Women's Mut. Benefit Soc., St. Mary of Carmen, of Newton v. Catholic Soc'y Feminine of Maria S.S. of Monte Carmelo, of Newton

• Citation: 23 N.E.2d 886,304 Mass. 349
• Parties: WOMEN'S MUT. BENEFIT SOC., ST. MARY OF CARMEN, OF NEWTON, v. CATHOLIC SOCIETY FEMININE OF MARIA S. S. OF MONTE CARMELO, OF NEWTON.
• Decision Date: 29 November 1939
• Court: United States State Supreme Judicial Court of Massachusetts

304 Mass. 349

23 N.E.2d 886

WOMEN'S MUT. BENEFIT SOC., ST. MARY OF CARMEN, OF NEWTON,

v.CATHOLIC SOCIETY FEMININE OF MARIA S. S. OF MONTE CARMELO, OF NEWTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 29, 1939.

Suit in equity by the Women's Mutual Benefit Society, St. Mary of Carmen, of Newton, against the Catholic Society Feminine of Maria S. S. of Monte Carmelo, of Newton, to restrain defendants from representing themselves in any way as Societa' Maria S. S. Del Monte Carmelo Feminile. From a final decree dismissing the bill, plaintiff appeals.

Affirmed.Appeal from Superior Court, Middlesex County; M. Morton, Judge.

P. C. Borre, of Boston, for plaintiff.

B. Ginsburg and W. E. Ginsburg, both of Boston, for defendant.

DOLAN, Justice.

This is a suit in equity. In the bill the plaintiff prays specially that the defendant be restrained from representing itself ‘in any way as Societa’ Maria SS. Del Monte Carmelo Feminile.' The case was referred to a master who dealt with it in his report on the basis that the plaintiff not only sought the relief set forth in the special prayer, but also sought to have the defendant enjoined from using its corporate name. Since the plaintiff cannot prevail as to these subject matters we assume in its favor that the granting of relief with relation to the corporate name of the defendant would be within the scope of the stating part of the bill. Bleck v. East Boston Co., Mass., 18 N.E.2d 536.

Material facts found by the master are these: The plaintiff was incorporated on June 6, 1938, under the provisions of G.L.(Ter.Ed.) c. 176, as a fraternal benefit society, and the defendant was incorporated on May 19, 1938, under the provisions of G.L. (Ter.Ed.) c. 180, which relate to the creation of civic, educational, charitable, benevolent or religious corporations. Both corporations were outgrowths of a voluntary society called ‘Societa’ Femminile di Maria SS. del Carmine,' in which dissension had arisen among the members. The plaintiff corporation uses the ‘Italian’ name, ‘Societa’ Femminile Maria ss. del Carmine' on applications for membership, and in its business meetings. The defendant makes similar uses of the ‘Italian’ name ‘Societa’ Maria ss. del Monte Carmelo Femminile.' Material ultimate findings of the master are (1) that the ‘Italian’ names used by the plaintiff and defendant are so similar as to ‘lead to confusion’ (paragraph 30); (2) that the ‘English’ or ‘charter’ names of the plaintiff and defendant do not so closely resembleone another as to ‘mislead the public or lead to confusion’ (paragraph 29); and (3) that the English or charter name of the defendant is so similar to the corporate name of the plaintiff ‘as to be likely to be mistaken for it’ (paragraph 32).

Objections of the plaintiff appended to the master's report, which became exceptions by implication of law, Zuckernick v. Jordan Marsh Co., 290 Mass. 151, 155, 194 N.E. 892, are as follows: ‘1. Paragraph 29 and paragraph 32 are inconsistent as findings of fact. 2. The facts as reported by the Master in his entire report as a matter of law should set forth a conclusion that the English names as well as the Italian names of the complainant and respondent in this case are such that they might mislead the public or lead to confusion.’ An interlocutory decree was entered overruling the plaintiff's exceptions and confirming the master's report. The plaintiff did not appeal from this decree. A final decree was thereafter entered, so far as now material, dismissing the bill. From this decree the plaintiff appealed. See G. L. (Ter.Ed.) c. 214, § 27; Gibbons v.Gibbons, Mass., 4 N.E.2d 1019, and cases cited.

The plaintiff has not argued its exceptions to the inconsistent ultimate findings of the master relative to the corporate names of the parties, but has elected to proceed upon the finding most favorable to it, namely, that the corporate name of the defendant is so similar to the corporate name of the plaintiff ‘as to be likely to be mistaken for it.’ Since the plaintiff cannot prevail upon this phase of the case we deal with it on the same basis.

The plaintiff rests its contention that the defendant should be enjoined from using its corporate name upon the provisions of G. L. (Ter.Ed.) c. 176, § 6, and c. 155, § 9. Chapter 176, § 6, whereunder it is provided that the name of a fraternal benefit society ‘shall not so closely resemble the name of any corporation or insurance company already transacting business in the commonwealth as to mislead the public or lead to confusion,’ cannot avail the plaintiff since the master has found that the defendant was incorporated before the plaintiff was. For the same reason the provisions of c. 155, § 9, afford the plaintiff no aid. It follows that the judge did not err in this respect in dismissing the bill.

The question remains whether on the facts found by the master the court below erred in not enjoining the defendant from the use in any manner of the name ‘Societa’ Maria ss. del Monte Carmelo Femminile,' adopted by it for use in applications for membership in its association, in view of the fact that the plaintiff, for the same purposes,...