Action by the Free and Accepted Masons of the State of Texas against the Ancient Free and Accepted Masons, Colored, and others. From a judgment for defendants, plaintiff appeals. Affirmed. headlight was presented in substantially the same terms, except that it required, as a condition for any recovery by the plaintiff upon the issue, not only that the light was of such brilliance as to render it dangerous to switchmen in the discharge of their duties, but that it blinded the plaintiff so as to pre Ft. Worth, for appellant. Thompson, Knight, Mike E. Smith and O. W. Gillespie, both of vent his seeing the standing car, or interfer-Baker & Harris and George S. Wright, all ed with him in the discharge of his duties, and that permitting the light to be as it was amounted to negligence. The special instruction, in fact, imposed a less burden upon the plaintiff, in that, as already noted, it authorized a recovery in his favor on the issue, provided only that the jury found the headlight rendered dangerous the performance of nis work. of Dallas, for appellees. TALBOT, J. The appellant, Free and Accepted Masons of the State of Texas, sued the appellees, Ancient Free and Accepted Masons, Colored, and others, to restrain the latter from using a name so similar to that of appellant, and especially from the use as a part of the appellees' name of the words "Free and Accepted Masons." Upon the presentation of appellant's petition a temporary injunction was granted, but upon final hearing judgment was rendered that appellant take nothing by reason of its suit and that the injunction be dissolved. From this decree of the court appellant appealed. The special instruction was more than a mere reference to this issue. It announced the right of the plaintiff to recover on the issue, and, as stated, it furthermore permitted such recovery on a finding of less than the general charge exacted. Having in this instruction distinctly affirmed the proposition erroneously embodied in the general charge, All of the parties to the suit are negroes. under the ruling of Railway Co. v. Eyer, the plaintiff should not be heard to complain of Since 1875 the appellant, as a Masonic orthe charge, unless there is sufficient indica-ganization under the name of "Free and Action in the record that the instruction was requested after the charge was given. Upon the trial no contention appears to have been made by the plaintiff in error that this was not properly an issue to be submitted to the jury. The record suggests nothing that would amount in any form to an objection to its submission. It in no wise indicates that the instruction was not requested until after the charge was given. With the record in this state, the presumption obtains that it was requested before that time. Railway Co. v. Sein. The judgments of the district court and Court of Civil Appeals are affirmed. FREE AND ACCEPTED MASONS OF THE (Court of Civil Appeals of Texas. Dallas. A colored order, known as the "Free and Accepted Masons," is not entitled to enjoin a rival order, subsequently started, which took the name of "Ancient Free and Accepted Masons, Colored," it appearing that there was no confusion of mail, or applications of membership, and that the last order distinctly held itself out as being different from the first, for, as the orders were charitable and humanitarian and were not engaged in business, there was no question of infringing a trade-name. [Ed. Note.-For other cases, see Beneficial Associations, Dec. Dig. 4.] cepted Masons of the State of Texas," has Appeal from District Court, Dallas County; pay certain dues appropriated to charitable E. B. Muse, Judge. purposes and to care for the sick and wid ows and orphans of deceased members. In other words, the objects of both associations are "charitable and humanitarian.” No question of property is involved, and the evidence, as we view it, shows no pecuniary injury to appellant by the use of the name adopted by appellee, under which it maintains its organization, unless the teachings of the appellee's order, to the effect that it is entirely different from the appellant order and the only regularly constituted Masonic order, which has led some of the latter's members to withdraw and join appellee order, constitute such property or pecuniary damage. In 1908 some of the former members of the plaintiff order, in conjunction with various other colored men, organized five lodges of the "Ancient Free and Accepted Masons," and later, prior to March 16, 1909, these five lodges organized the Sunset Grand Lodge of Masons, and on March 16, 1909, the state of Texas granted to the Sunset Grand Lodge of Masons a charter, which showed that the Sunset Grand Lodge Free and Accepted Masons, Colored, of Texas, had incorporated, and that said charter gave to said Grand Lodge the rights to practice ancient free and accepted Masonry in the state of Texas. Since that time the Sunset Grand Lodge, Ancient Free and Accepted Masons, has been establishing subordinate lodges, practicing free and accepted Masonry, and engaged solely in a benevolent undertaking—the upbuilding of the negro race and the paying of benefits to the widows and orphans of deceased members of said order. The evidence further shows, or tends to show, that no person has ever made application to the defendant order, thinking or believing that he was making application to the plaintiff order; that no mail intended for defendant order has ever been received by plaintiff order; that there has never been any confusion in the minds of the public or in the minds of any person with reference to the identity of these two orders. On the contrary, the undisputed evidence shows that each of these orders has been contending that it was the only colored Masonic order, and that the other was spurious and clandestine. Appellant presents but one assignment of error, which is as follows: "The testimony is conclusive that the plaintiff, long prior to the organization of defendant or ganization, having theretofore long used the name, was duly and legally incorporated by virtue of the laws of the state of Texas under its said name, 'Free and Accepted Masons of the State of Texas,' and that long subsequent to plaintiff's incorporation, the defendant, without any valid authority pretended to organize a Masonic order and Supreme Lodge in the state of Texas, contrary to Masonic law, under the same, or substantially similar name, to wit, under the name 'Ancient Free and Accepted Masons (Colored),' and by virtue thereof began operations in Texas. asserting and pretending that the last-named body was the only true and regularly constituted body of colored Masons in this state, using the same password, emblems, badges, and other insignia common to Masonry, and which had been adopted and used long prior by the plaintiff. The court therefore erred in not holding that the defendants were infringing upon plaintiff's corporate name, and in not perpetuating the tempodefendants from operating and continuing the rary injunction and permanently enjoining the use of any part of plaintiff's corporate name." the assignment is: The proposition asserted and urged under used a name for such a length of time as to be"Where a corporation has appropriated and come identified by the name, and has established a character and reputation under it, it is a fraud on the corporation if this name, or one similar thereto, is assumed by others under circumstances likely to lead the public to believe that the latter is the former body; and where injury will, or is calculated to, result to the former corwill, at the suit of the injured parties, restrain poration on account thereof, a court of equity the further perpetration of the wrong." In the It is said that as applied to trading concerns the decisive principle is that no man has a right to sell or advertise his own business or goods as those of another. Williams v. Farrand, 88 Mich. 478, 50 N. W. 446, 14 L. R. A. 161. Therefore one must not adopt a name so similar to that of another as to draw to himself business intended for that other. Chas. S. Higgins Co. v. Higgins Soap Co., 144 N. Y. 462, 39 N. E. 490, 27 L. R. A. 42, 43 Am. St. Rep. 769; Supreme Lodge K. of P. v. Improved Order K. of P., 113 Mich, 133, 71 N. W. 470, 38 L. R. A. 658. last case cited it is said that this principle is correctly stated in the following language quoted in the opinion of the court: used a name for such length of time as to be"Where a corporation has appropriated and come identified by the name, and had established a character and reputation under it, it is a fraud upon the corporation and the public if this name be assumed by others under such circumthey constitute the original corporation; and stances as would lead the public to believe that where injury will result to the corporation on account thereof, courts of equity will, at the suit of the injured parties, by injunction restrain the further perpetration of the wrong. It is the special injury to the party aggrieved and the imposition upon the public that constitute the wrong which the courts will redress. It is not necessary that the wrong should be intenshould be used under such circumstances as tionally committed. It is enough that the name would lead the public to believe that the latter organization was the former, and thereby cause injury to the former corporation." But "where the name was not chosen for the purpose of deception, and has not been used under circumstances intended or calculated to deceive, the similarity of names must be such as to deceive ordinary persons proceeding with ordinary care to justify the inference." Supreme Lodge K. of P. v. Improved Order K. of P., supra. Mr. High, in his excellent work on Injunctions, after stating the general doctrine governing the jurisdiction of equity in restraint of the infringement of trade-marks, says: "Courts of equity, in granting relief by injunction in this class of cases, proceed upon the principle that it is a fraud upon one who has established a trade and carried it on under a given name to permit another to assume that name, or the same name with a slight alteration, in such manner as to induce persons to deal with him in the belief that they are dealing with one who has given a reputation to that name,” and that, "since false representation is the principal ground for relief in equity by injunction against the piracy of a trade-mark, when no false representation or deceit is used, defendant only endeavoring, by his advertisement and by selling the article complained of, to show to the public that the article is that of his own manufacture, equity will not interfere, in the absence of any evidence of persons having been misled or deceived in the matter, even though defendant may also use, as designating his article, the name of the original manufacturer of the article sold by plaintiff," and that "when, upon the case presented, there is no evidence of fraud or deceitful representation, the court will decline to interfere." Sections 1085 and 1086. was materially different from the appellant order and the only colored Masonic order in the state or elsewhere. So upon the authority of Supreme Lodge K. of P. v. Improved Order K. of P., supra, it might be held in the instant case that the appellee is using the name "Ancient Free and Accepted Masons" under circumstances which do not lead the public to believe that it is the same or a branch order of the appellant, and hence could lawfully take the name adopted by it. The cases cited by appellant very clearly show that, where a firm or corporation has built up a business under a firm or corporate name which has given that name a pecuniary value, another firm or corporation cannot adopt another name so similar as to mislead the public, and lead individuals to the belief that the firm or corporation using the new name is the same firm or corporation that was using that old name. This principle of law is well established, but it is not, in our opinion, applicable in the case at bar. The rule applicable to the facts of the present case is announced in the case of Grand Lodge v. Grimshaw, 34 App. D. C. 383. In that case the court, speaking through Mr. Chief Justice Shepard, says: * * * Thus it appears, according to the rule announced by Mr. High, that even in suits involving the infringement of a trade-mark injunctive relief cannot successfully be invoked unless the evidence discloses that persons have been misled or deceived to their injury by false representations used by the party charged with the infringement. The only difference in the names of the organizations involved in the case of Supreme Lodge K. of P. v. Improved Order K. of P., cited above, consists in the words, "Improved Order," which is found in the title of the appellee therein. There was no evidence that the appellee chose the name "Improved Order Knights of Pythias," "The principle upon which courts of equity with the intention that their order should be proceed in restraining the simulation of names is not that there is property acquired by one supposed to be the order Knights of Pythias, party in the name, but to prevent fraud and denor that they had done anything since the ception in the dealing with the party charged order was founded to lead the public to be- with the simulation of a name used by another in lieve that the orders were the same, and the a similar business or manufacture. Courts of equity do not exercise jurisdiction to court, after stating that the question was, inquire into and adjudicate the right of differ"Is the name 'Improved Order Knights of ent associations for charitable or religious obPythias' so nearly like the name 'Knights of jects who hold themselves out to be the regular Pythias' that ordinary persons, using ordi- ticular order or religious system. There must and only accredited representatives of some parnary care, would think them identical, would be some pecuniary injury resulting from the use think them two names for the same order, of a name that may have been adopted by anor for branches of the same order, so that other, to warrant inquiry and justify relief. The they would become members of the defend-real. It must be substantial, and such as a court injury must not be fanciful or sentimental, but ant's society when they really wanted to join complainant's society?" answered the same in the negative, and held that the name "Improved Order Knights of Pythias" could be lawfully taken as the name of the new order formed by members who had withdrawn from the old order of Knights of Pythias. There is as much dissimilarity in the names of the two organizations involved in the suit now before this court as in the names of the organizations before the court in the case cited, and just as much reason for holding that the appellant here is not entitled to the injunctive relief sought. There is no evidence warranting the conclusion that appellee order selected the name "Ancient Free and Accepted Masons, Colored," with the intention that its order should be understood and supposed to be the appellant order. On the contrary, the evidence tends strongly to show, if it does not conclusively do so, that since the organization of the appellee order it has uniformly sought to convince the public and those contemplat of equity, upon principles of justice, will interpose to prevent"-citing Original La Tosca Social Club v. La Tosca Social Club, 23 App. D. C. 96-104. The case of International Committee of Young Women's Christian Association Young Women's Christian Association of Chicago, 194 Ill. 194, 62 N. E. 551, 56 L. R. A. 888, is more in point and comes nearer sustaining the contention of appellant in this case, in our opinion, than any other authority cited by its able counsel; but, as pointed out by counsel for appellee: "The Supreme Court in that case gave relief similar as to deceive and mislead the public insolely upon the ground that the names were so to believing, that the defendant was the plaintiff or a committee of plaintiff, and the court in its opinion said, in substance, that it clearly apant adopted the name advisedly, and for the purpeared from the entire record that the defendpose of leading the general public to believe that it stood as a committee and representative of plaintiff association." Our conclusion is that the facts did not warrant the interference of a court of equi district court should be affirmed. It is there- the construction. The case was tried before fore accordingly so ordered. Affirmed. HOUSTON BELT & TERMINAL RY. CO. v. VOGEL et ux. (No. 6959.) (Court of Civil Appeals of Texas. Galveston. June 21, 1915. Rehearing Denied Oct. 14, 1915.) 1. TRIAL 139, 140-PROVINCE OF JURYWEIGHT OF TESTIMONY. The credibility of witnesses and the weight of testimony is a question peculiarly for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 332-335, 338-341, 365; Dec. Dig. 139, 140.] 2. EVIDENCE 568- OPINION EVIDENCE EXPERT TESTIMONY. A jury are not concluded by opinion evidence, but may apply their own experience and knowledge in solving the question. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2392-2394; Dec. Dig. 568.1 3. EMINENT DOMAIN 307- CONSTRUCTION OF RAILROAD-DAMAGES. Whether plaintiff's property was depreciated by reason of the construction of a railroad held, under the evidence, for the jury. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 820-824; Dec. Dig. 307.] 4. EVIDENCE 474-OPINION EVIDENCE. Where plaintiff testified to his familiarity with conditions and knowledge of the market value of his property, which he claimed had depreciated by reason of the construction of a railroad, he was competent to testify as to the depreciation, and, notwithstanding that that on cross-examination he became confused as to the distinction between actual and market value, his testimony could not be stricken; that fact going only to the weight of his testimony. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2196-2219; Dec. Dig. 474.] Appeal from District Court, Harris County; Norman G. Kittrell, Special Judge. Action by John Vogel and wife, against the Houston Belt & Terminal Railway Company. From a judgment for plaintiffs, defendant appeals. Affirmed. See, also, 156 S. W. 261. Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. John Lovejoy and Presley K. Ewing, both of Houston, for appellees. a jury upon special issues, and damages to plaintiffs' property from railroad construction and operations in proximity thereto were found by special verdict, as follows: "(1) What was the fair market value of plaintiffs' property, inclusive of improvements thereon, immediately before the construction and operation of the defendant's railroad in the vicinity of it? Answer: $10,000. "(2) What was the fair market value of plaintiffs' property, inclusive of the improvements thereon, immediately after such construction and operation of defendant's railroad? Answer: $5,250. "(3) If the market value of said property was less immediately after than immediately before the construction and operation of defendant's railroad, was the depreciation or decrease of value caused by such construction and operation of defendant's railroad? Answer: Yes." On this verdict a judgment was rendered in plaintiffs' favor for $4,750, from which the defendant has appealed. Appellant's first, second, third, fourth, and fifth assignments of error in different forms contend that the verdict was excessive, under the claim that the value found before the railroad operations, to wit, $10,000, was too large, and the value found after, to wit, $5,250, was too small. The claim is made, particularly in the first assignment, that the value fixed before the railroad operation was so grossly excessive as to indicate that the jury was actuated by sympathy, bias, prejudice, or some other improper motive. [1-3] We shall not undertake to set out the testimony bearing upon the issues presented by the assignments, but find that the evidence adduced upon the trial fairly warranted the verdict in that regard. Seven witnesses, including the plaintiff John Vogel, testified as to the market value of the plaintiffs' property before and after the construction of defendant's railroad and the operations thereover, and no two of them agreed. Vogel's estimate was that the property, including the improvements thereon, was worth before the construction and operation $12,500, and after $6,000; his witness W. E. Carter placed the value before at $11,500, and after at $6,000; while the five following named witnesses placed the value as follows: W. H. Taylor, $5,187.50 before, and $8,750 after; J. W. N. Burkett, $5,400 before, and $6,250 after; J. H. McCracken, $6,000 before, and an increase in value of 30 to 50 per cent. after; L. W. Murdock, $5,500 before, and $11,000 after; and L. Dunn, $6,250 before, and the same amount after. As before shown, the jury found the value to be $10,000 before, and $5,250 after. There was testimony admitted which would warrant a finding that there was no demand for prop McMEANS, J. John Vogel and wife sued the Houston Belt & Terminal Railway Company, alleging damages by way of depreciation in the market value of certain real estate in the city of Houston owned by them, the depreciation complained of being charged to the fact that the Houston Belt & Terminal Railway Company had built certain tracks in front of said property and had car-erty situated as was plaintiffs' for other purried on railway operations over said tracks from and after the early part of the year 1910. Defendant answered by general denial, and pleaded that the property, instead of depreciating, had enhanced in value by reason of poses than residences; and the witness last named testified that plaintiffs' property for residence purposes had decreased 75 per cent. by reason of the construction and operation of defendant's railroad. The wit nesses testified at length as to their knowl- the grounds that the cross-examination of edge of property values and as to their plaintiff developed that he was not qualified methods of arriving at the market value of to give an opinion as to the market value of plaintiffs' property both before and after the his property, since it showed that he had construction and operation of defendant's never been in the real estate business; that railroad; and it was a matter peculiarly the estimate which he gave was not based within the province of the jury to weigh on any actual sales with which he was the testimony, judge the credibility of the familiar; that he had had no experience in witnesses, and to reach a conclusion sup- fixing the values of property or estimating ported by testimony to which they gave cre- such values; and that his estimate was simdence, or a conclusion reached by blending ply an unsupported opinion. all the evidence admitted before them, aided On a former appeal of this case a judgby their own experience and knowledge of ment in favor of plaintiffs was reversed, for the subject of inquiry. We cannot say, the reason that the plaintiff John Vogel, altherefore, that the jury, in arriving at the though he testified that he was not acquaintconclusion they reached, did so without re-ed with the market value of property in gard to the testimony, or that their verdict question, nor of the market value of property was against the preponderance of the evi- in that neighborhood, was permitted, over dence to that degree which shows that mani- the objection of the defendant, to testify fest injustice has been done, or to indicate that they were actuated by sympathy, bias, prejudice, or some other improper motive. They were not concluded by the opinion of experts, but in weighing the testimony they had a right to apply their own experience and knowledge, and to deduce therefrom the truth as they believed it. Thus in Lawson's Expert and Opinion Ev. (2d Ed.) p. 496, under rule 61, it is said: what its market value was. Houston Belt & Terminal Ry. Co. v. Vogel, 156 S. W. 261. On the last trial he testified on direct examination to the effect that he was specially familiar with the property in question, and the other property in the neighborhood of it, and of the location and character thereof, and had been for about 30 years, and had owned and lived on the property in question as the home of his family for 28 years, and had special knowledge of the uses to which the property in question and the other neighborhood property had been put during that period, which was for residence purposes exclusively, and of the uses to which the property was adapted before and since the railroad operations, and that from his knowledge and familiarity with the property in question and its improvements, which he had built, and with property in the neighborhood, its location and character, and the uses to which same had been put, and to which such was adapted, he had knowledge and an opinion of the market value of the property immediately before and immediately after In Patterson v. Boston, 20 Pick. (Mass.) the railroad operations in question on August 166, it is said: "Juries would be very little fit for the high and responsible office to which they are called, especially to make an appraisement, which depends on knowledge and experience, if they might not avail themselves of those powers of their minds when they are most necessary to the performance of their duties." The jury were not compelled to credit all the testimony of any witness or reject it all (Railway v. Taylor, 20 Tex. Civ. App. 654, 49 S. W. 1055), but could have accepted as true a portion of the testimony of any or either of them, rejecting the remainder, in order to base their verdict upon what they believed to be the real facts. Garcia v. Sanders, 90 Tex. 109, 37 S. W. 314. The assignments do not point out reversible error, and are overruled. [4] The sixth assignment complains that the court erred in overruling defendant's motion to exclude all of the testimony of the plaintiff John Vogel as to the value of his 10, 1910, and that the market value of the same immediately before such operations was $12,700, and immediately after not more than half that amount, say, $6,000. Among other things, he testified on the direct examination: "From my knowledge and the nature and character of this property, and the uses for which it is fit, and its location, I am able, from give an opinion of the market value of this my knowledge of these things, to estimate and property just before the railroad began its operations there. In my opinion, its market value, without the road there, at that time, was $6,000 a lot, with the improvements (there were 21% lots). In my opinion, immediately after the road was constructed and began operations there, it was not worth hardly half of what it was worth before; I don't think it was. Nobody would have it; you couldn't sell it to anybody—that is, for home purposes. That is my opinion, from my acquaintance with the property and knowledge of it." On cross examination he testified: "I say that my property, in my opinion, just |