Norfolk Monument Company v. Woodlawn Memorial Gardens, Inc, 1040

Decision Date21 April 1969
Docket NumberNo. 1040,1040
Citation22 L.Ed.2d 658,394 U.S. 700,89 S.Ct. 1391
PartiesNORFOLK MONUMENT COMPANY, Inc. v. WOODLAWN MEMORIAL GARDENS, INC., et al
CourtU.S. Supreme Court

Howard I. Legum and Louis B. Fine, for petitioner.

Frederick S. Albrink, for respondent Woodlawn Memorial Gardens, Inc.

William C. Worthington, for respondents Rosewood Memorial Park, Inc., and others.

Jefferson B. Brown, for respondent Gr enlawn Cemetery Park Corp.

Bernard Glasser and Stuart D. Glasser, for respondent Roosevelt Memorial Park & Cemetery Corp.

William H. King, for respondents Jas. H. Matthews & Co. of Virginia and others.

PER CURIAM.

The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. §§ 15, 26 alleging that the respondents had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. §§ 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents—Matthews, a manufacturer of such markers, and five operators of cemeteries (called 'memorial parks') that sell the markers—were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents' motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F.Supp. 1. The Court of Appeals affirmed. 4 Cir., 404 F.2d 1008.

We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents:

'(1) Despite the unskilled nature of the work, all of the memorial parks refuse to permit the plaintiff to install markers sold by it; all of them insist that the work be done by the cemeteries themselves.

'(2) None of the memorial parks charges lot owners a separate installation fee in the case of markers purchased from the cemeteries.

'(3) All of the memorial parks require the payment of an installation fee by the plaintiff for installing markers purchased from the plaintiff. The plaintiff plausibly maintains that the actual cost of installation comes to about $3. Yet, enormous installation fees are charged plaintiff * * *.

'(4) All of the memorial parks require a specific alloy content in the bronze markers installed, and reserve the right to reject non-conforming markers. The alloy content requirement happens to be the same as manufacturer Matthews' markers and the same as is implicitly suggested in a pamphlet ('Modern Cemeteries') distributed by Matthews to its customers. All of the memorial parks except Roosevelt are customers of Matthews.

'(5) There is evidence that Greenlawn, Woodlawn and Princess Anne have attempted to dissuade lot owners from purchasing markers from the plaintiff. The affidavit of plaintiff's president states that numerous other incidents of this nature have occurred.

'(6) Defendant Matthews, in its pamphlet 'Modern Cemeteries,' suggests a number of practices which in effect erect competitive barriers to retailers other than the cemeteries themselves.

'(7) Many of these practices have been adopted by the memorial park defendants, as evidenced by affidavits in the record, and by the 'rule books' of Rosewood, Princess Anne and Greenlawn.

'(8) There is evidence of numerous visits to and conferences with the memorial parks by sales representatives of Matthews.' 404 F.2d, at 1012—1014.

The District Court found that the rules relating to the alloy content and installation of the markers were reasonable '(i)n view of the continuing obligation of perpetual care imposed upon the cemeteries, in (their) contracts with lot owners * * *.' 290 F.Supp., at 3. But the business justification for these restrictive rules was disputed by the petitioner, which proffered evidence that the markers required very little permanent care and that, in any event, the funds for that purpose were already provided from another source. The reasonableness of the rules was a material question of fact whose resolution was the function of the jury and not of the court on a motion for summary judgment. The same is true of the inferences to be drawn from respondent Matthews' pamphlet. The District Court dismissed it as without any possible significance because it was a mere 'form book,' which 'specifically points out * * * that it contains suggested standards of fair and reasonable regulations which the cemetery would be advised to adopt but says that '* * * Jas. H. Matthews & Co. is not permitted to make recommendations and suggests that the reader consult his own attorney."* 290 F.Supp., at 3. Again this self-serving...

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