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FREE AND ACCEPTED MASONS v. ANCIENT F. & A. M., COLORED

265

headlight was presented in substantially the Action by the Free and Accepted Masons same terms, except that it required, as a of the State of Texas against the Ancient condition for any recovery by the plaintiff Free and Accepted Masons, Colored, and othupon the issue, not only that the light was ers. From a judgment for defendants, plainof such brilliance as to render it dangerous tiff appeals. Affirmed. 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 0. 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

of Dallas, for appellees. amounted to negligence. The special instruction, in fact, imposed a less burden upon the

TALBOT, J. The appellant, Free and Acplaintiff, in that, as already noted, it au- cepted Masons of the State of Texas, sued thorized a recovery in his favor on the issue, the appellees, Ancient Free and Accepted provided only that the jury found the head Masons, Colored, and others, to restrain the light rendered dangerous the performance of latter from using a name so similar to that nis work.

of appellant, and especially from the use as The special instruction was more than a a part of the appellees' name of the words mere reference to this issue. It announced

“Free and Accepted Masons." Upon the the right of the plaintiff to recover on the presentation of appellant's petition a temissue, and, as stated, it furthermore permitted porary injunction was granted, but upon final such recovery on a finding of less than the hearing judgment was rendered that appelgeneral charge exacted. Having in this in- lant take nothing by reason of its suit and struction distinctly affirmed the proposition that the injunction be dissolved. From this erroneously embodied in the general charge, decree of the court appellant appealed. under the ruling of Railway Co. v. Eyer, the

All of the parties to the suit are negroes. 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 cepted Masons of the State of Texas,” has requested after the charge was given. Upon conducted its affairs and acquired its memthe trial no contention appears to have been bership and property. In 1885 appellant was made by the plaintiff in error that this was duly incorporated by virtue of the laws of not properly an issue to be submitted to the Texas under its said name. In 1908 or 1909 jury. The record suggests nothing that would the appellees organized a Masonic order unamount in any form to an objection to its der the name “Ancient Free and Accepted submission. It in no wise indicates that the Masons, Colored," and have since maintained instruction was not requested until after the their organization in Texas, using practicalcharge was given. With the record in this ly the same password, emblems, badges, etc., state, the presumption obtains that it was as those used by appellant and other Masonic requested before that time. Railway Co. v.

organizations. The charter of appellee is Sein.

dated February 6, 1909, and many of its The judgments of the district court and members were formerly members of the apCourt of Civil Appeals are affirmed.

pellant, and acquired a knowledge of the secret work and principles of Masonry while members thereof. Some of them were proba

bly expelled from appellant's lodge, and some FREE AND ACCEPTED MASONS OF THE voluntarily abandoned appellant's organiza

STATE OF TEXAS V. ANCIENT FREE tion and became members of the appellee's AND ACCEPTED MASONS, COLORED, et organization. The appellant has a memberal. (No. 7380.)

ship of about 7,000 men and 4,000 women. (Court of Civil Appeals of Texas. Dallas.

It owns property of the estimated value of
July 3, 1915. Rehearing Denied
Oct. 16, 1915.)

$300,000. This property is not used for profit. BENEFICIAL ASSOCIATIONS 4 - INFRINGE

It is used for lodge purposes and as homes MENT IN NAMES,

for orphan children of deceased members of A colored order, known as the "Free and the order and for indigent Masons of the orAccepted Masons," is not entitled to enjoin a der. The funds necessary for conducting rival order, subsequently started, which took the and maintaining the work of the order seem name of "Ancient Free and Accepted Masons, Colored,” it appearing that there was no confu- 1 to be raised by dues assessed and collected sion of mail, or applications of membership, and from its members. The appellee has a memthat the last order distinctly held itself out as bership of about 740 men and about 320 being different from the first, for, as the orders

It has no capital stock, but some were charitable and humanitarian and were not engaged in business, there was no question of in- property used for the purpose of conducting fringing a trade-name.

the work of the order, and the organization [Ed. Note.-For other cases, see Beneficial As- is not for the purpose of making money. sociations, Dec, Dig. 4.]

Like appellant, its members are required to 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

women.

ows and orphans of deceased members. In The court therefore erred in not holding that the other words, the objects of both associations defendants were infringing upon plaintiff's corpoare “charitable and humanitarian."

rate name, and in not perpetuating the tempoNo question of property is involved, and defendants from operating and continuing the

rary injunction and permanently enjoining the the evidence, as we view it, shows no pecunia- use of any part of plaintiff's corporate name.' ry injury to appellant by the use of the name

The proposition asserted and urged under adopted by appellee, under which it main

the assignment is: tains its organization, unless the teachings of the appellee's order, to the effect that it is used a name for such a length of time as to be

“Where a corporation has appropriated and entirely different from the appellant order come identified by the name, and has established a and the only regularly constituted Masonic character and reputation under it, it is a fraud order, which has led some of the latter's on the corporation if this name, or one similar members to withdraw and join appellee or- es likely to lead the public to believe that the

thereto, is assumed by others under circumstancder, constitute such property or pecuniary latter is the former body; and where injury damage. In 1908 some of the former mem- will, or is calculated to, result to the former corbers of the plaintiff order, in conjunction will, at the suit of the injured parties, restrain

a of with various other colored men, organized the further perpetration of the wrong. five lodges of the “Ancient Free and Accepted

It is said that as applied to trading conMasons," and later, prior to March 16, 1909, these five lodges organized the Sunset Grand cerns the decisive principle is that no man Lodge of Masons, and on March 16, 1909, has a right to sell or advertise his own busithe state of Texas granted to the Sunset ness or goods as those of another. Williams Grand Lodge of Masons a charter, which y. Farrand, 88 Mich. 478, 50 N. W. 446, 14 showed that the Sunset Grand Lodge Free L. R. A. 161. Therefore one must not adopt and Accepted Masons, Colored, of Texas, had a name so similar to that of another as to incorporated, and that said charter gave to draw to himself business intended for that said Grand Lodge the rights to practice other. Chas. S. Higgins Co. v. Higgins Soap ancient free and accepted Masonry in the Co., 144 N. Y. 462, 39 N. E. 490, 27 L. R. A. state of Texas. Since that time the Sunset 42, 43 Am. St. Rep. 769; Supreme Lodge K. Grand Lodge, Ancient Free and Accepted of P. v. Improved Order K. of P., 113 Mich. Masons, has been establishing subordinate 133, 71 N. W. 470, 38 L R. A. 658. In the lodges, practicing free and accepted Mason- last case cited it is said that this principle ry, and engaged solely in a benevolent under- is correctly stated in the following language taking—the upbuilding of the negro race and quoted in the opinion of the court: the paying of benefits to the widows and or

"Where a corporation has appropriated and phans of deceased members of said order. used a name for such length of time as to be

come identified by the name, and had established The evidence further shows, or tends to show, a character and reputation under it, it is a that no person has ever made application to fraud upon the corporation and the public if this the defendant order, thinking or believing name be assumed by others under such circumthat he was making application to the plain- they constitute the original corporation; and

stances as would lead the public to believe that tiff order; that no mail intended for defend- where injury will result to the corporation on ant order has ever been received by plaintiff account thereof, courts of equity will, at the order; that there has never been any con- suit of the injured parties, by injunction refusion in the minds of the public or in the is the special injury to the party aggrieved and

strain the further perpetration of the wrong. It minds of any person with reference to the the imposition upon the public that constitute identity of these two orders. On the con- the wrong which the courts will redress. It is trary, the undisputed evidence shows that not necessary that the wrong should be inteneach of these orders has been contending that should be used under such circumstances as

tionally committed. It is enough that the name it was the only colored Masonic order, and would lead the public to believe that the latthat the other was spurious and clandestine. ter organization was the former, and thereby

But Appellant presents but one assignment of cause injury to the former corporation.”

“where the name was not chosen for the purpose error, which is as follows:

of deception, and has not been used under cir“The testimony is conclusive that the plaintiff, cumstances intended or calculated to deceive, the long prior to the organization of defendant or similarity of names must be such as to deceive ganization, having theretofore long used the ordinary persons proceeding with ordinary care name, was duly and legally incorporated by vir- to justify the inference.” Supreme Lodge K. of tue of the laws of the state of Texas under its said P. v. Improved Order K. of P., supra. name, 'Free and Accepted Masons of the State of Texas,' and that long subsequent to plaintiff's

Mr. High, in his excellent work on Injuncincorporation, the defendant, without any valid tions, after stating the general doctrine goyauthority pretended to organize a Masonic order erning the jurisdiction of equity in restraint and Supreme Lodge in the state of Texas, con of the infringement of trade-marks, says: trary to Masonic law, under the same, or substantially similar name, to wit, under the name “Courts of equity, in granting relief by injunc'Ancient Free and Accepted Masons (Colored),' tion in this class of cases, proceed upon the and by virtue thereof began operations in Texas. principle that it is a fraud upon one who has asserting and pretending that the last-named established a trade and carried it on under a givbody was the only true and regularly constituted en name to permit another to assume that name, body of colored Masons in this state, using the or the same name with a slight alteration, in same password, emblems, badges, and other in- such manner as to induce persons to deal with signia common to Masonry, and which had been him in the belief that they are dealing with one Tex.)

FREE AND ACCEPTED MASONS V. ANCIENT F. & A. M., COLORED

267

*

that, "since false representation is the principal | was materially different from the appellant ground for relief in equity by injunction against order and the only colored Masonic order in the piracy of a trade-mark, when no false rep- the state or elsewhere. So upon the authoriresentation or deceit is used, defendant only endeavoring, by his advertisement and by selling ty of Supreme Lodge K. of P. v. Improved the article complained of, to show to the public Order K. of P., supra, it might be held in that the article is that of his own manufacture, the instant case that the appellee is using equity will not interfere, in the absence of any the name "Ancient Free and Accepted Maevidence of persons having been misled or deceived in the matter, even though defendant may sons” under circumstances which do not lead also use, as designating his article, the name the public to believe that it is the same or a of the original manufacturer of the article sold branch order of the appellant, and hence by plaintiff," and that “when, upon the case presented, there is no evidence of fraud or deceitful could lawfully take the name adopted by it. representation, the court will decline to inter- The cases cited by appellant very clearly fere." Sections 1085 and 1086.

show that, where a firm or corporation has Thus it appears, according to the rule an- built up a business under a firm or corporate nounced by Mr. High, that even in suits name which has given that name a pecuniary involving the infringement of a trade-mark value, another firm or corporation cannot injunctive relief cannot successfully be in adopt another name so similar as to mislead voked unless the evidence discloses that the public, and lead individuals to the belief persons have been misled or deceived to that the firm or corporation using the new their injury by false representations used name is the same firm or corporation that by the party charged with the infringe- was using that old name.

was using that old name. This principle of ment. The only difference in the names law is well established, but it is not, in our of the organizations involved in the case opinion, applicable in the case at bar. The of Supreme Lodge K. of P. v. Improved rule applicable to the facts of the present Order K. of P., cited above, consists in the case is announced in the case of Grand words, “Improved Order,” which is found Lodge v. Grimshaw, 34 App. D. C. 383. In in the title of the appelleé therein. There that case the court, speaking through Mr. was no evidence that the appellee chose the Chief Justice Shepard, says: 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 supposed to be the order Knights of Pythias, party in the name, but to prevent fraud and de

is not that there is property acquired by one nor 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 of equity, upon principles of justice, will interjoin complainant's society?" answered the pose to prevent"-citing Original La Tosca Sosame in the negative, and held that the cial Club v. La Tosca Social Club, 23 App. D.

C. 96-104. name "Improved Order Knights of Pythias” could be lawfully taken as the name of the

The case of International Committee of new order formed by members who had Young Women's Christian Association v. withdrawn from the old order of Knights of Young Women's Christian Association of Pythias. There is as much dissimilarity in Chicago, 194 Ill. 194, 62 N. E. 551, 56 L. R. the names of the two organizations involved A. 888, is more in point and comes nearer in the suit now before this court as in the sustaining the contention of appellant in this names of the organizations before the court case, in our opinion, than any other authoriin the case cited, and just as much reason

ty cited by its able counsel; but, as pointed for holding that the appellant here is not out by counsel for appellee: entitled to the injunctive relief sought.

“The Supreme Court in that case gave relief There is no evidence warranting the conclu- similar as to deceive and mislead the public in

so sion that appellee order selected the name to believing that the defendant was the plaintiff "Ancient Free and Accepted Masons, Color- or a committee of plaintiff, and the court in its ed,” with the intention that its order should opinion said, in substance, that it clearly apbe understood and supposed to be the appel- ant adopted the name advisedly, and for the pur

peared from the entire record that the defendlant order. On the contrary, the evidence pose of leading the general public to believe that tends strongly to show, if it does not con- it stood as a committee and representative of clusively do so, that since the organization plaintiff association.” of the appellee order it has uniformly sought Our conclusion is that the facts did not to convince the public and those contemplat- warrant the interference of a court of equidistrict court should be affirmed. It is there, the construction. The case was tried before fore accordingly so ordered.

a jury upon special issues, and damages to Affirmed.

plaintiffs' property from railroad construction and operations in proximity thereto

were found by special verdict, as follows: HOUSTON BELT & TERMINAL RY. CO. V.

"(1) What was the fair market value of plainVOGEL et ux. (No. 6959.)

tiffs' property, inclusive of improvements there(Court of Civil Appeals of Texas. Galveston. on, immediately before the construction and opJune 21, 1915. Rehearing Denied

eration of the defendant's railroad in the vicinOct. 14, 1915.)

ity of it? Answer: $10,000.

“(2) What was the fair market value of plain1. TRIAL Eww139, 140_PROVINCE OF JURY- tiffs" property, inclusive of the improvements WEIGHT OF TESTIMONY.

thereon, immediately after such construction The credibility of witnesses and the weight and operation of defendant's railroad? Answer: of testimony is a question peculiarly for the $5,250. jury.

"(3) If the market value of said property was [Ed. Note. For other cases, see Trial, Cent. less immediately after than immediately before Dig. $$ 332-335, 338–341, 365; Dec. Dig. On the construction and operation of defendant's 139, 140.]

railroad, was the depreciation or decrease of 2. EVIDENCE m568 — OPINION EVIDENCE — value caused by such construction and operation EXPERT TESTIMONY.

of defendant's railroad? Answer: Yes.' A jury are not concluded by opinion evi

On this verdict a judgment was rendered dence, but may apply their own experience and in plaintiffs' favor for $4,750, from which the knowledge in solving the question.

[Ed. Note.-For other cases, see Evidence. defendant has appealed. Cent. Dig. $8 2392–2394; Dec. Dig. Om 568.) Appellant's first, second, third, fourth, and 3. EMINENT DOMAIN 307 - CONSTRUCTION fifth assignments of error in different forms OF RAILROAD-DAMAGES.

contend that the verdict was excessive, unWhether plaintiff's property was depreciat der the claim that the value found before ed by reason of the construction of a railroad the railroad operations, to wit, $10,000, was held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Eminent Do- too large, and the value found after, to wit, main, Cent. Dig. 88 820-824; Dec. Dig. Om $5,250, was too small. The claim is made, , 307.]

particularly in the first assignment, that the 4. EVIDENCE O 474-OPINION EVIDENCE. value fixed before the railroad operation

Where plaintiff testified to his familiarity was so grossly excessive as to indicate that with conditions and knowledge of the market value of his property, which he claimed had de- the jury was actuated by sympathy, bias, preciated by reason of the construction of a prejudice, or some other improper motive. railroad, he was competent to testify as to the [1-3] We shall not undertake to set out the depreciation, and, notwithstanding that on testimony bearing upon the issues presented cross-examination he became confused as to the distinction between actual and market value, by the assignments, but find that the evihis testimony could not be stricken ; that fact dence adduced upon the trial fairly warrantgoing only to the weight of his testimony. ed the verdict in that regard. Seven wit

[Ed. Note. For other cases, see Evidence, nesses, including the plaintiff John Vogel, Cent. Dig. $$ 2196–2219; Dec. Dig. 474.)

testified as to the market value of the plainAppeal from District Court, Harris Coun- tiffs' property before and after the constructy; Norman G. Kittrell, Special Judge.

tion of defendant's railroad and the operaAction by John Vogel and wife, against tions thereover, and no two of them agreed. the Houston Belt & Terminal Railway Com- Vogel's estimate was that the property, inpany. From a judgment for plaintiffs, de cluding the improvements thereon, was worth fendant appeals. Affirmed.

before the construction and operation $12,500, See, also, 156 S. W. 261.

and after $6,000; his witness W. E. Carter

placed the value before at $11,500, and after Andrews, Streetman, Burns & Logue, Coke at $6,000; while the five following named K. Burns, and W. L. Cook, all of Houston, witnesses placed the value as follows: W. for appellant. John Lovejoy and Presley K. H. Taylor, $5,187.50 before, and $8,750 after; Ewing, both of Houston, for appellees.

J. W. N. Burkett, $5,400 before, and $6,250

after; J. H. McCracken, $6,000 before, and McMEANS, J. John Vogel and wife sued an increase in value of 30 to 50 per cent. the Houston Belt & Terminal Railway Com- after; L. W. Murdock, $5,500 before, and pany, alleging damages by way of deprecia- $11,000 after; and L. Dunn, $6,250 before, tion in the market value of certain real es- and the same amount after. As before tate in the city of Houston owned by them, shown, the jury found the value to be the depreciation complained of being charg- $10,000 before, and $5,250 after. There was ed to the fact that the Houston Belt & Ter- testimony admitted which would warrant a minal Railway Company had built certain finding that there was no demand for proptracks in front of said property and had car- erty situated as was plaintiffs' for other purried on railway operations over said tracks poses than residences; and the witness last from and after the early part of the year 1910. named testified that plaintiffs' property for Defendant answered by general denial, and residence purposes had decreased 75 per pleaded that the property, instead of depre- cent. by reason of the construction and opciating, had enhanced in value by reason of Ieration of defendant's railroad. The witTex.)

HOUSTON BELT & TERMINAL RY. CO. v. VOGEL

269

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.

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 what its market value was. Houston Belt & that they were actuated by sympathy, bias, Terminal Ry. Co. v. Vogel, 156 S. W. 261. prejudice, or some other improper motive. On the last trial he testified on direct exThey were not concluded by the opinion of amination to the effect that he was specially experts, but in weighing the testimony they familiar with the property in question, and had a right to apply their own experience the other property in the neighborhood of it, and knowledge, and to deduce therefrom the and of the location and character thereof, truth as they believed it. Thus in Lawson's and had been for about 30 years, and had Expert and Opinion Ev. (2d Ed.) p. 496, un-owned and lived on the property in question der rule 61, it is said:

as the home of his family for 28 years, and "We have seen the opinions of attorneys tes- had special knowledge of the uses to which tifying to the value of lawyers' services are not the property in question and the other neighconclusive on the jury, who may act independently or in opposition to them, applying to the borhood property had been put during that case their own experience and knowledge of the period, which was for residence purposes character of the services. The same is true exclusively, and of the uses to which the of the opinions of all experts and nonexperts as property was adapted before and since the to value." In Head v. Hargrave, 105 U. S. 45, 26 L. railroad operations, and that from his knowl

edge and familiarity with the property in Ed. 1028, it is said:

"While they (the jury] cannot act in any case question and its improvements, which he had upon particular facts material to its disposi- built, and with property in the neighborhood, tion resting in their private knowledge, but its location and character, and the uses to should be governed by the evidence adduced, which same had been put, and to which such they may, and to act intelligently they must, judge of the weight and force of that evidence was adapted, he had knowledge and an by their own general knowledge of the subject opinion of the market value of the property of inquiry.”

immediately before and immediately after In Patterson v. Boston, 20 Pick. (Mass.) the railroad operations in question on August 166, it is said:

10, 1910, and that the market value of the “Juries would be very little fit for the high same immediately before such operations was and responsible office to which they are called, $12,700, and immediately after not more especially to make an appraisement, which de- than half that amount, say, $6,000. Among pends on knowledge and experience, if they might not avail themselves of those powers of other things, he testified on the direct extheir minds when they are most necessary to amination: the performance of their duties."

"From my knowledge and the nature and The jury were not compelled to credit all character of this property, and the uses for the testimony of any witness or reject it all which it is fit, and its location, I am able, from (Railway v. Taylor, 20 Tex. Civ. App. 654, give an opinion of the market value of this

my knowledge of these things, to estimate and 49 S. W. 1055), but could have accepted as property just before the railroad began its optrue a portion of the testimony of any or erations there. In my opinion, its market valeither of them, rejecting the remainder, in ue, without the road there, at that time, was order to base their verdict upon what they were 21. lots). In my opinion, immediately

$6,000 a lot, with the improvements (there believed to be the real facts, Garcia v. after the road was constructed and began opSanders, 90 Tex. 109, 37 S. W. 314.

erations there, it was not worth hardly half of The assignments do not point out reversi- what it was worth before; I don't think it was.

Nobody would have it, you couldn't sell it to ble error, and are overruled.

anybody—that is, for home purposes. That is [4] The sixth assignment complains that my opinion, from my acquaintance with the the court erred in overruling defendant's mo- property and knowledge of it." tion to exclude all of the testimony of the On cross examination he testified: plaintiff John Vogel as to the value of his

"I say that my property, in my opinion, just

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