Creswill v. Grand Lodge K. P.Of Ga. Supreme Court Of Ga.

• Decision Date: 21 February 1910
• Citation: 133 Ga. 837,67 S.E. 188
• Parties: CRESWILL et al. v. GRAND LODGE K. P.OF GEORGIA. Supreme Court of Georgia.
• Court: Georgia Supreme Court

67 S.E. 188

133 Ga. 837

CRESWILL et al.

v.GRAND LODGE K. P.OF GEORGIA. Supreme Court of Georgia.

Supreme Court of Georgia.

Feb. 21, 1910.

GRAND LODGE K. P.OF GEORGIA.

(Syllabus by the Court.)

1. Insurance (§ 692^*)—Names — Rights of Fraternal Order—Infringement.

Where an association known as the Knights of Pythias, with a supreme lodge incorporated in the District of Columbia, and a grand lodge unincorporated in this state, the main objects of which were fraternal and benevolent, but which received and owned large amounts of property and had an insurance feature, acquired a proprietary right in the name by which it was known and under which it operated, no other association of persons organized for similar purposes had the right to fraudulently copy or infringe upon that name.

(a) The mere addition to the distinctive name of the defendants' association of the words, "of North America, South America, Europe, Asia. Africa, and Australia, jurisdiction of Georgia." cannot be declared as matter of law to constitute such a difference as to make the name so altered free from the complaint of being an infringement, or to render the finding of the jury that there was a fraudulent infringement contrary to law.

[Ed. Note—For other cases, see Insurance, Cent. Dig. § 1832; Dec. Dig. § 692.*]

2. Corporations (§§ 17, 49*)—Proceedings for Incorporation—Right of Parties to Intervene—Infringement — Right to Injunction.

Upon an application to the superior court for the grant of a charter for a private corporation, the law of this state makes no provision for another person to make himself a party to the proceeding for the purpose of resisting or objecting to the grant of the application. But another corporation or association which has acquired a proprietary right in a name may apply to a court having equitable jurisdiction to enjoin the applicants from fraudulently appropriating such name and obtaining a charter under it for a similar organization, and copying its insignia, badges, and emblems, to the detriment of the plaintiff.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. §§ 53-58, 137; Dec. Dig. §§ 17, 49.*]

3. Insurance (§ 692*) — Use of Corporate Name—Action to Enjoin — Laches — Evidence.

The evidence authorized the jury to find that there had been no such laches on the part of the plaintiffs as to bar them from a right to equitable relief.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1832; Dec. Dig. § 692.*]

4. Nature of Parties. [

Under the facts of this case, the rulings made by some courts that generally a foreign corporation has no right to enjoin a domestic corporation, which has been chartered under a similar name, from continuing to do business thereunder, especially in the absence of fraud, are not applicable.

5. Parties Not Federal Corporations.

This was not a suit between two corporations chartered in the District of Columbia under General Incorporation Act May 5, 1870, c. 80, | 3, 16 Stat. 101. The incorporated Supreme Lodge of the plaintiffs' association was a party, but that of defendants' association was not so. An assignment of error based on a contrary hypothesis was without merit.

6. Constitutional Law (§§ 215, 253^2-*)—Due Process of Law — Equal Protection of ! Laws.

Where the plaintiffs did not allege or base their proceeding on the fact that the defendants were colored persons, and the judge in charging the jury made no reference to the racial or social status of either the plaintiffs or the defendants, but submitted the issues as to the rights of the parties without reference to race or color, and the evidence authorized the finding against the defendants regardless of any consideration of their color, it cannot be held that such finding was in conflict with that provision of the Constitution of the United States, which declares, "nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." Const. Amend. 14, § 1.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 714, 732-735; Dec. Dig. §§ 215, 253.*]

7. Grounds of Motion for New Trial Insufficient.

No ground of the motion for a new trial requires a reversal.

(Additional Syllabus by Editorial Staff.)

S. Trade-Marks and Trade-Names (§ 3*)— Name Subject to Ownership — "Arbitrary"—"Fanciful."

A trade-name may be such as indicates the purpose of the association or may be arbitrary or fanciful, such fanciful or arbitrary words or phrases, as applied to an association organized for legitimate purposes, constituting a valid trade-name, and such words or phrases are deemed "arbitrary" or "fanciful" when they do not by their usual and ordinary meaning denote the purposes of the association, but come to indicate their purpose by application and association.

[Kd. Note.—For other cases, see Trade-Marks & Trade-Names, Cent. Dig. §§ 4-7; Dec. Dig. § 3.* For other definitions, see Words and Phrases, voi. 1, p. 487.]

9. Trade-Marks and Trade-Names (§ 99*)—

Infringement.

It is the use and colorable or imitative character of a trade-name that controls upon the question of infringement, and the use made of the name alleged to be infringed is a question for the jury.

[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 113; Dec. Dig. i 99.*]

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by the Grand Lodge Knights of Pythias of Georgia against Charles D. Cres-will and others. Decree for plaintiffs, and defendants bring error. Affirmed.

Bell, Pettigrew & Bell, for plaintiffs in error.

John P. Ross and Hamilton Douglas, for defendants in error.

EDWARDS, J. Charles D. Creswill and others made application to the superior court of Fulton county to be incorporated and made a body politic for the full period of 20 years, with the usual privilege of renewal at the expiration of said term, under the corporate name and style of the Grand Lodge Knights of Pythias of North America, South America, Europe, Asia, Africa, and Australia, jurisdiction of Georgia. The petition set forth that the object of petitioners was not pecuniary gain, but was the social and benevolent benefit of its members and their dependent relatives. They asked to be allowed to organize and charter subordinate lodges in this state and to provide an endowment fund, etc. The defendants in error, the Grand Lodge Knights of Pythias of Georgia, T.. H. Nickerson, D. J. Bailey, John P. Ross, William H. Leopold, R. C. Norman, C. M. Walker, B. D. Brantley, and George T. Cann, filed in said superior court a petition seeking to enjoin the plaintiffs in error from prosecuting said application to be incorporated under the name set forth in the petition for charter, or under the name, "Grand Lodge Knights of Pythias of Georgia, " or any colorable imitation of such name, and from using any name embracing the word "Pythias" in conjunction with the words "Knights of, " or any name which is a colorable imitation of said Grand Lodge Knights of Pythias of Georgia, and from using and wearing emblems and insignia like or a colorable imitation of the emblems and insignia of petitioners; and for general relief. The court granted a rule nisi and a temporary restraining order. On the hearing the Supreme Lodge Knights of Pythias was made a party plaintiff, and it adopted the averments and prayers of the original petition.

Without going fully into the details of the plaintiffs' petition, it is sufficient to state that the following is alleged: The order • of Knights of Pythias of which they were members was organized by Justice H. Rathbone in Washington, D. G, on February 19, 1864. and as a voluntary fraternal society adopted the name "Knights of Pythias, " and has since been in continuous existence throughout the United States, using said name. The first Grand Lodge known as the Grand Lodge Knights of Pythias of the District of Columbia was organized in 1864. The Grand Lodge of Pennsylvania was organized in 1867, and the Grand Lodge of New Jersey and the Grand Lodge of Maryland were each organized in 1868. These Grand Lodges organized the Supreme Grand Lodge Knights of Pythias for the United States on August 11, 1868. Since then the plan has been to organize and maintain subordinate lodges in the cities and i towns throughout the United States and a Grand Lodge in each of the states and territories of the United States, subject to and forming a part of the Supreme Lodge. of the order from which subordinate lodges and Grand Lodges obtain authority and to which they owe allegiance. The first subordinate lodge in Georgia was organized in 1869, and the Grand Lodge of Georgia was organized in 1871. The Supreme Lodge was incorporated under the laws of the United States In the District of Columbia August 5, 1870. Its articles of incorporation were amended under said laws October 5, 1S75, and again on May 5, 1882; the name of the order being preserved in its entirety. The plaintiffs' order of Knights of Pythias was incorporated by an act of Congress approved June 29, 1894, by which all the rights, powers, and liabilities of the Supreme Lodge Knights of Pythias, incorporated on August 5, 1870, were preserved and made to survive to the body politic and corporate which was created by the act. This act of 1894 was amended by act of Congress approved June 7, 1900, the terms of this amending act being to make valid all meetings of the legislative bodies of the order held outside of the District of Columbia. The order of plaintiffs embraces more than 650, 000 members, and the subordinate lodges in Georgia own assets valued at $160,319.08. There are in Georgia 143 sections of the insurance branch, with 2, 327 members carrying an insurance protection of $4,113, 500. The first lodge of the defendants' order was organized in Mississippi in 1880. Their Supreme Lodge was organized on October 10, 1889. Their first subordinate lodge in Georgia was organized in 188...