Cedar Memorial Park Cemetery Ass'n v. Personnel Associates, Inc.

• Decision Date: 23 June 1970
• Docket Number: No. 53608,53608
• Citation: 178 N.W.2d 343
• Court: Iowa Supreme Court
• Parties: The CEDAR MEMORIAL PARK CEMETERY ASSOCIATION, the Cedar Memorial Funeral Home Company, the Cedar Memorial Company, Appellants, v. PERSONNEL ASSOCIATES, INC., Irwin Smalheiser and Marion C. Lorenz, Defendants, Iowa Funeral Directors and Embalmers Association, Inc., Appellee.

Page 343

178 N.W.2d 343

The CEDAR MEMORIAL PARK CEMETERY ASSOCIATION, the Cedar Memorial Funeral Home Company, the Cedar Memorial Company, Appellants, v. PERSONNEL ASSOCIATES, INC., Irwin Smalheiser and Marion C. Lorenz, Defendants Iowa Funeral Directors and Embalmers Association, Inc., Appellee.

No. 53608.

Supreme Court of Iowa.

June 23, 1970.

Shuttleworth & Ingersoll, Cedar Rapids, for appellants.

Barnes, Wadsworth, Elderkin, Locher & Pirnie, Cedar Rapids, for appellee.

LeGRAND, Justice.

This is a de novo appeal challenging a decree permanently enjoining plaintiffs from selling pre-need funeral contracts contrary to sections 147.56(1) and 156.12, Code of Iowa, and holding plaintiffs violated the provisions of chapter 523A, Code of Iowa in establishing trusts for funds paid under such contracts.

There are three plaintiffs. The Cedar Memorial Park Cemetery Association is a corporation which deals exclusively in the sale of cemetery lots. The Cedar Memorial Company is a separate corporation dealing in the sale of grave markers and monuments, and the Cedar Memorial Funeral Home Company is a third corporation which renders complete funeral services. Although the issues here involve only the funeral home corporation, the trial court enjoined all three and no complaint is made of that portion of the decree. We refer here to The Cedar Memorial Funeral Home Company as the sole plaintiff.

Plaintiff started this action against Personnel Associates, Inc. and two individuals connected with that company. Later the Iowa Funeral Directors and Embalmers Association, Inc. intervened, asking that plaintiff be enjoined from selling pre-need funeral contracts through paid agents in violation of sections 147.56(1) and 156.12 of the Code. The original action of plaintiffs against Personnel Associates, Inc. and its employees was subsequently dismissed, and this comes to us solely as a dispute between plaintiff and the intervenor.

Although the record is long and clearly reflects considerable bitterness between the litigants, the ultimate result depends on our interpretation of the pertinent parts of chapters 147, 156, and 523A, Code of Iowa. We refer to the applicable statutes in the appropriate places throughout this opinion.

The material facts are virtually undisputed. Plaintiff operates a funeral home in Cedar Rapids and, until enjoined from doing so, employed agents to solicit and sell pre-need funeral contracts. A pre-need funeral contract is simply an agreement made by one during his lifetime by which he arranges for disposition of his body after death.

The agents employed by plaintiff to solicit these contracts were given a sales course in which they were taught, among other things, the most effective approach and the most successful technique for this type of selling. They were paid a commission for all sales made.

The intervenor is a state organization whose membership consists of approximately 75 percent of all licensed funeral directors and embalmers in Iowa. Needless to say, plaintiff is not one of them.

The intervenor claims that plaintiff's activities violate the terms of section 147.56 (1) which provides in material part as follows:

'For the purposes of section 147.55 (providing the grounds upon which a license of a funeral director and embalmer may be revoked) 'unprofessional conduct' shall consist of any one of the following acts:

'1. Solicitation of professional patronage by agents or persons popularly known as 'cappers' or 'steerers', or profiting by the acts of those representing themselves to be agents of the licensee. * * *'

The issue is squarely joined since plaintiff readily admits it hires agents to solicit business, pays them a commission, and profits by their acts in selling pre-need funeral contracts. We believe it fair to say the statutory reference to cappers and steerers--terms importing sinister motive--has no application. Black's Law Dictionary, Revised Fourth Ed., defines 'capper' as a 'decoy or lure for purpose of swindling' and 'steerer' as 'one who gains the confidence of the person intended to be fleeced and who may be said to steer or lead a victim to the place where the latter is to be robbed or swindled.' See also Barron v. Board of Dental Examiners of California, 109 Cal.App. 382, 293 P. 144, 145.

Our statute not only prohibits solicitation by such evil persons but also generally forbids that activity by agents. Our discussion treats these pre-need contracts as having been procured for plaintiff by its agents.

Plaintiff relies on the following propositions for reversal:

(1) That chapter 147, particularly section 147.55, does not apply because it regulates only certain professions while the occupation of funeral director and embalmer is a business, not a profession;

(2) Even if it should be held that chapter 147 applies to plaintiff, the regulations sought to be imposed by chapter 156 are not a proper exercise of police power and are not enforceable because they are arbitrary, discriminatory, and bear no reasonable relationship to public health, morals, or the general welfare;

(3) Chapter 156, Code of Iowa, insofar as it attempts to prohibit the solicitation of pre-need contracts by funeral directors while permitting such solicitation by others is unconstitutional because it denies plaintiff equal protection of the law under Amendment 14 to the Constitution of the United States, and section 6, Article I, of the Constitution of Iowa;

(4) The evidence does not show plaintiff violated the provisions of chapter 523A, Code of Iowa, in establishing trusts for purchasers of pre-need contracts; and

(5) The intervenor is not entitled to relief in any event because it does not come into court with clean hands.

I. We cannot agree with plaintiff's argument that chapter 147 has no application because it purports only to regulate the conduct of certain Professions while plaintiff is engaged in a Business--funeral directing and embalming.

It is quite true that many courts, including our own, have held the occupation of funeral director and embalmer to be a business and have declined to classify it as one of the professions under certain circumstances. State v. Winneshiek Co-Operative Burial Association, 237 Iowa 556, 563, 22 N.W.2d 800, 802; Grissom v. Van Orsdel, Fla.App., 137 So.2d 246, 247; Trinka Services, Inc. v. State Board of Mortuary Science, 40 N.J.Super. 238, 122 A.2d 668, 669. None of these cases, however, was decided under facts similar to those existing here and are not helpful to plaintiff.

Plaintiff's argument that funeral directing and embalming cannot be considered a profession for the regulatory purposes of chapter 147, Code, must fail in view of the definition contained in section 147.1 as follows:

'For the purpose of this and the following chapters of this title (Title VIII, which embraces chapters 146 through 158 and deals with 'the practice of certain professions affecting public health'): * * * (3) 'Profession' shall mean * * * funeral directing or embalming.'

We have frequently held the legislature is its own lexicographer. Its definitions are binding on us. S & M Finance Company, Fort Dodge, v. Iowa State Tax Commission, Iowa, 162 N.W.2d 505, 507; Inter-state Nurseries, Inc. v. Iowa Department of Revenue, Iowa, 164 N.W.2d 858, 861.

We find no merit in plaintiff's argument that it is not subject to the provisions of chapter 147, particularly 147.55.

II. Plaintiff's next proposition asserts that the regulatory sections of chapters 147 and 156 cannot apply to it at all because they are limited to those Licensed to engage in certain occupations. Since a corporation is not eligible for licensing, plaintiff argues, it is therefore not subject to the restrictions imposed on those who are.

Section 147.2 provides in part:

'No person shall engage in the practice of * * * funeral directing or embalming as defined in the following chapters of this title, unless he shall have obtained from the state department of health a license for that purpose.'

Section 156.1 in pertinent part provides:

'2. A 'funeral director' is a person engaged in or conducting, or holding himself out, in whole or in part, as being engaged in:

'a. Preparing (for) * * * or directing and supervising the burial or disposal of dead human bodies.

'b. Furnishing * * * any funeral services, or embalming, * * *.

'c. Who shall, in connection with his name or funeral establishment use the words 'funeral director', 'mortician' or any other title implying that he is engaged as a funeral director as defined in this subsection.

'3. An 'embalmer' is a person engaged in, or holding himself out as engaged in, the practice of disinfecting or preserving dead human bodies, * * *.

'Nothing contained in this chapter shall be construed as prohibiting the operation of any funeral home or funeral establishment by any person, fiduciary, firm, co-operative burial association or corporation; provided that each such person, firm, co-operative burial association or corporation shall at all times employ an embalmer and funeral director licensed under the provisions of this chapter, and shall keep the state department of health advised of the name of the licensee or licensees so employed.'

Plaintiff at all times employed a licensed funeral director and a licensed embalmer. Plaintiff wants us to hold that such individuals are subject to the statutory restrictions but that it is not, even though it is permitted to engage in this activity solely by reason of a statutory exception granted by section 156.1.

Plaintiff's argument is both simple and plausible; however, we reject it as being entirely inconsistent with and repugnant to the obvious purpose of our law regulating those who engage in the burial or other disposition of dead human bodies.

It is clear that the legislature intended to regulate the disposition of dead human bodies By anyone. If we were to adopt plaintiff's thesis, this statutory purpose...