Charles J. Mcclennon and Lillie M. Mcclennon, Copartners, trading as Empire Monument Company

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IN THE MA'ITER OF CHARLES J. :McCLENNON AND LILLIE M. McCLENNON, COPARTNERS, TRADING AS EMPIRE MONUMENT COMPANY COMPLAINT, FINDINGS, AND ORDER IN REGARD TO THE ALLEGED VIOLATION OF SEC, 5 OF AN ACT OF CONGRESS APPROVED SEPT. 26, 1914 Docket SfiS9. Complaint, Nov. 2, 1939-Der::ision, May 8, 1911 Where an individual engaged. in the manufacture and competitive interstate sale and distribution of tombstones, monuments, and footstones, designated as ".M:arble Durastone" and "Granite Durastone" and made, respectively, by mixing cement with marble aggregate or with granite dust and copper slag; in advertising her said products in periodicals and in catalogs, circulars, price lists, and other advertising material- (a) Represented that they would not fade, crumble, or deteriorate from natural causes, were impervious to the effects of heat, cold, dampness, or dryness, and would retain their original beauty throughout the years; Facts being that, as shown by tests, the average compressive :>Lre:ugth of her said products was relatively much less than the minimum required for acceptability of cast stone under Federal specifications; average absorption of water by her said products was likewise in excess of such minimum requirements; freezing and thawing tests also indicated that products in question were of relatively poor quality and proved aforesaid claims to be without foundation; under exposure to natural weather conditions such products would show deterioration in from 10 to 20 years, and her "Granite Durastone" was not genuine granite aggregate in that the mixture included material other than natural granite and necessary binder or cement; (b) Represented that tombstones, monuments, and footstones were being offered at special sale prices, through such statements as "Tombstone Sale," "Special Sale Prices," "Take Advantage of This Great Sale and Act Promptly Now. You will save from one-third to ont.'-half the usual price. Don't wait. Beat the price rise"; and (c) Represented that footstones would be given fr~e with purchases of tomb· stones or monuments;

Facts being that the prices at which her said products were offered for sale and sold by her were her usual and customary prices, footstones were ·not given free as above set forth, but the cost thereof was includl~d in the price charged for the tombstone or monument;

With effect of misleading and deceiving a substantial part of the purchasing public Into an erroneous and mistaken belief as to the durability, quality, and price of her said products, whereby they bought a substantial portion thereof, and trade was unfairly diverted to her from competitors: Hew, That such acts and practices, under the circumstances set forth, were all to the pt·ejudice and injury of the public and competitors, and constl· tuted unfair methods of competition in commerce and unfair and deceptive acts and practices therein.

Complaint :r.lli'.T.C. Before llb.ll!iles J. Furnas, trial examiner. Mr. B. G. Wilson for the Commission.

Sutherland, Tuttle & Bren1Wn, of Atlanta, Ga., for Lillie ~I. McClennon.

Col\IPLAINT Pursuant to the provisions of the Federal Trade Commission Act, and by virtue of the authority vested in it by said act, the Federal Trade Commission, having reason to believe that Charles J. McClennon and Lillie l\I. McClennon, copartners, trading as Empire Monu· ment Co., hereinafter referred to as respondents, have violated the provisions of said act, and it appearing to the Commission that a proceeding by it in respect thereof would be in the public interest, hereby issues its complaint, stating its charges in that respect as follows:

PARAGRAPH 1. R!'spondents Charles J. McClennon ~.ncl Lillie l\1. McClennon are copartners, trading as Empire Monument Co., with their office and principal place of business at 108 East Rock Springs Road NE., Atlanta, Ga. Respondents are now, and for some time last past have been, engaged in the business of manufacturing and selling imitation marble and granite tombstones and monuments in com· merce between and among the various States of the United States and the District of Columbia.

R~spondents cause their said products, when sold, to be shipped from their place Qf business in the State of Georgia to purchasers thereof located in various other States of the United States and in the District of Columbia. Respondents maintain, and at all times mentioned herein have maintained, a course of trade in said ~ombstones and monuments in commerce between and among the various States of the United States and in the District of Columbia. PAn. 2. In the course and conduct of their said business, respondents are now, and for more than 1 year last past have been, in substantial competition with other partnerships, and with individuals, firms, and corporations enga~ed in the sale and distribr.tion of tombstones and monunwnts in commerce between and among the various States of the United States and in the District of Columbia. PAR. 3. To induce the purchase of their said product, the ret--pondents have disseminated and are now disseminating false and misleading statements and representations with respect to said proll· uets and the purchase price thereof. Such statements and representations are inserted in periodicals having a general circulation and in catalogs, circulars, price lists, and other advertising material EMPIRE MONUMENT CO. 1433 1431 Complaint which are distributed among prospective purchasers. Among and typical of such false and misleading representations are the following:

"Marble Durastone" and "Granite Durastone." The great <lnrnbiltty nnd lasting qnnlities of onr beautiful geuniue mnrble Hnd granite aggregate monuments.

Our guarantee! they will neither fade, crum!Jle JJUl' deteriorate in any way from natural causes but will retain their original beauty tht·ongbout the year!;!. Impervious to bad effects from Pitller great heat or colt!, dampness 0r dryr.ess; therefore able to withstand extr£'me climates of all kinds. A lasting tribute of love-will return its beauty and carry "its message of ~'l'ruernbrance to coming generations.

Tombstone sale.

Special sale prices.

Take advautage of this great sale and act promptly now. You will save from oue-third to one-half the mmal prices-Don't wait! Beat the price rbe. Made under a formula trsed by our company fot· many, many years and has 8food the test of engineers and tlnw.

Footstone free.

PAn. 4. By the use of the foregoing r£>presentations, together with other representations similar thereto not specifically set out herein, the respondents represent that their said products are genuine natural marble and granite tombstones and monuments; that such stones Will not fade, crumble, or deteriorate in any way from natural causes but will retain their original condition through many years; that they are impervious to both extreme heat and extreme cold and to dampness and dryness; that the prices at which such stones are ad- Vertised are much Jess than the customary and usual prices at whif'h such stones are sold by respond£>nt~; that such stones have withstood tests made by engineers; that a footstone is given free by respondents With every order for a tombstone or monument. PAn. 5. The foregoing representations are false, mhilending, and untrue. In truth and in fact respondents' tombstones and monu- Blents are not genuine marble or granite tombstones and monuments, hut are maufactured by respondents from cement and other ingredients and are known as cast stone. or artificial stone. Such stones will not retain their original condition through the years but will fade, crack, and deteriorate. They are not imp£>rvious to heat or cold or to dampness or dryness, but will crack, crumble, and deteriorate under ordinary w£>other conditions. The prices nt which respondents' products a!·e :uhertised for sale are not in fact retlnct'tl or "sale" prices and do not repres£>nt any saving to the purchaser, Lut are the prices at which such products are usually and customarily sold hy respondl'nts. Snrh stones have not bt>Pn tested by Findings 32 F. T. C. engineers. The footstone represented by respondents as being nwarded free with each order is not in fact free, but the price thereof is included in the price paid for the tombstone or memorial. PAR. 6. Tombstones and monuments carved from natural marble or granite have established among the members of the purchasing public a reputation for their beauty, durability, and other preeminent qualities, and as a result of such reputation the purchasing public has a decided preference for such products above tombstones and memorials which are cast stone or artificial stone. PAR. 7. There are among the competitors of respondents, as mentioned in paragraph 2 hereof, many who do not misrepresent the composition or qualities of their products or the prices at which their products are advertised i:md sold.

PAR. 8. The use by the respondents of the false and misleading statements and representations referred to herein has had and now has the tendency and capacity to, and does, mislead and deceive a !-iUbstantial portion of the purchasing public into the erroneous and mistaken belie~ that such statements and representations are true, and because of such erroneous and mistaken belief a substantial portion of the purchasing public is induced to and does purchase respondents' said products. As a result thereof substantial injury has been done and is being done by respondents to competition in commerce among and between the various States of the United States and in the District of Columbia.

PAR. 9. The aforesaid acts and practices of the respondents as herein set forth are all to the prejudice and injury of the publl~ sl).d of respondents' competitors, and constitute unfair methods of competition in commerce and unfair and deceptive acts and practices in commerce within the intent and meaning of the Federal Trade Commission Act.

REPORT, FINDINGS AS '1:0 THE FACTS, AND ORDER Pursuant to the provisions of the Federal Trade Commission Act, the Federal Trade Commission on November 2, 1939, issued and subsequently served its complaint in this proceeding upon respondent Lillie M. McClennon, an individual trading as Empire Monument Co., charging her with the use of unfair methods of competition in commerce and unfair and deceptive acts and practices in commerce in violation of the provisions of said act. After the issuance of said complaint and the filing of respondent's answer thereto, testimony and other evidence in support of the allegations of said complaint EMPIRE MONUMENT CO. 1435 1431 Findings Were introduced by attorneys for the Commission and in opposition to the allegations of the complaint by attorneys for the respondent before Miles J. Furnas, an examiner of the Commission theretofore duly designated by it, and said testimony and other evidence were duly recorded and filed in the office of the Commission. Thereafter the proceeding regularly came on for final hearing before the Commission on said complaint, the answer thereto, testimony and other evidence, report of the trial examiner, and briefs in support of the complaint and in opposition thereto (oral argument not having been requested); and the Commission, having duly considered the matter and being now fully advised in the premises, finds that this proceeding is in the interest of the public and makes this its findings as to the facts and its conclusion drawn therefrom. FINDINGS AS TO THE FACTS PARAGRAPH 1. The business carried on under the trade name, Empire Monument Co., a.t one time was a partnership composed of Mrs. Lillie M. McClennon and her then husband, Charles J. McClennon. This partnership existed for a few months and was dissolved in 1937 when Mrs. Lillie M . .McClennon separated from her husband, Charles J. McClennon, and acquired his interest in the partnership. Since such separation Charles J. McClennon has had no interest in or control over said business. Mrs. Lillie M. McClennon subsequently was divorced and remarried and is now Mrs. Lillie 1\f. Sentell, and is an individual trading as the Empire Monument Co. Respondent Lillie M. Sentell is now, and at all times named in the complaint has been, engaged in the business of tnanufacturing, offering for sale, and selling tombstones, monuments, and footstones. Respondent has caused said products, when sold, to be shipped from her place of business in the State of Georgia to purchasers located in various other States of the United States and in the District of Columbia. Respondent maintains, and at all times mentioned in the complaint has maintained, a course of trade in said tombstones, monuments, and footstones in commerce between and among the various States of the United States and in the District of Columbia. PAR. 2. In the course and conduct of said business respondent is now, and during all times mentioned in the complaint has been, in RUbstantial competition with individuals, firms, and corporations en- ~aged in the sale and distribution of tombstones, monuments, and footstonl's in commerce among and between the various States of the Dnit.,d States and in the District of Columbia. Findings 321<'. T.C. PAR. 3. The tombstones, monuments, and footstones manufactured and sold by respondent are described and designated as "Marble Durastone" and as "Granite Durastone." Those designated as "1\Iarble Durastone" are manufactured by mixing approximately one part of cement with three parts of marble aggregate, moistening this mixture and compacting it in a container or mold. Thereafter the socalled cast stone is removed from the molJ and kept in a moist condition for approximately four weeks, or until the mixture has cured or hardened. A similar process is usPcl to produce the tombstones, monuments, and footstones designated as "Granite Durastone," except that these are composed of a mixture of approximately one part cement and three parts of granite dust und copper slag. PAR. 4. In order to induce the purchase of said products the respondent causes and has caused advertisements to be inserted in periodicals which circulate in many States and has distributed catalogs, circulars, price lists, and other advertising material among customers and prospective customers located in the several States. Among the representations con.tained in said aclvertisPnwnts are the following: "l\Iarble Durn,.;tone" and "Granite Dnra;;tone." The great dm·ability and lasting qualities of our beautiful genuine marble and granite nggregate monuments.

Our guarantl'e! Tllf'y will neitlwr fadP, crumble nor dt>teriornte in any wny fnnn natural can~Ps but will retaiu thdr original lJPanty throughout the years. Impprvious to bad effects from either great heat or ('Old, dampuess or dryne~s; therefore able to withstand extreme dimates of all kinds. A lasting tribute of loYe-will retain it~'< lwnnty nnd enrry its lll<'f'S:Igf' of remembran•·e to coming generations.

Tombstone sale.

Special sale prices.

Take ad\'antnge of this great sale anu act promptly now. You will save from one-third to one-half the wmal pric(•s-Don't wait! B~·at the price rise. 1\Iade unfl<'r a formula n~Pd by onr c·omJiany for many, many years and has stood the te:<t of engine<'frs n rul time. Footstone ft·ee.

PAR. 5. Specimen.., of respondent's "l\Iarblc DuratOtone" and ''Granite Durastone" were submitted to and tested by the National DnrPau of Standards of the United States Department of Commerce to determine their strength and durability. The tests con<lneted by said Bureau showed that the average compressive strength of t three spt-cimens of respondPnt's "l\IarLie Durastone" was 3,6-10 pounds per square inch, and the average of three samples of respondent's ·'Granite Dumstone'' was 3,710 pounds per square inch. These control't with a minimum compressive strength of 5,000 pomHls p<>r sqwu·p inch required for EMPIRE MONUMENT CO. 1437 1431 Findings acceptability of cast stone under Federal specifications. The average absorption of water by respondent's products was also in excess of the minimum requirements of the specifications mentioned. The failure of respondent's cast stone products to meet such minimum requirements demonstrated that these products were of relatively poor quality. Three specimens of each of respondent's products were also tested by the said Bureau by alternate freezing and thawing, and under this test pitting of some specimens became apparent after 40 cycles, one specimen split into two parts at 125 cycles, and crumbling commenced at 150 cycles.

There is no foundation in fact for respondent's representations that such products will not fade, crumble, or deteriorate in any way from natural causes but will retain their original beauty throughout the years; that they are impervious to bad effects from either heat or cold, dampness or dryness; or that they will retain their beauty for coming generations. Exposure of these products to natural weather conditions would result in their showing deterioration in from 10 to 20 years.

Respondent's representations that the product designated as "granite Durastone" is a genuine granite aggregate are false in that the mixture from which such products are, and have been, made includes materials other than particles or fragments of natural granite and the necessary binder or cement.

Respondent's representations that tombstones, monuments, and foot· stones were being offered at special sale prices are not true. The prices at which such products were offered for sale and sold by respondent were, and are, the usual and customary prices ch~rged by respondent for such products.

Respondent's representation th-at footstones will be given free with purchases of tombstones or monuments is not a fact in that the cost of the footstone is included in the price charged for the tombstone or monument.

PAR. 6. The use by respondent of the statements and representations above set forth has had, and now has, the tendency and capacity to, and does, mislead and deceive a substantial part of the purchasing public into an erroneous and mistaken belief as to the durability, qualities, and prices of such products. And, furtlwr, as a result of this erroneous and mistaken belief members of the purchasing public have bought a substantial portion of respondent's products, and trade has been unfairly diverted to respondent from her competitors. 32260am--41--VOL,32----91 Order 32F,T.O CONCLUSION The aforesaid acts and practices of the respondent as herein found are all to the prejudice and injury of the public and of respondent's competitors and constitute unfair methods of competition in commerce and unfair and deceptive acts and practices jn commerce within the intent and meaning of the Federal Trade Commission Act. ORDER TO CEASE AND DESIST This proceeding having been heard by the Federal Trade Commission upon the complaint of the Commission, the answer of the respondent, testimony and other evidence in support of the allegations of said complaint and in opposition thereto taken before an examiner of the Commission theretofore duly designated by it, report of the trial examiner, briefs in support of the complaint and in opposition thereto (oral argument not having been requested); and the Commission having made its findings as to the facts and its conclusion that respondent has violated the provisions of the Federaf Trade Commission Act;

It is ordered, That respondent Lillie :M. Sentell (formerly Lillie l\f. McClennon), an individual, trading as Empire :Monument Co., or trading under any other name or names, her representatives, agents, and employees, directly or through any corporate or other device, in connection with the offering for sale, sale, or distribution of cast stone tombstones, monuments, footstones, or other grave markers in commerce as "commerce" is defined in the Federal Trade Commission Act, do forthwith cease and desist from directly or by implication:

1. Representing that such products will not fade, crumble, or deteriorate from natural causes; or are impervious to the effects of heat, cold, dampness, or dryness; or will retain their original beauty throughout the years. · 2. Misrepresenting in any manner or by any means the durability of such products or their resistance to the effects of exposure to natural weather conditions.

3. Representing as "free," either by the use of the word stated or any other vrord or term of similar import or meaning, any article the cost of which is included in the purchase price of other merchandise in connection with which such article is offered. 4. Representing that the usual and customary prices at which respondent offers to sell or sells such products are "sale" or "special EMPIRE MONUMENT CO. 1439 1431 Order sale," or other special or reduced prices, either by the use of the terms stated or any other term or terms of similar import or meaning.

It is furth-er m·dered, That respondent shall, within 60 days after the service upon her of this order, file with the Commission a report in writing setting forth in detail the manner and form in which she has complied with this order.

It is further ordered, That the complaint be, and the same is, l1ereby dismissed as to respondent Charles J. :McClennon. Syllabus 32F.T.C.