would have been justified in either granting or denying injunctive relief under the broad discretion lodged in it by accepted equitable principles. * * *
“The trial Court evidently reached the conclusion that more could be accomplished towards enforcement of the law and towards bringing appellant into cooperative conformity with its provisions by withholding the drastic remedy of injunction than by using it. * * *
*862“The problem before the Court below did not involve litigation between two private individuals only; it related primarily to the business of the public and the public interest was entitled to primary consideration. * * *
“The same ideas were expressed by the Supreme Court in dealing with the enforcement of the Emergency Price Control Act, 50 U.S.C.A. Appendix, § 901 et seq., in a case wherein the problem presented was quite similar to that before the Court in this case. Hecht involved a prayer for injunctive relief where a spot check of seven out of more than one hundred departments of a large store revealed four thousand five hundred violations of the law. After a full hearing, the District Judge denied injunction pursuant to its general equity powers: ‘In a case such as this an injunction should not issue unless thereby better compliance with law may be enforced * * * and in my judgment an injunction would not be in the public interest * * * ’ The Court of Appeals for the District of Columbia reversed on the theory that the District Judge had given too wide a sweep to traditional equity powers. The Supreme Court granted certi-orari and reversed the action of the Court of Appeals approving what the District Court had done *
I think the case before us presents a much stronger appeal for approving the district judge’s use of his discretion than any of those mentioned.
I think that the recognition by appellate courts that discretion belongs uniquely to the district courts is of very great importance and, for that reason, I have felt constrained to set down at some length the grounds of my dissent in this case.
. “ * * * and it is further ordered, adjudged and decreed.
“2. That Lela S. Wier * * * be and they are hereby perpetually enjoined and restrained under the provisions of 21 U.S.C. 332(a) from directly or indirectly introducing or causing to be introduced or delivering or causing to be delivered for introduction into interstate commerce, an article of drug known as ‘Tri-Wonda.’ ‘Tri-Wonda Treatment’, ‘Tri-Wonda No. 1’, ‘Tri-Wonda No. 2’, ‘Tri-Wonda No. 3’, or any other name, consisting of the following ingredients: [giving in detail the constituent chemicals] * * * or any similar drug, the labeling of which, is false or misleading in any particular, and more specifically any such drug which is accompanied by the leaflets introduced in evidence as exhibits, entitled ‘You May Now Profit by the Experience of Others’, ‘Attention Arthritics’, the letters entitled ‘Special Bulletin’, ‘Dear Friend’, ‘Thank you for your letter of recent date’, T am glad to tell you about my experience’, and testimonial letters from users of Tri-Wonda, or any other written, printed, or graphic matter, which represents or suggests, directly or indirectly, that the drugs, or either of them, or any similar drug, is a cure or adequate treatment for any form of arthritis or rheumatism, or that they are beneficial, or give relief or have any value for all forms of arthritis and rheumatism, or that they are beneficial, effective, or have any value in the cure, mitigation, relief, or treatment of muscular aches, pains, soreness, stiffness, and swellings which accompany gouty, tubercular, gonococcic arthritis or arthritis due to specific types of infection, sciatica or neuritis; and it is further
“3. Ordered, adjudged and decreed that the defendant, Lela S. Wier, * * * be and they are hereby perpetually enjoined *856and restrained from directly or indirectly doing or causing to be done any of the following acts with respect to tbe aforesaid drug while held for sale after shipment in interstate commerce:
“(a) The use in the sale of the drug of any of the written, printed or graphic matter referred to in paragaph 2, or of any other written, printed, or graphic matter containing any of the claims or representations specified in paragraph 2.
“(b) Representing, in any manner, that the drug is usful in the prevention, treatment, mitigation, or cure of any disease, condition, or symptom, that is not stated and/or enumerated in the labeling thereof together with precise diréctions for effective and safe use in each such disease, symptom, or condition; and it is further
“4. Ordered, adjudged and decreed that the defendant, Lela S. Wier, * * be and they are hereby perpetually enjoined and restrained from directly or indirectly introducing or causing to be introduced or delivering or causing to be delivered for introduction into interstate commerce the aforesaid drug with labeling that does not include a statement and enumeration of all diseases, conditions and symptoms, for which the article is intended to be used, together with precise directions for effective and safe use in each such disease, condition, or symptom; * * * ” [Emphasis added.]
. This recital portion of the decree contained this further statement: “The Court did not adjudicate that the drug was beneficial, but only that the Government had failed to prove that it was not beneficial in the above respects * * * ”
. To the same effect see City of Paducah, Ky. v. East Tennessee Telephone Co., 1913, 229 U.S. 476, 33 S.Ct. 816, 57 L.Ed. 1286; 6 Moore’s Federal Practice, 2d Ed. pp. 120 et seq.; King v. California Co. et al., 5 Cir., 1955, 224 F.2d 193, Id., 1956, 236 F.2d 413. And cf. New Amsterdam Casualty Co. v. B. L. Jones & Co., 5 Cir., 1958, 254 F.2d 917; Richards et al. v. Smith et al., 5 Cir., 1960, 276 F.2d 652.
. Mrs. George Bosarge:
“Q. Referring to your lower spine, were you suffering pain there? A. Terribly. * * *
“Q. Did you take those three medi*858cines home with you? A. I did.
“Q. Did you take them as prescribed? A. I did.
“Q. Did you get any results? A. I got pretty good results.
“Q. If you continued to take it tell what happened to your condition whether you got better or worse. A. It did wonders for me — felt better than I have in years.
“Q. Do you feel worse or better? A. Wonderful — It did not come back, not even in the spine.
“Q. It did not come back at all? A. No.
“Q. You are free from pain today? A. Yes.
“Q. Did you take any other medicines at that time? A. No.”
Mrs. Alice Guardia:
‘‘Q. Will you tell the Court what you were suffering from at that time? A. Pain in my right shoulder — could hardly move my arm. I went to Dr. Snelling for it.
“Q. What did he diagnose it as? A, Arthritis.
“Q. This medicine, did you take it according to directions? A. Near as possible I did.
“Q. Mrs. Guardia, what results, if any, did you get with reference to your pain * * * ? A. It left me.”
Mrs. F. M. Tatum:
“Q. * * * did you have occasion to consult Dr. Snelling on account of some ailment you had in your joints? A. Yes, I did.
“Q. At that time you were suffering in what part of your body? A. My knee was paining me some.
“Q. Did Dr. Snelling give you any medicine for this? A. Gave me this— (Reached for Tri Wonda treatment which is exhibit in evidence).
“Q. Did you take according to the prescription? A. Yes.
“Q. What results, if any, did you get from it? A. Helped me quite a bit— taken some time — maybe six weeks — don’t know how long — after a while the pain ceased — quit taking it.
“Q. You definitely got your pain relieved as a result of it? A. Yes, I did.”
Mr. C. E. Cuevas:
“Q. Mr. Cuevas, at the time you came to see Dr. Snelling will you tell the Court how you were suffering? A. All in my joints and my knuckles, knees and the back of my shoulder.
“Q. Did Mr. Snelling give you any medicine to try? A. That is right.
“Q. Did you take it the way the doctor told you take it? A. That is right.
“Q. Were you feeling any better when you returned to him? A. That’s right.
“Q. What was your condition, Mr. Cuevas, had it improved right along or not? A. That is right. I was working and feeling better.
“Q. Are you free of pain in your joints now? A. Yes, sir.”
Mrs. W. E. Lizana:
“Q. Who is your regular physician at this time? A. Dr. Snelling.
“Q. Where were you suffering? A. In my arms and hands.
“Q. Were they giving you much pain or not? A. Right smart, yes, sir.
“Q. What kind of medicine did Dr. Snelling ask you to try? A. This TriWonda.
“Q. Now, Mrs. Lizana, did you follow the doctor’s directions and take the medicine? A. Yes, I did.
“Q. Then tell the court whether it helped you or not? A. It certainly did help me, as far as I know. My fingers couldn’t bend, I couldn’t do much, and I think it did me a lot of good.
“Q. Did it get you to where you could bend your fingers or not? A. Yes.
“Q. Do you feel you did get very definite relief from the medicine? A. I certainly did.
“Q. Did it relieve you from your pain? A. Certainly did.”
Walter Y. Cross:
“Q. Will you tell the Court what caused the condition that you are in at the present time — what you have been suffering from? A. Diabetes and rheumatoid arthritis.
“Q. At the time you took Tri Wonda for the first time how were you suffering at that time with reference to pain in your joints or body? A. Yes, I had a lot of pain in my arms, neck and back and some in my legs.
“Q. At this date are you in comparative comfort comparative to conditions before taking Tri-Wonda? A. Oh, yes, definitely.”
Mrs. Cennie Bell Anderson:
“Q. * * * how were you suffering, Mrs. Anderson? What parts of your body were involved in this pain? A. It started in my left limb, foot, knee and in both thumbs.
*859“Q. Were the joints swollen or not? A. They were swollen.
“Q. Before you began taking the Tri Wonda, Mrs. Anderson, will you tell the Court whether or not the swelling and pain you had had affected your walking or not? A. Indeed it had. I hurt getting up in the morning and would have to hold on to things and just slide my feet along.
“Q. After you had been taking Tri Wonda for at least three weeks you began to walk better or not? A. I would walk better and kept on improving. I do all my work now.”
Mr. Edwin W. Whitehead:
“Q. At the time you consulted Dr. Atwood what was your condition? How were you suffering? What caused you to suffer? A. I was hurting. The Doctor said it was arthritis. It was in my hips, back, legs from the knees on down— bad.
“Q. Swollen or not? A. Some.
“Q. Referring to the pain, were you suffering much pain or not? A. Yes, sir.
“Q. * * * you had been taking the Tri Wonda treatment as the Doctor gave it to you and as prescribed on the bottle, taking it like it said on the bottle? A. Yes.
“Q. At that time how did you feel * * * A. I began to feel better.
“Q. During all that time you continued to take this medicine? A. Yes.
“Q. Tell the Court whether you continued to improve or not. A. Oh yes, yes sir.
“Q. With reference to the swelling, what occurred in the joints that were affected, did it go down or not? A. It went down.”
The foregoing testimony is typical of that given by the twenty-two lay witnesses testifying for the defendant.
. New York Life Insurance Co. v. Schlat-ter et al., 5 Cir., 1953, 203 F.2d 184; White et al. v. Holderby et al., 5 Cir., 1951, 192 F.2d 722; and Petroleum Carrier Corp. v. Snyder, 5 Cir., 1947, 161 F.2d 323.
. See also Floyd v. State, 1933, 166 Miss. 15, 148 So. 226, 231, where the Supreme Court reversed the judgment of a trial court in part because the court below refused to let a doctor give his professional opinion that a second blow could not have been self-inflicted by a person who had already been struck one blow. The Supreme Court stated: “It is true that Dr. Crisler may have had more experience as a surgeon, or higher training as a student, hut Dr. Sigrest had been trained as a general practitioner and had had 30 years’ experience. * * * [We think] that a physician who’ had made the study of the human body a profession, and who had considerable practice, could be called an expert.”
And in J. W. Sanders Cotton Mill v. Moody, 1940, 189 Miss. 284, 195 So. 683, 689, the court held that a chiropodist could testify as an expert in the interpretation of X-ray pictures and respecting injuries to the foot generally even though he had not had the training ordinarily required of a physician.
And in Wallace v. State, 1948, 203 Miss. 504, 35 So.2d 703, 704, the Supreme Court of Mississippi quoted 20 Am.Jur. page 692 in its statement that: “Any person who has, by sufficient experience, acquired adequate knowledge of X-rays and their interpretation may qualify as a witness.” The court repeated also that “It is sufficient if he possesses peculiar knowledge, wisdom, or information regarding the subject matter, acquired by study, investigation, observation, experience or practice, not possessed by the ordinary layman or inexperienced person.”
. The Supreme Court of Mississippi in Pearl River Valley R. Co. v. Moody, 1937, 178 Miss. 1, 171 So. 769, sanctioned the receipt of testimony given by a lay witness, in an action to recover for injuries sustained, as to his continuous pain and suffering. Also, in Illinois Cent. R. Co. et al. v. Williams, 1926, 144 Miss. 804, 110 So. 510, 511, it was held by the Mississippi Supreme Court that an instruction to the jury was correct which permitted the consideration of testimony given concerning the physical pain and suffering endured by a party, holding that such testimony was competent.
This law as stated by the courts of Mississippi also appears to be in accord with the general law, as it is given in 32 C.J.S. Evidence § 518, p. 191: “While a non expert or lay witness may not give expert testimony as to his physical condition, he may state simple inferences drawn from his conscious subjective sensations concerning such condition;” and in 20 Am.Jur., Evidence, § 859, p. 720; “One, not an expert, may testify as to the state of his own health.”
. The following quotation, made up of several disconnected statements in the long opinion, demonstrates that this Court construed the representations there condemned as assuring those reading it that the drugs would cure internal cancer:
[Page 276] “For the purpose of this decision and in determining the truth of such representations, we will accept the more restricted position, to which the Government is driven, that the precise extent of successful cures is immaterial since, it is contended, that the representation that any cure can be effected by use of the medicine is false and misleading. * * * It is difficult to imagine that one thinking himself inflicted with the dire disease of cancer and reading and considering the references to these listed patients, and the testimony there set forth, * * * would reach any other conclusion than that the persons listed were cured of cancer by the Hoxsey drugs.
[Page 280] “ * * * Our eonsidertion of the record and the nature of the issues involved has led to the firm conclusion that the trial Court’s findings of fact that the representations in the labeling were neither false nor misleading, and that the brownish-black and pink colored medicines were efficacious in the cure of cancer in man are clearly erroneous. * *
[Page 281] “Furthermore, as we have held, the overwhelming weight of the credible evidence requires a conclusion that the representation that the Hoxsey liquid medicines are efficacious in the cui-e of cancer is likewise false and misleading.”
. Such as Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; and Hecht Co. v. Bowles, 1944, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754.