Standard Monument Co. v. Mount Hope Cemetery & Mausoleum Co.

• Decision Date: 16 July 1963
• Docket Number: No. 31260,31260
• Citation: 369 S.W.2d 876
• Parties: STANDARD MONUMENT COMPANY, Inc., a Corporation, (Plaintiff) Appellant, v. MOUNT HOPE CEMETERY AND MAUSOLEUM COMPANY, a Corporation, W. Donald Dubail, Reeves S. Dell, and John M. Litzinger, (Defendants) Respondents.
• Court: Missouri Court of Appeals

Page 876

369 S.W.2d 876

STANDARD MONUMENT COMPANY, Inc., a Corporation, (Plaintiff) Appellant, v. MOUNT HOPE CEMETERY AND MAUSOLEUM COMPANY, a Corporation, W Donald Dubail, Reeves S. Dell, and John M Litzinger, (Defendants) Respondents.

No. 31260.

St. Louis Court of Appeals, Missouri.

July 16, 1963.

Rehearing Denied Sept. 4, 1963.

Robert O. Hetlage, Richard A. Hetlage, St. Louis, for appellant.

Charles R. Judge, Dubail, Judge & Kilker, St. Louis, for respondents.

WOLFE, Judge.

The plaintiff corporation, which deals in burial monuments and grave markers, brought this suit seeking to invalidate certain regulations imposed by the defendant cemetery company. The regulations required that burial markers be installed by the cemetery at a price based upon the size of the marker. The petition was in three counts. Count 1 charged a violation of the Missouri anti-trust statute. Count 2 alleged that the regulation was beyond the power of the defendant to adopt and the plaintiff was illegally prevented from completing contracts with those owning burial lots in the cemetery. Count 3 alleged a conspiracy among the individual officers and directors of the defendant company. The defendant counterclaimed for a sum owing for the installation of a burial marker, the installation having been made at the plaintiff's request. The court sustained a motion to dismiss Count 1 and Count 3 of the plaintiff's petition, and there was a finding for the defendant on Count 2, and also for the defendant on its counterclaim. The plaintiff prosecutes this appeal.

The following are the facts of the case as they appear from the pleadings and the evidence. The defendant Mount Hope Cemetery and Mausoleum Company is a corporation organized for business purposes. It owns and operates the Mount Hope Cemetery. It and its predecessor in title sold burial lots to numerous purchasers, specifying that the lots sold were for burial purposes only and subject to the rules and regulations of Mount Hope Cemetery 'which have been and may hereafter from time to time be adopted.'

In 1946 a portion of Mount Hope Cemetery was set aside to be known as 'Memorial Gardens'. In that section no monuments were allowed. Grave markers were permitted, and the regulations as to them had been changed from time to time. The regulation in force at the time here involved was adopted in March, 1959, and was as follows:

'MEMORIAL GARDENS

'Only bronze markers of good quality and craftmanship set flush with the turf and mounted on a granite base are permitted. Please specify manufacturer, design, size, and catalog number. The following charges include the granite base and installation:

'Single markers (maximum size 340 sq. in.)--26cents per sq. in.

'Companion markers (minimum size 400 sq. in.)--28cents per sq. in.'

The defendant cemetery company retails bronze markers of the kind described in the regulation. It allows no monument dealer to set any bronze marker. The cemetery company supplies a granite base to which the bronze marker is attached and sets all of the markers in the Memorial Gardens section of the cemetery, whether it sells the bronze marker or the marker is sold to the lot owner by some other dealer.

With full knowledge of these regulations, plaintiff agreed with a Mrs. Ripper to erect a grave marker on a lot belonging to her located in the Memorial Gardens section of the Mount Hope Cemetery. The remains of her husband were buried there, and the marker was to be a 'double bronze marker' with both her husband's name and her name upon it.

The marker was 48 inches by 16 inches, and it was required that it be set upon a granite base, which would cost approximately $55.00. The price of the base and the setting, according to the cemetery regulations, totaled $215.04. The purchaser had first obtained a price from the Mount Hope Cemetery and had been told that a marker 44 inches by 13 inches would cost $350.00. The plaintiff company knew the price offered by the cemetery and closed a contract with Mrs. Ripper for a larger marker and at a price $10.00 lower, in order 'to bring a test case'. The marker was made as ordered from the manufacturer by the plaintiff monument company and delivered to it. It was then taken by the president of the monument company to the Mount Hope Cemetery. He asked that the Standard Monument Company be permitted to install the marker, but such permission was denied. He then offered the defendant cemetery company $100, which was refused. According to the petition, after repeated demands, the defendant company did install the Ripper marker and billed the plaintiff company for $215.04, which was the known, established price charged by the defendant cemetery company. The plaintiff president testified that he told the Mount Hope superintendent that he would not pay $215.04, and the plaintiff has never paid it.

There was testimony that a smaller marker was sold by the Standard Monument Company to another lot owner. The contract in that sale was for $185.00. The cemetery company informed the monument company that the installation price on this marker would be $87.36. The marker was never delivered to the cemetery. The president of the monument company testified that if he paid the $87.36 charge, he would have had a profit of $40.00 on the sale of the second marker. He stated that he would lose $46.00 on the Ripper contract if he paid the cemetery charge of $215.04.

The plaintiff monument company called as a witness a man who testified that he and his partner installed monuments and markers. They had been engaged in the business since 1934. They set foundations mostly in small cemeteries that had no maintenance crews. He said that six cemeteries in the St. Louis area set the grave markers by their own crews. He testified that he only charged $12.00 to dig a hole and set a marker.

The cemetery in question was started about 1912. There was a foreclosure, in which the present defendant cemetery corporation took title in 1939. In 1943 a perpetual care fund was created by setting aside, for that purpose, a part of the revenue from the sale of lots. The resetting of markers, care of monuments, and other services came out of the general revenue of the defendant corporation, and not from the perpetual care fund. The cemetery was being operated by the defendant at a substantial loss up to 1955. Since the 1959 regulation there has been a profit.

The Vice-President of the Mount Hope Cemetery and Mausoleum Company testified. He was in charge of the sale of markers and monuments. He had submitted a bid of $350.00 on the Ripper marker. A marker of the size that he bid on would have carried an installation charge of $160.00 under the regulations then in force. The marker itself would have cost between $109.00 and $117.00. A profit would consequently have been made on the sale of the marker itself.

The witness testified that when a marker is sent to the cemetery for installation, it is first checked to see that it conforms to the regulations of the cemetery. It is checked for correctness of spelling, uniformity, and quality. It is necessary to check the bolts, nuts, and washers that come with the marker. If the proper bolts are not there, then it is necessary to buy them and to thread the bolts and the nuts. Normally, it is necessary to do this, and it involves considerable time. After this is done, the bronze marker is then taken to the maintenance shed. The marker is not of uniform thickness and the indentations on the bottom of it are filled with cement. It is then bolted to the granite base. This base is 4 inches thick and extends 2 inches in length and width beyond the marker. The base with the marker attached is then taken to the lot located by the superintendent. The place to set the marker is indicated and a hole is dug. Sand is placed in the hole, and on top of the sand gravel. This permits water to drain away from the bottom of the base. From time to time a marker has to be reset, and no charge is made for this.

In addition to the Memorial Gardens section the cemetery had a conventional section where monuments of any kind desired might be installed by the lot owner. In this there was no restriction against dealers setting monuments and grave markers. The cemetery company would prepare a foundation in that section for a memorial 4 feet by 1 foot, for a charge of $33.50. The dealer was permitted to set the memorial marker.

The statutes upon which the plaintiff Monument Company relies are Sections 416.010, 416.040, and 416.190, RSMo 1959, V.A.M.S.

Section 416.010 declares combinations in restraint of trade to be a conspiracy, and it holds guilty 'any person who shall create, enter into, become a member of or participate in any pool, trust, agreement, combination, confederation or understanding with any person or persons in restraint of trade * * *.'

Section 416.040 sets forth the area covered by the statute where two or more persons enter into 'arrangements, contracts, agreements, combinations or understandings * * *.'

Section 416.090 provides that any person injured in his business by such combination may sue and recover three-fold damages.

We are confronted...