Kinard v. Ward

California Court of Appeal Feb 4, 1913 No. Civ. No. 1121.Published

Before: Murphey

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Holding. A stockholder is entitled to recover the statutory penalty of one thousand dollars from a corporation president who refuses to issue an order allowing the stockholder to examine the corporation's mining property. The court held that the application for such an order need not strictly mirror the statutory language regarding the title of the person in charge, nor must it follow a specific written form.

Issues

Whether a complaint seeking a statutory penalty for a mining corporation president's refusal to grant a mine inspection is sufficient without an allegation of specific damages.
Whether a stockholder's demand for an inspection order is fatally defective for using the phrase 'those in charge' instead of 'superintendent.'
Whether the application for a mine inspection order must adhere to a specific written form or standard of sufficiency.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The failure and refusal of the defendant to comply with the statutory requirements above set out is aptly pleaded. The prayer asks for the one thousand dollars’ penalty named in the statute. This is manifestly sufficient.”

“To sustain this extremely technical contention would be to make the statute a plaything in the hands of designing officials of mining corporations.”

“There is nothing in the statute requiring either that the application for the order, or the order from the president to the secretary, shall be in writing, or that either shall measure up to any fixed standard of sufficiency.”

Synopsis

Mining Corporation—Bight of Stockholder to Visit Mine—Befusal of President to Give Order—Penalty—Pleading—Damages.— Under section 589 of the Civil Code, a stockholder in a mining corporation has the right, at any time, to visit the mine, upon making a demand upon its president for an order to be issued by its secretary for that purpose, which order it is made his official duty to grant. In ease of the president’s refusal to comply with the demand, the stockholder has a right of action against the president, under section 590 of that code, to recover the statutory penalty, upon pleading the facts entitling him thereto, and is not required to allege any specific damage.

Id.—Form of Order Permitting Visit—Directions to Those in Charge of Mining Property.—-The fact that the demand was made for an order by the secretary directing “those in charge of the mining property,” rather than the “superintendent,” to permit the visit, did not destroy the effect of the demand, notwithstanding the statute requires the order to be directed to the “superintendent.”

Id.—Neither Demand nor Order by President Need be in Writing— Excessive Demand by Stockholder.—The statute does not require either that the application for the order, or the order from the president to the secretary, shall be in writing, or that either shall measure up to any fixed standard of sufficiency. If the demand is otherwise sufficient, the mere fact that it requests the president to embody in the order to be issued by the secretary certain matters that it was not his duty to grant, does not justify the president in refusing the demand.

MURPHEY, J.,

pro

tem.

Appeal from the judgment on the judgment-roll alone.

[86]

The action was prosecuted under sections 589 and 590 of the Civil Code. These sections, in so far as they relate to the subject matter of this litigation, are as follows:

Sec. 589. “Any stockholder of a corporation formed under the laws of this state for the purpose of mining, is entitled to visit, accompanied by his expert, and examine the mine or mines owned by such corporation, and every part thereof, at any time he may see fit; and when such stockholder applies to the president of such corporation, he must immediately cause the secretary thereof to issue and deliver to such applicant an order, under the seal of the corporation, directed to the superintendent, commanding him to show and exhibit such parts of said mine or mines as the party named in said order may desire to visit and examine.”

Sec. 590. “In case of the refusal or neglect of the president to cause to be issued by the secretary the order mentioned in section five hundred and eighty-nine, such stockholder is entitled to recover against said president the sum of one thousand dollars and costs, as provided in the last section.”

Defendant questions the sufficiency of the complaint on the ground that it contains no specific allegation of damage. The failure and refusal of the defendant to comply with the statutory requirements above set out is aptly pleaded. The prayer asks for the one thousand dollars’ penalty named in the statute. This is manifestly sufficient. No ease has been called to our attention wherein the exact point has been discussed for the reason, in all probability, that the point is so evidently untenable that it has not heretofore been called to the attention of the appellate tribunal.

Plaintiff as a stockholder made formal written demand upon the defendant, as president of the Socrates Consolidated Mining Company, for an order on the secretary, requiring him to issue the necessary permit and order on “those in charge of the mining property of the Socrates Consolidated Mining Company,” to permit him to visit and examine the mines and mining claims, etc. Defendant contends that the use of the words “those in charge” rather than the word “superintendent” as used in the statute, is fatally defective. To sustain this extremely technical contention would be to make the statute a plaything in the hands of designing officials of mining corporations. A complete evasion of the statute

Kinard v. Ward

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Synopsis

MURPHEY, J.,

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