State ex rel. Fussell v. McLendon

• Decision Date: 12 March 1959
• Docket Number: No. 58-454,58-454
• Citation: 109 So.2d 783
• Parties: STATE of Florida ex rel. Grace H. FUSSELL, Appellant, v. R. C. McLENDON, as President of Dade Tire Company, and Dade Tire Company, a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 783

109 So.2d 783

STATE of Florida ex rel. Grace H. FUSSELL, Appellant, v. R. C. McLENDON, as President of Dade Tire Company, and Dade Tire Company, a Florida corporation, Appellees.

No. 58-454.

District Court of Appeal of Florida, Third District.

March 12, 1959.

George G. Graham, Miami, for appellant.

L. J. Cushman, Miami, for appellees.

CARROLL, CHAS., Chief Judge.

This is an appeal from an order quashing an alternative writ of mandamus, upon granting the respondents' motion to quash.

On the petition of the appellant, relatrix in the circuit court, an alternative writ was issued. The object of the writ was to compel the respondents to permit relatrix to examine the corporate books and records. ¹ The allegations of the petition, though not copied into the alternative writ or restated therein, were sufficiently made a part of the alternative writ by being incorporated by reference. See Glendinning v. Curry, 153 Fla. 398, 14 So.2d 794.

In her petition the relatrix recited that she was a stockholder, owning 20% of the corporation's shares; that she had asked to inspect the books of the corporation, advising respondents of her purposes, which she alleged were 'to ascertain the true value of the shares of stock owned by the said petitioner in the said Dade Tire Company as of September 10, 1952, and the present date; and to determine if there are funds available with which to pay dividends to the corporation's stockholders; and to determine generally whether or not the affairs of the corporation are being properly administered by the corporate officers in charge.' Certain affidavits were attached as exhibits to the petition, in support of its allegations. The petition then alleged the refusal of her request to inspect the records, and charged that the respondents' denial of her request was in violation of a duty to grant it.

Respondents moved to quash the alternative writ. ² The motion was granted; the alternative writ was quashed; and the petition dismissed.

The determinative question is whether the allegations of the petition, as incorporated in and made a part of the alternative writ, were sufficient under the established rule in mandamus actions that the alternative writ must allege facts essential to show the duty of respondent to perform the acts demanded, as well as the facts entitling a relator to the relief asked. Scott v. State ex rel. Grothe, 43 Fla. 396, 31 So. 244; Mixson v. First Nat. Bank, 102 Fla. 468, 136 So. 258; Arnold v. State ex rel. Mallison, 147 Fla. 324, 2 So.2d 874. We hold that the allegations were sufficient under that rule, and that it was error to quash the alternative writ.

As an alleged stockholder, relatrix was entitled to inspect the corporate records for proper purposes, and in a reasonable manner. Soreno Hotel Co. v. State ex rel. Otis Elevator Co., 107 Fla. 195, 144 So. 339; News-Journal Corporation v. State ex rel. Gore, 136 Fla. 620, 187 So. 271. See also Ballantine, Corporations, §§ 159, 160 (Rev.Ed.1946); 13 Am.Jur., Corporations, § 432 et seq.; Annotation, 15 A.L.R.2d 11.

In effect prior to its repeal in 1953 was a statute then designated as § 611.23, Fla.Stat.1951, F.S.A. That statute made provision for examination of the books and records of a corporation at a reasonable time and place, without having to resort to mandamus, by a stockholder or stockholders owning not less than one-tenth of the stock; or in case of a refusal by the corporation a mandamus order was obtainable thereunder without the need to allege that the inspection sought was being requested for a proper purpose, etc. See Soreno Hotel Co. v. State ex rel. Otis Elevator Co., supra, 107 Fla. 195, 144 So. 339, 341.

Antedating that statute there was a rule of the common law allowing inspection of a corporation's books for proper purposes; and the statute referred to did not abrogate the common law right to inspection but rather enlarged it by removing some of the common law limitations. The repeal of the statute left the common law rule available. See Soreno Hotel Co. v. State ex rel. Otis Elevator Co., supra, 107 Fla. 195, 144 So. 339. A statute currently in effect, § 608.39, Fla.Stat., F.S.A., makes express provision for inspection by certain stockholders of the corporation's stock book, which is required to contain the names and addresses of the stockholders and show their stock holdings. That statute is limited in scope, does not purport to cover the range of book inspection as recognized at common law, and contains a provision (§ 608.39(4), Fla.Stat., F.S.A.) recognizing the latter saying: 'Nothing in this section shall impair the power of the courts to compel the production for examination of the books of a corporation.'

With regard to the nature and extent of the common law right to inspection, in Soreno Hotel Co. v. State ex rel. Otis Elevator Co., supra, 107 Fla. 195, 144 So. 339, 340, it was said:

'In the Guthrie case, supra [Guthrie v. Harkness, 199 U.S. 148, 26 S.Ct. 4, 5, 50 L.Ed. 130], it was held that there can be no question that the decided weight of...