For modification -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. Opposed -- None. The opinion of the court was delivered by Francis, J.
Certification was granted to review the determination of the Chancery Division of the Superior Court with respect to the validity of certain rules and regulations and allegedly ultra vires commercial practices of the defendant Clover Leaf Park Cemetery Association.
The plaintiff Charles Frank has been engaged in selling and installing bronze and granite cemetery markers, plaques and monuments for more than 28 years. During that period, his place of business has been in Woodbridge, New Jersey,
about a mile from the defendant's cemetery. Defendant Clover Leaf Park Cemetery Association is a memorial park cemetery organized in 1927 as a corporation not for pecuniary profit under "An act to authorize the incorporation of rural cemetery associations and regulate cemeteries." Rev. 1877, p. 100; N.J.S.A. 8:1-1 et seq. Cemeteries of the memorial park type seek to achieve the appearance of a park or a garden. In the pursuit of that objective, one means frequently adopted is the use of flat metal grave markers or plaques which are placed flush with the ground rather than monuments or headstones. Johnson v. Cedar Memorial Park Cemetery Ass'n, 233 Iowa 427, 9 N.W. 2 d 385 (Sup. Ct. 1943).
Defendant Association adopted certain rules and regulations concerning the operation of the park. Identification and monumentation of a grave are limited to a flush type bronze marker of a specified alloy content. The alloy is required to consist of:
Balance -- all other elements
The formula set out in the regulations was furnished by the manufacturers, Matthews & Company and the Gorham Company, which are the exclusive suppliers of the defendant. A display room is maintained in the Park where the Association exhibits and sells to lot owners three models of markers which may be had in various designs. Lot owners may supply their own plaques provided they meet the established specifications and subject to the regulation that they shall be installed by defendant. In such cases "[t]he cost of foundation, installation, replacement, maintenance, and continual care of the memorial shall be paid by each lot owner in accordance with the schedule of rates on file in the office of the cemetery, which schedule * * * [is] subject to change without notice." When the memorials
are sold by the Association, a single charge is made which includes installation and continual maintenance.
Plaintiff claims that in selling the markers and in reserving the exclusive right of installation, the Association is engaging in a business venture for profit for which it has no authority under its corporate charter, that it is competing unlawfully with private enterprise, that the rules and regulations pertaining to the sale and installation are invalid and that by means of unfair competitive practices it has successfully prevented lot owners and bereaved families from purchasing markers from plaintiff or others regularly engaged in the business. The trial court concluded that the price of the bronze memorials, which included installation and future maintenance, is reasonable and not excessive, that regulations prescribing the composition thereof and the method of installation are not arbitrary, and that the Association did not prevent lot owners from buying from outside sources markers which conformed to the regulation. However, he did direct that the plaintiff be permitted to install the markers under the supervision of defendant and subject to its regulations as to method and subject to a charge for such supervisory services as well as for future maintenance.
The record reveals that, with but one exception, all of the large number of markers placed on graves during the years of operation of the cemetery were sold and installed by the Association. The one exception was accomplished by the plaintiff, who, without authority, trespassed upon the park grounds in order to affix the plaque to the grave. In two instances when plaintiff made sales, defendant on receiving information to that effect furnished markers free of charge to the lot owners involved.
The Association established a Bronze Division which handled the disposal of markers. The Division is in charge of a salesman who devotes himself exclusively to its work and who receives a commission of 25% of the price for his efforts. Proof was offered to show that on the day before or on the day of the funeral a letter is sent to the family advising that a salesman would call upon them in connection
with memorializing the deceased. Four or five days after the interment, a brochure prepared by the manufacturers concerning the bronze tablets is sent to them by the Association. Then follows a second letter informing of an imminent visit by the salesman. This person makes the call and undertakes to consummate a contract for the sale and installation of the marker. According to his testimony, he tells the family that the purchase may be made from the Association or elsewhere, but if obtained from an outside source a charge will be made for installation, maintenance and perpetual care. There can be no doubt that the Association's intimate contact with the family of the deceased in connection with the burial gives it a decided advantage, competitively and psychologically, over other persons engaged in the business of selling memorials. Proof was adduced by plaintiff to indicate unfair practices and pressures to which lot owners were subjected in order to interfere with and prevent competition by outsiders. In view of the determination we have reached on the major issue, it is not necessary to set forth those facts in detail, nor to express any opinion with respect thereto.
The selling price of a typical marker in 1956 was $195. It included installation and future maintenance. (At the time of the hearing it had increased to $205.) Defendant's office manager broke down the figure as follows:
"1. Cost of marker $57.00
2. Salesman's commission ...