Gilmore v. Supreme Lodge of Loyal Orange Institution

Argued December 8, 1927. Over seventy-five years ago there was instituted an unincorporated association called "Loyal Orange Institution of the United States of America," which has since been continuously maintained. It was a Protestant society whose avowed object was, inter alia, to foster and maintain the principles established in Great Britain by William of Orange. The association extended into several states where subordinate and state grand lodges were established. There was also a Supreme Grand Lodge, at the meeting of which in 1914 a split unfortunately occurred which divided the association into two factions, one known as the Kirkland and the other the "Lemmon" faction. Each claimed to be the true association and continued to employ its name. This caused intolerable confusion and resulted in much litigation. Some phase of the controversy has reached this court on at least five occasions. See Loyal Orange Institution v. Morrison, 274 Pa. 302; Loyal Orange Institution v. Morrison, 269 Pa. 564; State Grand Lodge of Pa. v. Morrison,277 Pa. 41; Commonwealth ex rel. v. Kelley et al., 287 Pa. 139; and see Dunlap v. Harbinson, 66 Pa. Super. 564. It has also been before the Supreme Court of New York, (Bailey et al. v. Montgomery et al., 177 N.Y. App. Div. 777), and of Michigan (Supreme Grand Lodge, etc., v. Grand Lodge L. O. Inst.,215 N.W. 24). In each instance the Kirkland faction has been adjudged the true and original Loyal Orange Institution of the United States of America and entitled, inter alia, to the sole use of its name, which the Lemmon faction has repeatedly been restrained from using. In 1890 the association took out a state charter in Pennsylvania under the original name and the Lemmon faction recently secured a national charter under the same name in the District of Columbia. The plaintiffs in this case being of the Kirkland faction, duly adjudicated the rightful Loyal Orange Institution, to further secure their rights as such, did, on March 12, 1926, file their bill in the trial court against the defendants, who represent the Lemmon faction; wherein, after setting out the facts and prior adjudications, they prayed for an injunction to restrain the defendants, inter alia, "from using or employing the name 'Loyal Orange Institution' or any part thereof, either alone or in combination with other names or terms, or the name 'Loyal Orange Lodge,' either alone or in combination with other names or terms, for the purpose of designating their association, or any lodge or other subordinate division or subdivision or agency thereof, or from using or employing the name 'Orangeman' for the purpose of designating any member thereof."

The case was heard upon bill, answer, replication and testimony, from which the chancellor found the facts as averred in the bill and recommended a decree in favor of plaintiffs. In due course the court in banc sustained the findings and recommendations of the chancellor and entered a final decree that the defendants and each of them "be restrained perpetually from using the names and titles Supreme Grand Lodge of the Loyal Orange Institution of the United States of America, and from using or employing the badges, emblems, rituals or seals of said Supreme Lodge of the Loyal Orange Institution of the United States of America, or Loyal Orange Institution of the United States of America, and from making use of any part of said names or titles, or any name, title or design naturally tending to mislead and to induce the belief that the defendant organizations and those in association with them as lodges, officers or members are in any way a part of the plaintiff Supreme Grand Lodge of the Loyal Orange Institution of the United States of America, or the Loyal Orange Institution of the United States of America, or are in any way connected or affiliated therewith; and it is ordered that the costs of this proceeding be paid by the defendants." Plaintiffs, contending that the decree was inadequate to afford them the necessary relief, brought this appeal.

Their main contention is the failure of the trial court to expressly restrain defendants from the use of the word "Orange" in connection with the name or title of the seceding or Lemmon faction. This contention is untenable. The decree does forbid the use of plaintiffs' name or any part thereof naturally tending to mislead. The words "Orange" and "Orangemen" had acquired a definite signification long before the plaintiff association was organized. By breaking from the original lodge the seceders lost the right to use its name or any other name so similar as to breed confusion; but did not forfeit their right to be known as "Orangemen" or to use the word "Orange," when so done as not to interfere with, or prejudice the rights of the plaintiffs. Members of a fraternal order like the one in hand, by seceding, lose the right to use the name of the parent order or any similar name, but may choose a new one which will identify their principles, keeping clear from an identity with the old. For example, it was held that seceding members of the Knights of Pythias might reorganize under the name Improved Order Knights of Pythias: Supreme Lodge v. Improved Order K. or P. (Mich.), 38 L.R.A. 658. This is well illustrated among churches, where Presbyterians have reorganized as United Presbyterians, Methodists, as Free Methodists, or Wesleyan Methodists, Baptists, as Freewill Baptists, etc. Wherever the new name is so distinct from the old as to avoid confusion, no law is violated. Each of the contending factions here has approximately five thousand members, and doubtless there are others in the United States who are not affiliated with either faction; so we are not satisfied that plaintiffs are entitled to the exclusive use of the words "Orange" or "Orangeman," but the right to the exclusive use of the name borne during the seventy-five years must be respected.

An action in equity determined by the Circuit Court, at Baltimore, Maryland, in 1924, definitely adjudged plaintiffs the rightful Loyal Orange Institution and defendants as seceders therefrom. This has properly been held res judicata of the rights of the respective parties: Commonwealth ex rel. v. Kelly et al., supra; Supreme Grand Lodge et al. v. State Grand Lodge et al., supra. It is urged for appellant that the decree entered in the Maryland case is res judicata of the right of plaintiff to the exclusive use of the word "Orangeman" as descriptive of their order. A sufficient answer thereto is that appellants, in the instant case, made no prayer for a similar decree. What they did ask was an injunction restraining defendants from using the name "Orangeman" for the purpose of designating any member of their order, — an entirely different matter. The Maryland decree enjoins the defendants "from using within the State of Maryland the name of the Supreme Grand Lodge of the Loyal Orange Institution in the United States of America, the complainant, in whole or in part, or any other name similar thereto or suggestive thereof." The manifest intent of this decree, considered as a whole, is to prevent defendants using the name or such part thereof as to constitute a name similar to or suggestive of that of plaintiffs, and that the term "in part" does not refer to a separate word. If it does, then defendants can not employ in their title the word "Loyal," the word "Orange," the word "Independent," the word "America," or the words "United States," although the name as a whole bears no resemblance to plaintiffs'. In the instant case, the decree as above quoted restrains defendants from using any part of the plaintiffs' name in a manner naturally tending to mislead. This we believe accords with the proper intendment of the Maryland decree and, hence, it is unnecessary to consider the conclusiveness of this feature thereof.

The chancellor and court in banc gave the case painstaking consideration and we are not convinced of error.

The decree is affirmed and appeal dismissed at the cost of appellants.