Opinion
October 6, 1958 —
November 5, 1958.
APPEAL from an order of the circuit court for Jefferson county: HARRY S. Fox, Circuit Judge. Reversed.
For the appellants there was a brief by Clifford Fitzpatrick, attorneys, and William B. Clifford and James A. Fitzpatrick of counsel, all of Watertown, and oral argument by James A. Fitzpatrick.
For the respondent the cause was submitted on the brief of Smith, Rogers Smith of Fort Atkinson.
Action to enjoin the defendant from barring the plaintiffs from entering the cemetery grounds and using the cemetery driveways and other roadways for placing burial vaults manufactured by them in graves pursuant to contracts duly entered into and from enforcing a rule of the defendant assessing and collecting a $20 service charge against the plaintiffs in connection with their delivery and servicing of the placement of burial vaults in defendant's cemetery.
The complaint alleges in brief that the plaintiffs are manufacturers of a patented burial vault; that they appoint undertakers to sell said vaults, which must be delivered and installed with special equipment; that on April 30, 1957, the defendant informed the plaintiffs that effective May 1, 1957, a minimum service charge of $20 payable upon entering the cemetery would be assessed directly against all concrete burial-vault manufacturers for the assistance of cemetery employees; that the defendant reserves unto itself the exclusive right to furnish its own lowering devices for burial vaults; that on or about the same time the defendant engaged in the business of selling for a profit burial vaults manufactured by another company and that said fee is not assessed against the manufacturer of the vaults sold by it; that the plaintiffs do not require the assistance of defendant's employees in delivering and placing their burial vaults; that the rule is unreasonable; that it prevents competition in the sale of burial vaults; that the rule discriminates unduly against other vault manufacturers, forms a basis of unfair competition between such manufacturers, and tends to monopolize for defendant's own profit all of the burial-vault business in defendant's cemetery.
On February 6, 1958, an order was entered sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The plaintiffs appealed from said order.
Neither party could cite any controlling Wisconsin case dealing with the subject involved in this controversy. Several cases from other jurisdictions were cited to the trial court and to us, but upon a review of those cases we find none particularly applicable to this situation.
It is clear that cemetery associations have the right to make rules, but there are certain restrictions upon this right: First, the rules must be reasonable; second, they must be made in good faith; and third, must apply to all persons uniformly.
Whether a rule is reasonable or unreasonable depends upon all of the facts and circumstances in each case. The complaint, liberally construed, raises an issue that the rule complained of is unreasonable under the particular allegations set forth therein. The complaint further challenges the rule on the ground that it was not made in good faith in that it was made to stifle competition and to give the defendant a monopoly on the burial-vault business within its cemetery. The allegations of the complaint further establish that the rule is not to be uniformly applied in that the charge is not assessed to the manufacturer of vaults sold by the defendant.
The record, so far, does not establish whether the defendant was incorporated under the provisions of ch. 157, Stats., or whether it was incorporated as a private corporation organized for profit. Probably it would make no difference. Even if the defendant was organized for profit, the public has an interest in the burial of the dead. The right of lot owners to select a particular type of burial vault was also raised by the complaint.
The trial court assumed, although it has not been established by proof, that the transportation of vaults manufactured by the plaintiffs over the cemetery roads, pathways, and sodded areas would naturally involve a certain amount of wear and tear upon the premises. The same may be assumed as to the vaults sold by the cemetery association. Certainly there is nothing in the record so far to indicate that more wear and tear would result thereto because used by the plaintiffs or their agents than would result if the same transportation was done by the defendant. The complaint recites that the charge authorized is for the assistance of cemetery employees. It does not appear in the record that it is compensation for wear and tear.
We conclude that the issues presented by the complaint can be properly resolved only by means of a trial. The demurrer therefore should have been overruled.
By the Court. — Order reversed, and cause remanded for further proceedings.
MARTIN, C.J., and BROWN, J., took no part.