Tribune Co. v. Approved Personnel, Inc.

• Decision Date: 22 October 1959
• Docket Number: No. B-225,B-225
• Citation: 115 So.2d 170
• Court: Florida District Court of Appeals
• Parties: TRIBUNE COMPANY, a Florida corporation, Appellant, v. APPROVED PERSONNEL, INC., Approved Personnel, Inc., dba Life Employment, and Approved Personnel, Inc., dba Bay Employment, Appellees.

Page 170

115 So.2d 170

TRIBUNE COMPANY, a Florida corporation, Appellant, v. APPROVED PERSONNEL, INC., Approved Personnel, Inc., dba Life Employment, and Approved Personnel, Inc., dba Bay Employment, Appellees.

No. B-225.

District Court of Appeal of Florida, First District.

Oct. 22, 1959.

Rehearing Denied Nov. 16, 1959.

Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

William C. Harris and Turnbull & Hill, Tallahassee, for appellees.

WIGGINGTON, Chief Judge.

Approved Personnel, Inc., is a Florida corporation whose principal place of business is located in Dade County. A part of its corporate activity includes the operation of several employment agencies in Hillsborough County.

The Tribune Company is likewise a Florida corporation engaged in publishing a daily newspaper and whose principal place of business is located in Hillsborough County.

Approved brought suit against Tribune in the Circuit Court of Leon County, in which is situated the capital of Florida. Its complaint seeks declaratory and injunctive relief, together with damages for breach of contract.

To the complaint Tribune filed a motion to dismiss on the ground of improper venue. The motion is supported by an affidavit of the president in which it is attested that Tribune's principal office and place of business is in Hillsborough County where it composes, prints, publishes and issues its newspaper; that the cause of action alleged in the complaint, if any, accrued in Hillsborough County; that Tribune does not have or keep an office for the transaction of its customary business in Leon County, nor is any property involved in the suit located there. This affidavit further recites that Tribune does employ in Leon County a full-time reporter who gathers news and transmits news articles directly to Tribune's Hillsborough County plant for publication; that this reporter carries on the work of Tribune from a location in the capitol building in office space furnished gratis by the State and occupied by all accredited news gathering agencies, such as wire service and newspaper staff representatives; that during sessions of the state legislature and on other special occasions Tribune employs in Leon County other special machine operators and news reporters for the purpose of assisting in gathering and disseminating news articles.

The chancellor denied the motion to dismiss upon a finding from the facts stated in the supporting affidavit that Tribune does have and usually keeps an office in Leon County for the transaction of its customary business in that it maintains there a fulltime employee at a fixed location in the capitol building for the purpose of news gathering, which activity was found to be a substantial, consistent and regular part of its business. It is this order which Tribune seeks to have reviewed by interlocutory appeal.

Tribune earnestly contends that the chancellor erred in concluding from the evidence before him that Tribune has and usually keeps an office for the transaction of its customary business in Leon County. It is undisputed that Tribune neither owns nor rents office space for its capital reporters. The State furnishes, free of charge, facilities for the use of Tribune in common with other news agencies, wire services and reporters or staff representatives of other newspapers. However, it is conceded that the fact Tribune pays no rent for the office space, utilities and other facilities necessary to the conduct of its business is not determinative of the issue. The prima question is whether it regularly transacts any substantial part of its customary business from an office within Leon County.

Approved asserts by its brief filed in this court that the affidavit of Tribune's president, which constitutes the sole proof submitted by it in support of its motion, was not served prior to the hearing before the chancellor. Approved states that for this reason it has no opportunity to prepare and submit counteraffidavits in opposition to the motion. It is assumed that since the ruling was in Approved's favor no motion for leave to file counteraffidavits was made. Approved gives assurance, however, that if it had been afforded the opportunity, it would have produced proof that Tribune carries a listing in the local telephone directory, giving the number of its business telephone located at its office in the capitol press room; that Tribune's capital employee is a full-time permanent resident of Leon County; that in the office space occupied by Tribune in the capitol press room is a desk, typewriter, telephone, teletype machine and other office equipment. Although the foregoing proffer is one of which the court cannot take judicial notice, it would have been a proper subject of proof in opposition to the motion under consideration.

Statutes prescribing venue in actions by or against corporations, being remedial in their nature, should not receive a restricted or artificial construction. ¹ It is of the very nature of venue that plaintiff selects it initially, but need not plead or prove that his selection has been proper and the burden of pleading and proving that venue is improper, if such is the fact, is upon the defendant. ²

F.S. Section 46.04, F.S.A., prescribes the proper venue for suits against domestic corporations:

'Suits against domestic corporations shall be commenced only in the county (or justice's district) where such corporation shall have or usually keep an office for the transaction of its customary business, or where the cause of action accrued, or where the property in litigation is located; and in the case of companies incorporated in other states or countries, and doing business in this state, suits shall be commenced in a county or justice's district wherein such company may have an agent or other representative, or where the cause of action accrued, or where the property in litigation is situated.'

Insofar as is applicable to the case now before us, venue depends upon the establishment of two concurring factors. It must first be shown that the corporation has or usually keeps an office within the county, and secondly, the office is used for the transaction of the corporation's customary business.

The crux of Tribune's argument appears to be that inasmuch as the space provided for its use is not partitioned off from other similar spaces provided for other news agencies, that space does not constitute an office within the contemplation of the statute. With this contention we cannot agree. To strain the definition of an 'office for the transaction of business' to embrace only separate rooms or buildings would do violence to the fair meaning and intent of the statute. Space in a building which is furnished with the type of office furniture and equipment normally used in the transaction of the occupant's customary business has been held to satisfy the definition of 'office' as used in statutes dealing with service of process. ³ The same is equally applicable to statutes dealing with the matter of venue. It has been early recognized that the expression 'an office for the regular transaction of business' does not necessarily mean one who carries on some business at some particular place of which he is a proprietor. The place where one is regularly employed to render services, where he attends every business day, is a place or office for the regular transaction of business, regardless of the character of the business which one may transact at that place. ⁴

For a corporation to transact business in a county within the meaning of such a statute, the business transacted by it in the county must be a part of its usual or ordinary business and must be continuous in the sense of being distinguishable from mere casual, occasional or isolated transaction. ⁵

In Okeechobee Company v. Rambo ⁶ suit was commenced in Dade County, whereas the cause of action sued upon accrued and the defendant's principal place of business was located in Okeechobee County. It was shown by the evidence that defendant never had or kept an office for the transaction of its customary business in Dade County. An office in the latter county had previously been opened and temporarily maintained by defendant's agents for their own convenience, but had been closed before suit was commenced. In reversing the decree of the trial court our Supreme Court held that 'an office for the transaction of its customary business' as applied to a domestic corporation must have reference to its home office, permanent office, or office through which its principal business is transacted. It would not apply to a temporary office conducted by an agent for his convenience which is subject to abandonment at any time.

A domestic corporation may be sued in any county where it maintains a branch office for the transaction of any substantial part of its customary business. ⁷ It cannot be reasonably contended that the reporting of news events which daily emanate from a state capital does not constitute a part of the customary business of every major newspaper. If this were not true such newspapers and the wire services would not maintain full-time staff representatives in the capitol for that purpose.

The transaction of its customary business by a domestic corporation from a fixed location within a given county to such an extent that it is actually present there and has such a responsible agent as would presumptively...