Kimball v. Dern

• Decision Date: 06 May 1911
• Docket Number: 2059
• Citation: 39 Utah 181,116 P. 28
• Court: Utah Supreme Court
• Parties: KIMBALL v. DERN, et al

116 P. 28

39 Utah 181

KIMBALL v. DERN, et al

No. 2059

Supreme Court of Utah

May 6, 1911

APPEAL from District Court, Third District; Hon. Geo. G. Armstrong Judge.

Action by George S. Kimball against John Dern and others.

Judgment for plaintiff. Defendants appeal.

AFFIRMED.

H. C Edwards for appellants.

J. D Skeen for respondent.

McCARTY J. STRAUP, J., LEWIS, District Judge, Concurring.

OPINION

McCARTY, J.

Plaintiff, George S. Kimball, applied to and obtained from the District Court of Salt Lake County a writ of mandate requiring the defendants to permit him, as a stockholder of the Continental Life Insurance Company, a corporation organized and existing and doing business under the laws of the state of Utah, to examine the books, records, and papers of the corporation. Plaintiff, after setting forth in his affidavit the corporate existence of the company, alleges that he is "an actual and bona fide stockholder in said corporation;" that each of the defendants is a director, and that defendant W. v. Rice is secretary and W. H. Cunningham general manager of the corporation; "that the said defendants have in their possession and under their control in Salt Lake County, State of Utah, all of the books, records, contracts, notes, and documents pertaining to and showing the financial condition of said corporation and the general methods of conducting its business, . . . that defendants refused and still refuse to permit affiant to make such examination and inspection." The defendants in their answer admit the corporate existence of the company; that they are directors of the company; that W. v. Rice is secretary; and that W. H. Cunningham is assistant secretary and general manager of the corporation. Defendants also admit that plaintiff "is an actual and bona fide stockholder of record of said corporation;" and that "plaintiff made demand upon each of said defendants that he be permitted to examine and inspect all the books, records, files, contracts, notes, stocks, bonds, mortgages, and securities held and owned by said corporation which were in the possession of defendants or either of them and in such manner as not to interfere with the conducting of the business of said corporation, and admit that all of said defendants (except H. C. Edwards who was not in a position to either grant or refuse plaintiff's request) stated to said plaintiff that he would not be permitted to make such examination and inspection." They admit that defendant W. H. Cunningham, assistant secretary and general manager of the corporation, has charge of all the books, records, files, contracts, etc., called for by plaintiff. As an affirmative defense defendants allege that plaintiff has been involved in litigation with the corporation "for many months last past, which said litigation is still pending and undisposed of, and the said plaintiff bears a great deal of malice and ill will towards . . . said company and its various officers and directors, including these defendants . . . ; that plaintiff intends to bring (other) suits and legal proceedings against said . . . company and its officers and directors, and in other ways endeavor to give the business affairs and character of said company adverse notoriety from malicious and improper motives." It is also alleged that plaintiff is a stockholder and officer in the West Coast Life Insurance Company which is engaged in "writing life insurance policies and contracts of the same nature and character as those written by the Continental Life Insurance & Investment Company in the same states where said latter company is doing business," and that it is to the interest of plaintiff "to cause as many policies issued by said Continental Life Insurance Company to lapse as possible to the end in view that he may write life insurance policies for such parties in said West Coast Life Insurance Company." Defendants further allege that W. H. Cunningham, assistant secretary and manager of the corporation, furnished to plaintiff for his inspection "all books, instruments, records, files, and papers of every nature and description," belonging to the corporation called for by plaintiff except such books and records as disclose the names and addresses of the policy holders of the company. Defendants further allege, on information and belief, that plaintiff's "sole and only purpose in probing further into the books and records of the corporation is to further his purpose and intention of instituting and prosecuting legal proceedings independent of the merit with the said end in view of injuring said corporation by giving it adverse notoriety."

On motion of plaintiff the court rendered judgment in his favor upon the pleadings. The judgment, so far as material here, recites that "defendants and each of them be and they are hereby required to permit plaintiff, his attorney and stenographer, to make an examination and inspection of all the books, records, contracts, notes, and documents pertaining to the business of said Continental Life Insurance & Investment Company, a corporation; . . . that such examination be permitted between the hours of nine a. m. and six p. m. of each and every day, excepting only Sundays and holidays; . . . and they are hereby required to permit plaintiff, his attorney and stenographer to make notes and take copies of all said books, records, contracts, notes and documents." The defendants, except H. C. Edwards, appeal.

Under the common law a stockholder has the right to inspect the books and records of the corporation at all seasonable times and for a proper purpose, and ordinarily mandamus will lie to enforce the right whenever an inspection by the stockholder is necessary to protect the interests of the corporation or his own interests. But this common-law rule is not so absolute that the writ will issue without regard to the facts and circumstances. Under such rule the motives of the stockholder in seeking an inspection may be made a matter of judicial inquiry, and the great weight of authority seems to be that if they are found to be "improper," and that he, the petitioner, desires to injure the corporation, the right will be denied him. Under this rule the parties in control of the corporation have the power to so harass and delay a minority stockholder to such extent as to practically deprive him of the right; and that, too, regardless of his motive and purpose in seeking an inspection. This phase of the question we shall again refer to further along in the opinion. The restricted right of inspection under the common law has been modified in England and in many of the states of the Union by statute. Decisions from nearly all of the states and the leading English cases are collected and reviewed in an instructive note on the questions here involved found in 45 L.R.A. 449. We also invite attention to an extensive note in 10 Am. and Eng. Ann. Cas. 990. In this state the right of a bona fide stockholder of record to inspect the books and records of a corporation is fixed and regulated by statute.

The decisive question presented by this appeal is, Has a party who is a bona fide stockholder of record of a corporation the right under our statute to inspect the books of such corporation regardless of his motive or purpose in making the inspection? Questions involving the stockholders' right of inspection have been presented to and determined by this court in practically all phases except the one here presented. (Harkness v. Guthrie, 27 Utah 248, 75 P. 624, 107 Am. St. Rep. 664; Clawson v. Clayton, 33 Utah 266, 93 P. 729; State v. Silver King Con. M. Co., 37 Utah 62, 106 P. 520.) While the precise question here involved was not directly passed upon in either of the cases mentioned, yet we think the construction given the statute under consideration in those cases is in effect a recognition of the doctrine contended for by respondent, namely, that an actual, bona fide, stockholder of record has the right at all seasonable hours to inspect the books of the corporation regardless of his motive in so doing. The provisions of our statute (Comp. Laws 1907) relating to private corporations, so far as material to the determination of the question here involved are as follows:

Sec. 328. It shall be the duty of the corporation to keep true and correct books of its proceedings and business.

"Sec. 329. The books of every corporation organized under the laws of this state must be so kept as to show the original stock holders, their interests, the amount paid on their shares, and all transfers thereof; all books of any corporation shall, at all reasonable hours, be subject to the inspection of any bona fide stockholder of record."

Section 4415 of the Penal Code (Comp. Laws 1907) provides:

"Every officer or agent of any corporation, having or keeping an office within this state, who has in his custody or control any book, paper, or document of such corporation, and who refuses to give a stockholder or member of such corporation, lawfully demanding, during office hours, to inspect or take a copy of the same, or any part thereof, a reasonable opportunity to do so, is guilty of a misdemeanor." (Italics ours.)

We think the right thus given to the stockholder of a corporation to inspect the corporate books is an absolute and not merely a qualified or conditional right. The purpose of the statute, no doubt, is to give the stockholder who may own but a few shares of stock the same right of access to the books of the corporation as is given to the large investor who controls the majority of the stock, and is thereby enabled to appoint officers and agents of his own selection to keep the books and manage the business affairs of the company. In other words, we think the purpose of the...