Opinion
No. 3785.
May 6, 1930. Rehearing Denied May 15, 1930.
Appeal from District Court, Marion County; R. T. Wilkinson, Judge.
Suit by the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve and others against the Independent Order Knights and Daughters of Tabor of America and others. Judgment for defendants, and plaintiffs appeal.
Affirmed.
The appellant order, acting by its chief officers, brought the suit against the appellees Independent Order, Knights and Daughters of Tabor of America, and S. S. Reid, C. H. M. Furlow, Annie Jackson, and Norma Brooks as individuals. The controversy is shown by the prayer of the petition, which reads as follows:
"Wherefore, the premises considered, plaintiffs pray that said defendants, and each of them, be cited according to law to appear and answer this petition, that the court make a temporary order enjoining and restraining the defendants and each of them, and any and all persons acting in subordination or in conjunction with said defendants, from using the said name 'Independent Knights and Daughters of Tabor of America,' the names or similar names of the subordinate temples and tabernacles, emblems, insignia, paraphernalia, badges, titles of grand and subordinate officers, by-laws and constitution in colorable imitation, similar or like those of plaintiff order; and upon final hearing hereof that said restraining order be made permanent, and for judgment against said defendant order and S. S. Reid for its said damages in the sum of $10,000.00 actual damages, and for costs of suit and general relief."
After hearing the evidence the court submitted to the jury the following findings of fact to be made, namely:
"Q. 1. Do you find from a preponderance of the evidence that the name adopted and used by the defendant was so similar to the name adopted and used by the plaintiff as that the use of the name adopted by the defendant under all the facts and circumstances in evidence would naturally and probably mislead and confuse the public to believe that the defendant order is the plaintiff order?
"Q. 2. Do you find from a preponderance of the evidence that such fact, if any, has resulted in injury to plaintiff or is calculated to result in injury to plaintiff?"
To each of these questions the jury answered, "No." The court entered judgment denying the plaintiff (1) an injunction and (2) any recovery of damages against the defendants or any one of them. From that judgment the plaintiff order has appealed.
"The Knights and Daughters of Tabor of the International Order of Twelve" is the name of a fraternal benefit order organized and carried on for the mutual benefit of its members, including charity and life insurance. It has a lodge system with ritualistic form of work. The lodge system is that of a supreme lodge or legislative body, a grand lodge in each state, and subordinate lodges installed in towns and villages. The laws and regulations of the order admit both men and women into membership, but in separate departments. The men's department is called "temple," and the women's department is called "tabernacle." The grand lodge of each state is called the "Grand Temple and Tabernacle." The supreme lodge has officers with various titles. The chief officer of the supreme lodge is called "The International Chief Grand Mentor." The state organizations have their state officers with various titles. Each temple and tabernacle, respectively, has its various officers with various titles. The organization has been in existence and has operated as an international organization for more than forty years. The order has had local temples and tabernacles in Texas from 1888 and up to the time of the trial. The Grand Lodge of Texas was duly incorporated under the laws of Texas on June 20, 1895, under the name and style of "The Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve." It was shown that the order has many subordinate lodges in the state of Texas, with many members carrying insurance protection. The funds necessary for conducting and maintaining the work of the order are raised by dues assessed and collected from its members.
It appears that some of the state officers and members of the appellant order, numbering about sixty people, withdrew from the order, and shortly afterwards they organized and on November 8, 1924, had incorporated under the laws of Texas a fraternal benefit order under the name and style of "Independent Order of Knights and Daughters of Tabor of America." This order is the appellee in this case. The order was organized for the mutual benefit of its members, including charity and life insurance. It has a lodge system with ritualistic work. Since the time of its organization, the order, as shown, has done "business exclusively in Texas." There is a grand lodge and also many local or subordinate lodges in Texas. The laws and regulations of the order admit both men and women to membership, but in separate departments. The names of the departments and of the various officers are the same as those in the appellant order, with the exception that the word "Independent" is placed in front of the name of each department and officer.
It appears that the appellee order had operated in Texas nearly two years at the date the present suit was filed in 1927. During that period of time, as shown, this order issued its policies in the heading and form reading, as material to state, namely:
"Number 1180 Age ______
"Independent Order "KNIGHTS AND DAUGHTERS OF TABOR "Of America "Membership Certificate "Class A"This certificate, issued by the Grand Temple and Tabernacle in the State of Texas of the Independent Order Knights and Daughters of Tabor of America, a benevolent and charitable organization chartered under the laws of the State of Texas, Witnesseth:" etc.
The front page or cover of the constitution and by-laws used and distributed generally reads as follows:
"CONSTITUTION AND BY-LAWS "Independent Order "KNIGHTS AND DAUGHTERS OF TABOR "Of America "1926."An orange-colored placard 22x13 inches, printed in black type, generally mailed out for the purpose of advertising the meeting of the grand lodge or session, reads:
"Second Grand Session "Independent Order "KNIGHTS AND DAUGHTERS OF TABOR "Of America "At Cameron, Texas. "July 27, 28, 29, 30, 1926, "At Bethel, A. M. E. Church."(Here follows full program.)
There was offered in evidence a report blank used by the officers of the appellee for making quarterly reports, reading:
"666 777
(Lithographic picture of hands clasped) "INDEPENDENT ORDER KNIGHTS AND DAUGHTERS OF TABOR OF AMERICA "Assessment sheet, Endowment and other Taxes"Temple or Tabernacle No. _____
"From ______
"at _______, Texas.
"_______, 192_."
The appellant order, as shown, issued its policies under the heading and form reading:
"INTERNATIONAL ORDER OF TWELVE "In solo Deo Salus"777 333
(Lithographic picture of the human eye) "KNIGHTS AND DAUGHTERS OF TABOR "Certificate No. ______"This certificate, issued by the Grand Temple and Tabernacle in the State of Texas of the Knights and Daughters of Tabor of the International Order of Twelve, a fraternal beneficiary association, incorporated under the laws of the State of Texas, Witnesseth," etc.
The bank checks used read:
"777 : 333
"_______, Texas, 192_
"In Solo Deo Salus "INTERNATIONAL ORDER OF TWELVE "Knights and Daughters of Tabor "Texas Jurisdiction"Pay to the Order of ______ $_______
"______ Dollars
"To ______ Bank
"______, Texas.
"____________
"Chief Grand Scribe."
The letterhead had printed thereon:
"Jurisdiction of Texas
(Lithographic picture of hands clasped)
"333 (Lithographic picture of the human eye)
"In Solo Deo SalusOrganized _______ 192_
"Office of
"INTERNATIONAL ORDER OF TWELVE "Knights and Daughters of Tabor."The letterhead used by the International Chief Grand Mentor reads:
"Incorporated 1884. Tituals, Charters, Warrants and Name Copyrighted 1884. "INTERNATIONAL ORDER OF TWELVE "In Solo Deo Salus"333 777
(Lithographic picture of the human eye) "Grand Temple and Tabernacle, Arkansas Jurisdiction."The letterhead used by the International Chief Grand Mentor reads:
"In Solo Deo Salus"777 333
(Lithographic picture of the human eye) "INTERNATIONAL ORDER OF TWELVE "Knights and Daughters of Tabor "Office of"Little Rock, Ark."
The front cover of the general laws of the order reads:
"GENERAL LAWS OF THE INTERNATIONAL ORDER OF TWELVE."The form of receipt used in 1916 reads:
"777 (Lithographic 333 picture of the human eye over elapsed hands)
"In Solo Deo Salus "INTERNATIONAL ORDER OF TWELVE "Texas Jurisdiction."$______ ______, 1916.
"Received from ______ $______."
The evidence shows that the appellant order is most frequently called and publicly referred to by the name only of "Knights and Daughters of Tabor," but sometimes by the name only of "International Order of Twelve." The appellant proved specific instances in which letters were addressed to one order for the other in reference to claims and suits by beneficiaries and their attorneys.
Lane Lane and J. H. T. Bibb, all of Marshall, for appellants.
Davidson, Blalock Blalock, of Marshall, for appellees.
This court has reached the conclusion that, considering all the facts of the case, the appellee order may not be enjoined from having and using the name chosen and fixed in the act of incorporation as the name such incorporation was to bear, since, as a matter of pure law, there is dissimilarity in the names of the two organizations. Free and Accepted Masons v. Ancient Free and Accepted Masons, Colored (Tex.Civ.App.) 179 S.W. 265; Supreme Lodge of the Order of Knights of Pythias v. Improved Order Knights of Pythias, 113 Mich. 133, 71 N.W. 470, 38 L.R.A. 658. In this view all the other assignments of error are overruled.
There is distinguishment between the present appeal and the two following cases: Benevolent Protective Order of Elks v. Improved Benevolent Protective Order of Elks, 205 N.Y. 459, 98 N.E. 756, L.R.A. 1915B, 1074, Ann.Cas. 1913E, 639; International Committee of Young Women's Christian Ass'n v. Young Women's Christian Ass'n of Chicago, 194 Ill. 194, 62 N.E. 551, 56 L.R.A. 888.
As there was no evidence of any amount of damages or value of losses of dues, the finding of no damages, as against S. S. Reid, by the jury cannot be set aside.
The judgment is affirmed.