Respondents, Most Worshipful Prince Hall Grand Lodge of Washington and its Jurisdiction, F. & A.M. et al. (hereafter referred to as Prince Hall Grand Lodge), brought separate actions to enjoin the operation of
The record in this case is voluminous. The trial consumed 8 days. Seventy exhibits were admitted in evidence (6 more were offered and refused). Several exhibits consist of books written by members of the Masonic order on the subject of Negro Masonry in the United States and printed copies of the proceedings of various grand lodge meetings relating to that subject. The testimony of the witnesses, most of which related to the Masonic antecedents of the respective parties, is transcribed in 567 pages of the statement of facts.
At the close of the evidence the trial court rendered an oral opinion (which respondents, for the convenience of this court, have included in an appendix to their brief — 23 pages). In this opinion, the court exhaustively reviewed the evidence and also the many cases relied on by the respective parties.
Thereafter, the trial court entered 26 findings of fact and 8 conclusions of law in each of the consolidated cases (which are virtually identical). After hearing and denying appellants' post-trial motions, the court entered its judgment and decree in each case (effective 30 days thereafter) permanently enjoining the respective appellants from establishing or conducting lodges of Masons or auxiliaries thereof within this state and from using certain specified words or initials indicative of the Masonic order.
Respondents trace their Masonic ancestry from African Lodge No. 459, established in Massachusetts in 1784. The trial court found that the source of all legitimate Freemasonry
"As is well known, the order of Free and Accepted Masons is an ancient and honorable secret fraternity. Its origin is lost in antiquity. The Masonic legend is that it began with the craftsmen at the building of King Solomon's Temple. Documentary rolls and other records, still preserved, of the Fourteenth Century and later centuries prove the establishment and continuity of Masonic lodges at least from such times down to the establishment of the premier Grand Lodge of England in 1717. From that time previously separate lodges became subordinate affiliates of Grand Lodges. All regular grand and subordinate lodges throughout America, directly or indirectly, have sprung from this mother grand lodge. [Citing Encyclopedia Britannica, `Freemasonry.']
"A brief history of Freemasonry among colored people in America, as shown in this record and by historical references and in several judicial opinions, seems appropriate.
"Prince Hall, a free Negro, a native of Barbados, West Indies, became a worthy resident of Massachusetts. He knocked and the door of Masonry was opened to him by a British Military Lodge in Boston in the year 1775. He was the first man of African descent to become a Master Mason in America. Hall became a Revolutionary War patriot, receiving recognition from General Washington and other leaders. After the war, Hall and his brethren were refused a charter by the Provincial Grand Lodge of Massachusetts because of their race. Upon their application, the Grand Lodge of England, `under authority of His Royal Highness, Frederick, Duke of Cumberland, Grand Master of the Most Ancient and Honorable Society of Free and Accepted Ancient Masons,' granted them a charter on September 29, 1784, under the name of African Lodge No. 459, to be opened in Boston. That was done in May, 1787. Later, African Lodge No. 459 declared itself to be a Grand Lodge with jurisdiction throughout the United States, and the Grand Lodge of England granted a patent or provincial powers to the African Lodge as such. After the death of
"As time went along, Prince Hall Grand and subordinate lodges of colored Masons were chartered and organized throughout the United States, Canada and other countries, all of them springing from African Lodge No. 459. These historical facts are more or less confirmed by several judicial opinions. See, Prince Hall Grand Lodge of F. & A. Masons v. Most Worshipful King Solomon Grand Lodge, A.F. & M. (Colored) 62 N.M. 255, 308 P.2d 581; Most Worshipful Widows' Sons Grand Lodge of Ancient F. & A. Colored Masons of Pennsylvania v. Most Worshipful Prince Hall Grand Lodge of F. & A. Masons of Pennsylvania, 160 Pa.Super. 595, 52 A.2d 333; Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons, of Georgia v. Supreme Grand Lodge, Modern Free & Accepted Colored Masons of the World, D.C., 105 F.Supp. 315."
The evidence presented by respondent is in accord with the historical account related above.
The following is a summary of the findings of the trial court:
(1) Prior to the date of its incorporation, respondent Prince Hall Grand Lodge existed as an unincorporated association in the state of Washington from the year 1903, but traces its Masonic background in this state to Prince Hall Ancestry Lodge organized in 1889 at Roslyn, Washington. Prince Hall Grand Lodge was first incorporated in the state of Washington in 1906 under the name of "Grand Lodge of Free and Accepted Masons — African — of Washington." In 1907, the name was changed to "Most Worshipful United Grand Lodge of Washington and Jurisdiction." In 1944, the name was changed to "Most Worshipful Prince Hall Grand Lodge of Washington and its Jurisdiction, F. & A.M."
(2) Appellant John A. Bell Grand Lodge and appellant Universal Grand Lodge organized their grand lodges in the state of Washington in 1945 and 1947, respectively. The former claimed to trace its Masonic ancestry to a lodge that was established by a former Prince Hall member who
(3) The trial court found that respondent Prince Hall Grand Lodge is a legitimate Masonic lodge tracing its Masonic ancestry back to the original colored Masonic lodge in America, African Lodge, No. 459, and that appellants have no legitimate Masonic ancestry.
(4) Respondent Prince Hall Grand Lodge has 12 subordinate or Blue Lodges in this state with almost 800 members and with a corresponding membership in Eastern Star Chapters, Scottish Rite Consistory and Shrine groups. Respondents have about $100,000 invested in buildings and properties in the state of Washington.
(5) Appellants have, since their organization, falsely represented themselves as legitimate Masonic organizations and have sought and gained membership among colored men and women of good moral character who might otherwise have sought affiliation with respondents.
(6) The rituals, ceremonies, distinguishing names, words, insignia, symbols, emblems, badges, signs and paraphernalia used by appellants are identical, or so nearly identical, with those used by respondents as to confuse the identities of appellant organizations with those of respondents, and are calculated to confuse, mislead and deceive, and, in fact, have confused, misled, and deceived the public to the detriment and injury of respondents and of persons who may desire to become members of a legitimate lodge of Free and Accepted Masons or a legitimate auxiliary or associate group thereof.
The findings of fact as summarized above and in all other related particulars material to the trial court's conclusions of law are supported by substantial evidence.
This court has on many occasions affirmed decrees of trial courts which have enjoined the use of identical trade names or trade names so similar as to create confusion in the minds of the public. The rules governing unfair competition in the use of trade names were set forth in Seattle Street R. & Municipal Employees Relief Ass'n v. Amalgamated
The parties to this suit are not engaged in commercial businesses. However, Seattle Street R. & Municipal Employees Relief Ass'n v. Amalgamated Ass'n of Street, Elec. R. & Motor Coach Employees of America, supra, involved two competing relief associations engaged in charitable activities. We said in that case, at page 534:
"While the cases hereinabove cited dealt with commercial businesses and, for the most part, with tangible things sold by them, the principle involved is no less applicable to transactions such as are involved in this case. [Each of the parties was sponsoring a dance and selling tickets for fund-raising purposes.] The underlying concept is that of unfair competition in matters in which the public generally may be deceived or misled."
In the recent case of International Free & Accepted Modern Masons v. Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons of Kentucky, supra, the Kentucky Prince Hall Grand Lodge sought and obtained an injunction against a competing lodge enjoining it from representing itself as a Masonic lodge and using or employing rituals, ceremonies, etc., of an organization of Masons. In the course of its opinion, the Supreme Court of Kentucky said:
"... The cardinal and characteristic words in the names of both of these parties are `Free and Accepted Masons,' the foremost descriptive word being `Masons.' The term and what it signifies is the most valuable asset of the Prince Hall Lodge, which it has sought to protect...."
"We think appellant's use of the word `Mason' or the terms `Free and Accepted Masons' or `A.F. & A.M.' or `F. & A.M.', renders the name of the Grand Lodges so strikingly similar, as to cause confusion, tends to deceive the public, and induces persons to join one institution when actually they intended to join the other. This is verified from what is later said. The quoted words and terms are distinctive features of appellee; indeed, they are its most valuable assets. Consequently, appellee should be protected from any invasion of the right of exclusive use of them, also in the exclusive use of its insignia, symbols, emblems, etc., commonly used by it in the practice of Masonry...."
Among the cases cited by the New Mexico court in support of its holding are these Prince Hall cases: Supreme Grand Lodge, Modern Free & Accepted Colored Masons of World v. Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons, Jurisdiction of Georgia, 209 F.2d 156, cert. den. 347 U.S. 953, 98 L.Ed. 1099, 74 S.Ct. 679 (1954); Most Worshipful Prince Hall Grand Lodge, Free & Accepted Masons of Colorado & Jurisdiction v. Most Worshipful Hiram Grand Lodge, Free & Accepted Ancient York Masons of Colorado & Jurisdiction, National Compact Prince Hall Origin, 85 Colo. 17, 273 Pac. 648 (1928).
Appellants cite the following cases where the courts have been asked, and have refused, to enjoin a lodge from holding itself out as a Masonic lodge. The first case was Most Worshipful Hiram of Tyre Grand Lodge of Ancient Free & Accepted Masons (Colored) of State of California v. Most
The second case is Free & Accepted Masons of the State of Texas v. Ancient Free & Accepted Masons, Colored, 179 S.W. 265 (Tex. Civ. App. 1915). Here both parties claimed to be the only legitimate Negro Masonic lodge in Texas. No determination was made on this issue. The court found that the defendant did not adopt its name with the intent of leading people to believe it was the plaintiff. The court said that it could be held that the defendant adopted its name under circumstances which did not induce a belief that it was the same order as the plaintiff. The court concluded that an injunction was not warranted.
Taylor v. Austin, 221 S.W.2d 933 (Tex. Civ. App. 1949), is factually similar to the Texas case just discussed and was disposed of by denial of an injunction on its authority.
A leading case concerning unfair competition among fraternal organizations is Grand Lodge of Improved, Benevolent & Protective Order of Elks of the World v. Grand Lodge, Improved, Benevolent & Protective Order of Elks of the World, Inc., 50 F.2d 860 (1931). The case involved two colored fraternal organizations. A schism had developed within the plaintiff organization which resulted in the secession of certain representatives and the establishment of a rival order under practically the same name. The court, in an opinion written by the late Judge Parker, speaking for the Court of Appeals (4th Cir.), stated:
"Coming to the merits, it is well established that a benevolent, fraternal, or social organization will be protected in the use of its name by injunction restraining another organization
After citing numerous cases and discussing certain treatises, the court went on to say, at page 864:
"In the case at bar, complainant for more than a quarter of a century had enjoyed the use of its name and had built up thereunder a large fraternal order among the colored people of the United States. Its fraternal, charitable, and educational activities had commended it to the public, and had given membership therein a value to the people from whom it recruited its membership. It was entitled to enjoy the fruits of the organization which it had built up, unhampered by the efforts of others to appropriate to themselves its corporate name with the advantages thereto attaching. If the Virginia members were dissatisfied, they, of course, had a right to withdraw and organize a new order; but they had no right, if they did so, to adopt the name of the original order or to hold themselves out as a branch of that order. To do so constitutes a fraud upon the original order and upon the public, and, if allowed, would result in enabling the rival organization to appropriate to itself the advantages which the original order had built up through years of effort. A more glaring example of unfair competition could not well be imagined."
We think respondents are supported by ample authority in seeking an injunction under the common law of unfair competition.
The trial court also found appellants to be acting in violation of RCW 9.37.050 (Laws of 1911, chapter 46, § 1), relating to the fraudulent use of the name of a secret society. The statute applies to organizations using "the name or title of any secret fraternal association, society, order or organization which has had a grand lodge in this state for five years, ..." It was established that there was a Masonic grand lodge (the distinguishing name of their fraternal order being "Masons") in existence within this state for over 5 years prior to the establishment of appellants' organizations, the latter using the name "Masons" without the authority of the established grand lodge.
Respondents' grand lodge was formed as an unincorporated association in 1903 and was incorporated in 1906. Therefore, respondents' grand lodge having been organized for the 5-year period preceding the enactment of the statute was obviously one of the organizations designed to be protected thereby.
Unless there is merit to the affirmative defenses raised by appellants, the trial court properly granted the injunction.
"... To constitute laches there must not only be a delay in the assertion of a claim but also some change of condition must have occurred which would make it inequitable to enforce it...." Waldrip v. Olympia Oyster Co., 40 Wn.2d 469, 477, 244 P.2d 273 (1952).
The doctrine of laches is based upon the principles of equitable estoppel. Gooden v. Hunter, 56 Wn.2d 617, 355 P.2d 20 (1960); Luellen v. Aberdeen, 20 Wn.2d 594, 148 P.2d 849 (1944).
The trial court, in its oral opinion, referred to appellants' action as "the kind of action that a person might very well say would be better calculated than a lawsuit to accomplish the desired results." We agree with the trial court that starting a lawsuit is not the only way of manifesting dissent or opposition to claimed unfair competition. Under the circumstances of this case, the defense of laches has not been established.
Nor do we find any merit in appellants' claim that the actions were barred by the 3-year statute of limitation found in RCW 4.16.080, subdivision 4, which provides:
"An action for relief upon the ground of fraud, the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud."
"... suits by parties to contracts who are asking to be relieved from contracts that they were fraudulently induced to make, as where a deed has been fraudulently obtained, and suits of that character where fraud is the substantive cause of the action...." Wagner v. Law, 3 Wn. 500, 517, 28 Pac. 1109, 29 Pac. 927 (1892).
The foregoing statement has been quoted with approval in Morgan v. Morgan, 10 Wn. 99, 107, 38 Pac. 1054 (1894); Cornell v. Edsen, 78 Wn. 662, 663, 139 Pac. 602 (1914); Henriod v. Henriod, 198 Wn. 519, 526, 89 P.2d 222 (1939).
In Constable v. Duke, 144 Wn. 263, 267, 257 Pac. 637 (1927), we also stated:
"The contentions made on the second of the subdivisions quoted, we think, are also concluded by our former cases. We have held that this provision of the statute is applicable only in those instances where fraud is practiced directly upon the complaining party, and is the substantive cause of the action — instances where the complaining party has been induced to assume some obligation or liability or suffer
The basis of this suit is unfair competition. The above quoted provision of RCW 4.16.080 (relating to the limitation of fraud actions) is not applicable. Furthermore, these actions are to enjoin further wrongful conduct, and damages for past injuries are not sought by respondents.
"From early times there have been two distinct masonic fraternities in the United States, one confined to white men and the other to negroes. Each has had its local lodges, grand lodges and supreme lodge, and also several component bodies, including Knights Templar and Scottish Rite consistories. Both have existed in the same territory and have had similar names, rituals and emblems, and yet have been independent and without any interrelation. The white fraternity's existence in this country reaches back to early colonial times. The negro fraternity was organized in Boston in 1784 and afterwards was extended to other sections."
We find no merit in appellants' argument that the prior existence of the white grand lodge in Washington prevents respondents from obtaining relief from unfair competition
There were many books on Masonic history introduced by both parties and admitted into evidence. However, it is contended that the trial court erred in refusing to admit into evidence exhibit No. 46, a history book offered by appellants. The record shows that this book was a supplement to a treatise on Masonic history written by a person other than the author of the original treatise. Appellants did not attempt to qualify this person as an expert nor did they show any other basis to justify the court in ruling that his work should be considered an authoritative history. Therefore, the trial court did not abuse its discretion by refusing to admit this volume into evidence.
"(2) The deposition of a party ... may be used by an adverse party for any purpose."
Since the deposition was, in fact, introduced into evidence, we shall not presume that it was not taken for that purpose. Therefore, there was no error in taxing this item.
As pointed out in Ancient Egyptian Order of Nobles of Mystic Shrine v. Michaux, supra, from colonial times there have been two Masonic fraternities in the United States — one white and the other Negro. The record indicates that lodges of "Prince Hall" origin have a valid claim to being members of the ancient and honorable order known as Masons. A photostatic copy of the original charter granted to the lodge organized by Prince Hall in 1784 was appended to the brief of respondent.
That a group of persons seeks to form an organization devoted to charitable and fraternal objectives is commendable, but they cannot adopt the name of an already established order which has gained a highly esteemed reputation in the minds of the public. This court stated, in State ex rel. LaFollette v. Hinkle, 131 Wn. 86, 93, 229 Pac. 317 (1924):
"... Nothing so exclusively belongs to a man or is so personal and valuable to him as his name. His reputation and the character he has built up are inseparably connected with it. Others can have no right to use it without his express consent, and he has a right to go into any court at any time to enjoin or prohibit any unauthorized use of it...."
While the LaFollette case involved an individual and is not authority for enjoining the acts of appellants in this case, it does show the value which this court has placed upon the right to the exclusive use of an established name.
There is no doubt that the persons joining appellants' lodges thought they were joining a legitimate Masonic lodge and that this was a principal reason for seeking membership. This is amply borne out by the fact that many of appellants' members resigned from their lodges after respondents began their campaign to inform the public
For the reasons stated in this opinion, the two decrees appealed from must be affirmed. It is so ordered.
OTT, C.J., FINLEY, HUNTER, and HAMILTON, JJ., concur.
June 12, 1963. Petition for rehearing denied.