Terwilliger v. Graceland Memorial Park Ass'n

• Decision Date: 15 January 1960
• Docket Number: No. C--1581,C--1581
• Parties: Robert R. TERWILLIGER, trading as Kenngott-Terwilliger Co., Plaintiff, v. GRACELAND MEMORIAL PARK ASSOCIATION, a corporation of the State of New Jersey, et al., Defendants.
• Court: New Jersey Superior Court

Page 205

59 N.J.Super. 205

157 A.2d 567

Robert R. TERWILLIGER, trading as Kenngott-Terwilliger Co., Plaintiff, v. GRACELAND MEMORIAL PARK ASSOCIATION, a corporation of the

State of New Jersey, et al., Defendants.

No. C--1581.

Superior Court of New Jersey

Chancery Division.

Jan. 15, 1960.

Hofstra & Hofstra, Paterson (Howard Stern, Paterson, appearing), for plaintiff.

Osborne, Cornish & Scheck, Newark (Harry V. Osborne, Jr., Newark, appearing), for defendants Hollywood Memorial Park, Inc. and Rosedale and Linden Park Co.

David D. Furman, Atty. Gen. (Morton I. Greenberg, Deputy Atty. Gen., appearing), pro se.

SCHERER, J.S.C.

The issues framed by the pretrial order in this case are (a) whether the plaintiff is entitled to enjoin the defendants from pursuing the practices and courses of conduct charged in the complaint, as amended; (b) whether the plaintiff has standing to bring this suit; (c) whether the Attorney General is a necessary party; and (d) whether the plaintiff has suffered any loss to his business because of the conduct of the defendants, which is alleged to be unfair competition.

The bases of this suit are the decisions of the Supreme Court in Frank v. Clover Leaf Park Cemetery Ass'n, 29 N.J. 193, 148 A.2d 488 (1959), modifying the judgment of the Chancery Division at 48 N.J.Super. 337, 137 A.2d 605 (1957), and of the Appellate Division in Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J.Super. 244, 128 A.2d 281 (App.Div.1957).

At the opening of the trial, a consent judgment for the plaintiff was entered against the defendants, Graceland Memorial Park Association and Graceland Management Corporation, and the trial proceeded against the remaining defendants, Hollywood Memorial Park, Inc. (hereinafter called 'Hollywood') and Rosedale and Linden Park Company (hereinafter called 'Rosedale'). It was stipulated that the evidence presented would be against Hollywood, but that such evidence applied with equal force to Rosedale, and that whatever judgment was entered in favor of or against Hollywood, based upon such evidence, would be the same judgment to be entered as to Rosedale.

Hollywood is completely a memorial park type cemetery, and Rosedale is partially so. A memorial park cemetery follows a uniform pattern of rolling lawns, where graves are marked by tablets or markers set flush with the turf. No other type marker is permitted. This not only gives uniformity of appearance but assists in the mowing and trimming of the lawns. The overwhelming majority of the markers in Hollywood are made of bronze, but granite is permitted. The bronze markers are affixed to a concrete base and the marker, subjoined to the base, is then set in an excavation made at the grave site. In most instances, no permanent foundation is installed to which the marker, with its concrete base, is attached.

Plaintiff is a monument dealer who sells both the traditional type monument and the bronze and granite markers for installation in memorial parks. Defendants also sell and install the bronze markers for use in their cemeteries. They do not sell granite markers. Plaintiff complains that the acts of the defendants in selling and installing the bronze markers to lot owners in their cemeteries constitute an unfair competitive practice; that the acts are Ultra vires; that the cemetery charges for installation and maintenance are unreasonably high; and that he has suffered, and will continue to suffer, injury to his business as a result thereof. Defendants deny these allegations and say that their acts are entirely proper, and not Ultra vires, because they are general business corporations, having been incorporated under Title 14 of the Revised Statutes, N.J.S.A. rather than cemetery associations incorporated under Title 8 (hereinafter called the 'Rural Cemeteries Act'). They also deny that their charges are unreasonable or that plaintiff has suffered any damage.

This appears to be a test case. The evidence discloses that the cost of the litigation is being borne by the state organization of monument dealers. Plaintiff and other monument dealers interpret the decision in the Frank case as requiring that all cemeteries cease any operations not immediately or reasonably connected with the interment of bodies. This would require them to terminate the sale of markers, winter grave covers and similar enterprises. See Frank v. Clover Leaf Park Cemetery Ass'n, supra; Di Cristofaro v. Laurel Grove Memorial Park, supra; and People ex rel. J. H. Anderson Momument Co. v. Rosehill Cemetery Co., 3 Ill.2d 592, 122 N.E.2d 283 (Sup.Ct.1954). These cases hold that cemetery corporations' independent enterprises of selling memorials are Ultra vires, as well as contrary to the public interest, and must be discontinued.

Plaintiff testified that he does not own a lot either in Hollywood or Rosedale; that he does solicit lot owners in these cemeteries for sale of memorials; that Hollywood is about two miles from his place of business, and Rosedale is even further away; that he has sold bronze markers for installation in Hollywood beginning in 1952 and through 1959, the greatest number being 20 in 1954 out of total sales of 24 for that year. He admitted that neither defendant has refused to install bronze markers sold by him, nor interfered, or attempted to interfere, with his sales. He buys the bronze markers--which are the real items at issue here (there being few granite markers installed)--from the same dealers who sell to defendants and at the same prices. The resale profit varies from 100% To 150%. The defendants install all markers, whether sold by themselves or others. They have reserved this function to themselves under their regulations. Such a regulation was approved as proper in the Frank case, 29 N.J. at page 207, 148 A.2d at page 495. The defendants make the same charge for installation of markers sold by memorial dealers like the plaintiff as they do for markers sold by them directly to lot owners. In fact, the total charges made by the plaintiff to his customers, which include the cemetery charge for installation, usually exceed by from $10 to $40 the total charges made by the defendants to the lot owners who buy directly from them.

Plaintiff contends that Hollywood's charges for installation and current maintenance are unreasonably high. He said, 'I think the customer is paying too much for installation.' He admitted, however, that he did not know the cost to the defendants of these services. The present charges have been unchanged since 1955. These charges can hardly be said to affect the plaintiff's business, since they are the same no matter who sells the marker. Furthermore, plaintiff absorbs no part of the charges, but passes them on to his customers in their entirety. There is no evidence here, as was noted in the Di Cristofaro case, 43 N.J.Super. at page 255, 128 A.2d at page 286, that defendants assess excessive charges to dealers for installation to force lot owners to deal with the cemetery, and not with the memorial dealers.

Testimony was given by Charles Frank (the plaintiff in Frank v. Clover Leaf Park Cemetery Ass'n, supra) of a time study he made of the actual cost of the installation of a bronze marker. This was to show that the defendants' charges are unreasonably high. Mr. Frank's installation, made only for the purpose of providing evidence in this case, was under entirely different conditions and circumstances and did not take into consideration many important cost factors. I find his evidence on this score to be unpersuasive.

It is admitted that the defendants have not made any cost accounting time study, and that the charge for installation and current maintenance, which is on a sliding scale depending upon the size and type of marker, is to some extent arbitrary, but plaintiff has not shown that it is unreasonable, nor that he could sell more markers if the charges were reduced. The formula was established in 1955, and the testimony introduced on behalf of the defendants was that the charge was evolved after considering defendants' overhead and other cost factors, and was based upon the charges for installations of this nature generally used in memorial park type cemeteries in this and other areas.

An attempt was made to show that the money received for the current installation charges was not properly spent, and that the markers were not properly maintained after installation, but in my opinion this fell far short of sustaining the burden of proving improper maintenance. But, even if this were true, the cause of action would be one by the lot owner, or by the Attorney General, against the cemetery, and not by the plaintiff. He has no interest in the maintenance of the markers in the cemetery.

The real object of this suit is to stop cemeteries from selling memorials, thus leaving the field clear for the memorial dealers. The latter claim that the defendants use unfair competitive practices, in that they have a list of lot owners whom they can contact in an effort to sell markers, which lists are not available to memorial dealers. The dealers are limited in their sales to seeking to ascertain, by telephone or other means, whether persons own lots in cemeteries and, if they do, to then attempting to sell markers to them, or by making contacts through information available in the obituary notices in the daily papers. The defendants do not endeavor to sell markers to any persons except those lot owners whose lots are paid for. They admittedly do contact these lot owners in an effort to sell them the bronze markers. But, this can hardly be said to be unfair competition when it is considered that 90% Of the cemetery lots are sold by the defendants through direct solicitation of persons whom they contact either through telephone calls, direct mailing, or otherwise. Having created the customer potential for markers by their own efforts in the original sale of lots, there would seem to be no reason...