Board of Provincial Elders of Southern Province of Moravian Church v. Jones, 447

• Decision Date: 06 March 1968
• Docket Number: No. 447,447
• Citation: 159 S.E.2d 545,273 N.C. 174
• Parties: , 37 A.L.R.3d 262 The BOARD OF PROVINCIAL ELDERS OF the SOUTHERN PROVINCE OF the MORAVIAN CHURCH, or Unitas Fratrum v. David R. JONES and the Bible Moravian Church.
• Court: North Carolina Supreme Court

Page 545

159 S.E.2d 545

273 N.C. 174, 37 A.L.R.3d 262

The BOARD OF PROVINCIAL ELDERS OF the SOUTHERN PROVINCE OF the MORAVIAN CHURCH, or Unitas Fratrum v. David R. JONES and the Bible Moravian Church.

No. 447.

Supreme Court of North Carolina.

March 6, 1968.

Hayes & Hayes by James M. Hayes, Jr., and W. Warren Sparrow, Winston-Salem, for defendant appellants.

Womble, Carlyle, Sandridge & Rice by I. E. Carlyle and Charles F. Vance, Jr., Winston-Salem, for plaintiff appellee.

LAKE, Justice.

The plaintiff's motion to dismiss the appeal as premature is denied. This Court has entertained many appeals from orders granting interlocutory injunction. See: State on Relation of North Carolina Milk Commission v. National Food Stores, 270 N.C. 323, 154 S.E.2d 548; Western Conference of Original Free Will Baptists v. Creech, 256 N.C. 128, 123 S.E.2d 619; First Presbyterian Church of Raleigh v. St. Andrews Presbyterian College, 254 N.C. 717, 119 S.E.2d 867; Little Pep Delmonico Restaurant, Inc. v. City of Charlotte, 252 N.C. 324, 113 S.E.2d 422. The order entered below denies the defendant the right to use 'Moravian' in connection with their church organization and services until the final hearing in this action. The plaintiff sought this order on the ground that the use of the word 'Moravian' in its name by the defendant, during this interval, would do the plaintiff irreparable injury because this name is of great value to a religious body. The plaintiff is in a poor position to contend, as it does in its motion to dismiss, that a denial to the defendants of the use of this name, during this same period, is of no substantial importance to the defendants.

The purpose of an interlocutory injunction is to preserve the status quo of the subject matter of the suit until a trial can be had on the merits. Huskins v. Yancey Hospital, Inc., 238 N.C. 357, 78 S.E.2d 116. At the time this action was instituted, the corporate defendant had come into existence and had been granted by the State a charter giving it the name 'The Bible Moravian Church.' It was already conducting services and engaged in other church activities under that name.

The sole question before Judge Johnston at the hearing upon the order to show cause was whether an injunction should be issued requiring the defendant to discontinue the use of the corporate defendant's name in such church services and activities from the entry of the injunction to the final hearing on the merits. Carroll v. Warrenton Tobacco Board of Trade, 259 N.C. 692, 131 S.E.2d 483; Whaley v. Broadway Taxi Company, 252 N.C. 586, 114 S.E.2d 254; Lewis v. Harris, 238 N.C. 642, 78 S.E.2d 715. That is the only question before us on this appeal. Western Conference of Original Free Baptists v. Creech, supra. In determining it, we are not bound by the findings of the court below but may review the evidence and make our own findings of fact. Western Conference of Original Free Baptists v. Creech, supra.

Neither the findings of fact nor the conclusions of law of the trial judge, at the hearing before him on the application for the temporary injunction are binding upon, or are to be considered by, the superior court at the final hearing of the matter. Huskins v. Yancey Hospital Inc., supra. The same is true of our decision upon this appeal and our statement of the facts upon which our conclusion rests. The facts relating to the right of the defendant to call itself 'The Bible Moravian Church' have not been finally determined.

It is apparent from a review of the evidence at the hearing below that the defendants are just as desirous as is the plaintiff that the public be aware of their separation from the plaintiff and its affiliated congregations. The plaintiff offered no evidence to contradict the testimony of the defendants that they gave wide publicity to the fact of the separation and have made no effort to solicit funds as an affiliate of the plaintiff. There is no evidence whatever in the record to show that any person joined the defendant church or attended any service conducted by it under the belief that it was associated with the plaintiff. There is no evidence whatever in the record to show that any contribution has been made to the defendant church by a donor under the impression that the defendant church is affiliated with the plaintiff. There is no evidence whatever in the record to show that any contribution which otherwise would have been made to the plaintiff, or to any of its affiliated organizations, has not been made by reason of the existence of the corporate defendant and its use of its corporate name.

There is no evidence whatever in the record to suggest that any service, declaration of belief or doctrine, or any other activity of either defendant has reflected upon or endangered the excellent reputation of the plaintiff and congregations affiliated with it. There is nothing in the record to indicate that either of the defendants contemplates any such action or any defamation or criticism of the plaintiff or of any organization affiliated with it. The plaintiff has stipulated that this 'is not a controversy over doctrine.'

There is nothing in the record to suggest that the defendants have used or contemplate any use of the term 'Unitas Fratrum' (Unity of the Brethren) in or in connection with any of their activities. The only act with which they are charged by the plaintiff is the use of the word 'Moravian' in their church name. The defendants admit that this name is precious to the plaintiff and the members of its affiliated churches because they 'associate with the name the most sacred of their personal relationships and the holiest of their family traditions,' but the defendants say that it is equally precious to them for the same reasons, they having the same religious heritage. They appeal from the order which denies them the use of this name prior to a final determination of the plaintiff's claim that it has the exclusive right to its use.

The burden is upon the applicant for an interlocutory injunction to prove a probability of substantial injury to the applicant from the continuance of the activity of which it complains to the final determination of the action. See: Carroll v. Warrenton Tobacco Board of Trade, supra; Western Conference Original Free Baptists v. Creech, supra; Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388; Huskins v. Yancey Hospital Inc., supra; McIntosh, North Carolina Practice and Procedure, 2d ed., § 2196; 28 AM JUR, §§ 22 and 25. G.S. § 1--485(1) authorizes the granting of an application for a temporary injunction 'when it appears by the complaint that the plaintiff is entitled to the relief demanded, and this relief, or any part thereof, consists in restraining the commission or continuance of some act the commission or continuance of which, During the litigation, would produce injury to the plaintiff.' (Emphasis added.) An injunction pendente lite should not be granted where there is a serious question as to the right of the defendant to engage in the activity and to forbid the defendant to do so, pending the final determination of the matter, would cause the defendant greater damage than the plaintiff would sustain from the continuance of the activity while the litigation is pending. Huskins v. Yancey Hospital Inc., supra.

To compel the defendants to discontinue the use of the corporate defendant's name, pending the final determination of its right to do so, would obviously handicap the defendants greatly and would be a grave injustice to them if they should ultimately prevail in this action. In the absence of any evidence to show any enticement of members of congregations affiliated with the plaintiff into the services of the defendant church, or the attraction to it of any contribution as the result of the donor's confusion concerning its affiliation with the plaintiff, it is difficult to believe that the plaintiff, and its many worthy enterprises, could be seriously damaged by permitting the corporate defendant to use the word 'Moravian' as part of its name until the trial of the action and the final determination of its right to do so.

Counsel for the plaintiff argued in this Court that for the defendants to call their church 'The Bible Moravian Church' tends to create in the minds of the public the inference that the plaintiff and churches affiliated with it do not accept the authority of the Bible and, therefore, threatens to damage the plaintiff pending the outcome of this litigation. This position is inconsistent with the contention that the name of the defendant church will cause the public to believe the defendant is affiliated with the plaintiff. It would seem to indicate that the plaintiff, itself, is not clear as to how, if at all, the use of the corporate defendant's name pending the final hearing of this matter will injure the plaintiff. If there is no clear and present danger of such injury, the injunction pendente lite should not have been issued. 'Injunctive relief is granted only when irreparable injury is real and immediate.' Hall v. City of Morganton, 268 N.C. 599, 151 S.E.2d 201. This is especially true with reference to the issuance of a preliminary injunction. Carroll v. Warrenton Tobacco Board of Trade, supra; McIntosh, North Carolina Practice and Procedure, 2d ed., § 2196; 28 AM JUR, Injunctions, § 52.

For the reason that the evidence fails to show a reasonable probability of substantial injury to the plaintiff through use by the corporate defendant of its corporate name until its right to do so can be finally determined, we hold that it was error to grant the temporary injunction, and it should be and is hereby vacated.

Upon this appeal it is not necessary for us to determine whether the defendants have a right under either the Constitution of this State or the Constitution of the United States to name their church 'The Bible Moravian Church,' and we express no opinion upon that question.

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