Mills v. Carolina Cemetery Park Corp.

• Decision Date: 13 April 1955
• Docket Number: No. 379,379
• Citation: 242 N.C. 20,86 S.E.2d 893
• Court: North Carolina Supreme Court
• Parties: Wllllam L. MILLS, Jr., on Behalf of Himself and Other Owners of Burial Lots in Carolina Memorial Park, v. CAROLINA CEMETERY PARK CORPORATION and Gamaliel Coats Smith Hugenschmidt.

Page 893

86 S.E.2d 893

242 N.C. 20

Wllllam L. MILLS, Jr., on Behalf of Himself and Other Owners of Burial Lots in Carolina Memorial Park, v. CAROLINA CEMETERY PARK CORPORATION and Gamaliel Coats Smith Hugenschmidt.

No. 379

Supreme Court of North Carolina.

April 13, 1955

Hartsell & Hartsell and William L. Mills, Jr., Concord, for plaintiff, appellee.

L. E. Barnhardt, C. M. Llewellyn and M. B. Sherrin, Jr., Concord, for defendants, appellants.

PARKER, Justice.

Plaintiff instituted this action on behalf of himself and other owners of burial lots in Carolina Memorial Park against Carolina Cemetery Park Corporation and Gamaliel Coats Hugenschmidt.

This is a summary of the allegations of his Complaint:

One. Prior to June 1942 the defendant Carolina Cemetery Park Corporation--hereafter called Cemetery Park--conceived plans for the Carolina Memorial Park, and through its agents and officers contacted plaintiff, and others, to sell them burial lots in the proposed park.

Two. To induce plaintiff, and others, to purchase burial lots in the proposed Memorial Park, Cemetery Park furnished its agents and officers elaborate maps and brochures of the proposed park, and instructed them to represent to plaintiff, and others, that the main object of the proposed park was to abolish the 'old undemocratic method of burial' where a man's wealth and prestige were shown by towering monuments, and to substitute therefor the 'new totally democratic method of burial' where all are interred exactly alike. In 1942 Cemetery Park sent two of its agents--both stockholders and one a director--to see plaintiff to sell him a burial lot.

Three. Cemetery Park, through its agents, directors, printed material and deeds, represented to plaintiff, and others, that all sepulchers would be beneath the sod, and marked only by bronze tablets; that certain plots of ground would be set aside in the proposed park for the erection of a multi-colored fountain, a sun dial and garden, a hut of meditation, a Masonic Memorial, a chapel, a singing tower and a Veterans' Memorial; that an adequate perpetual care fund would be established to provide proper care and upkeep of the proposed park; that the less expensive aesthetic features would be erected first, and as the proposed park developed and more funds became available the more expensive features, such as the chapel and singing tower would be built; that a beautiful and imposing singing tower would be erected as a monument to those who found a final resting place in 'God's Garden,' furnishing sweet sacred music during Sunday afternoon concerts and during funeral services, upon request; that a large and imposing chapel of stone or granite would be erected for funeral services; and that markers for the burial lots could be purchased from any available source, provided they were of bronze and of a size and type approved by Cemetery Park.

Four. The plaintiff, and others, relying upon these representations purchased burial lots in the proposed park, and have been wilfully and intentionally cheated, wronged and defrauded by Cemetery Park in these respects: (1) Cemetery Park has permitted the defendant Hugenschmidt, a former officer of Cemetery Park with full knowledge of its rules and regulations, to bury her deceased husband in a granite tomb above the ground in the Memorial Park in a section reserved solely for underground sepulchers and at the base of the Masonic Memorial; (2) Cemetery Park, though 10 years have passed since construction began on the Memorial Park and though over one-fourth of its total number of lots have been sold, has not set aside one cent for the erection of a singing tower or chapel; (3) Cemetery Park does not intend to erect a singing tower or chapel as represented, but plans to erect a cheap substitute for the singing tower; (4) that Cemetery Park has not established, and does not intend to establish a perpetual care fund to care for the Memorial Park, and (5) has paid exorbitant sums of money to stockholders, directors and officers, which sums would have been adequate to fulfill the representations made to plaintiff and others.

Five. The wrongful acts and omissions of Cemetery Park have been wilfully and intentionally planned, and executed or omitted, and are in breach of the specific agreements of Cemetery Park with the plaintiff, and others, property owners in the Memorial Park, and in breach of the contract upon which plaintiff and others purchased property in the Memorial Park.

Six. Cemetery Park has made unreasonable rules and regulations relative to the use of property in the Memorial Park, which it has arbitrarily enforced, and has imposed certain restrictions upon plaintiff, and others, which are not embodied in its rules and regulations, in that: (1) it has refused to authorize plaintiff to place a marker on his property in memorial Park, which marker was of a type approved by Cemetery Park, because plaintiff planned to buy the marker from someone other than it; (2) it has permitted markers not purchased from it to be placed in the Memorial Park; (3) it has demanded that plaintiff furnish proof that his proposed marker meets its specifications, though it has never obtained such proof on any other marker placed in Memorial Park; (4) it has informed plaintiff that he will be charged a fee of $35 for the care of any marker he does not buy from it, though it has never charged any one else for such service, and does not care for the markers.

Seven. All 'restrictions, rules, regulations, and impositions, as well as others hereinafter referred to, and still others contained in the rules and regulations adopted by the defendant corporation, but which have not been set out herein, are unlawful and unreasonable,' exceeding its lawful authority and are imposed, applied and enforced 'in a capricious, arbitrary, unreasonable and unlawful manner.'

Eight. Cemetery Park has wrongfully engaged in these acts to monopolize the business of furnishing markers in Memorial Park in order to enrich its stockholders, and removes all identification from graves making it almost impossible to find them. That this removal of identification is arbitrary and unreasonable, and plaintiff further alleges the custom of morticians in marking graves.

Nine. Cemetery Park adopted unlawful rules forbidding any one other than itself to do unnamed services in Memorial Park, which the owners could do, thereby extorting from them unreasonable sums of money.

Ten. Cemetery Park has attempted to defraud property owners in Memorial Park by stamping upon their delivered deeds for burial lots 'This Property has been Recorded,' when it had not been, and that such acts were wilful and fraudulent and intended to keep the owners from having their deeds recorded.

Eleven. Cemetery Park by its rules and regulations compels all people desiring to sell or transfer property in the Memorial Park to employ it to prepare the deeds for which it charges, thereby attempting to monopolize the making of deeds and is practising law without a license in violation of G.S. § 84-4.

Twelve. Plaintiff, and other owners, of burial lots in the Memorial Park have a property right in the Memorial Park, and are without a remedy at law whereby their interests may be protected.

Wherefore, the plaintiff prays: One. That a receiver be appointed for Cemetery Park until such time as an adequate fund is set aside for the perpetual care of the Memorial Park, and plans are perfected for the construction and payment of the proposed singing tower and chapel. Two. That Cemetery Park be enjoined from monopolizing the business of selling markers to property owners in Memorial park; from attempting to coerce the property owners in Memorial Park into buying markers from it; from adopting any rules applicable to property owners in the Memorial Park, which do not apply to all alike; from charging any fee for any service which is unreasonable or above that usually charged by others for similar service; from stamping deeds for lots in Memorial Park 'This Property Has Been Recorded'; from practising law; from removing markers placed flush or can be placed flush with the earth by an undertaker free of charge. Three. That Cemetery Park be ordered to place a bronze marker similar to other markers in the Memorial Park at a charge not in excess of the price usually charged by others for similar services. Four. That the defendant Hugenschmidt be required to remove the body of her husband from the granite tomb at the base of the Masonic Memorial, and that Cemetery Park be required to restore the Masonic Memorial to its original condition, prior to the erection of the Hugenschmidt tomb.

By leave of Court plaintiff amended his Complaint to allege that the matters complained of are of common or general interest to a large number of persons so numerous that it is impracticable to bring them all into court.

The defendants demurred to the Complaint on four grounds: One. Several causes of action have been improperly united. Two. The Complaint does not state facts sufficient to constitute a cause of action, in that the plaintiff has not legal capacity to sue, and in that necessary allegations as to fraud are lacking. Three. There is a defect of parties defendant because there is no relationship between the defendants as to the relief prayed. Fourt. There is a defect of parties plaintiff in that plaintiff is the only party in interest.

The Complaint further alleges that the defendant Carolina Cemetery Park Corporation is a corporation duly organized and existing under and by virtue of the laws of the State of North Carolina with its principal place of business in Cabarrus County.

The Trial Judge overruled the demurrer, and the defendants excepted and appealed.

It would seem from a study of the Complaint that plaintiff has attempted to state and to unite in one cause of action five causes of action. First. A cause of action against the corporate defendant for...