thus appears from a consideration of the several provisions of sections 4383, 4384, and 4385, first, that all written instructions given must be sent to the jury room unless one of the parties to the action objects to the giving of written instructions; second, that, if an objection is made to the giving of written instructions, the instructions must then be given in accordance with the provisions of sections 4384 and 4385, unless the parties consent to the giving of oral instructions, in which latter event subdivision 7 of section 4383 provides the procedure. In the case at bar, there was no consent to the giving of oral instructions, and it does not appear that any oral instructions were given. The record does not positively say that the instructions were in writing, but the request of the defendant was that "the written instructions in this case be sent to the jury room." The request implies that the instructions were in writing. The ruling of the court indicates that they were in writing and that he was of the opinion that he could send them to the jury room. The plaintiff objected to the instructions going to the jury room, but did not make any objection to written instructions. It would seem from the entire proceeding in the case that the instructions were given in writing and that they should have been sent to the jury room under the provisions of subdivision 4, § 4383. The judgment will be reversed, and a new trial is ordered. Costs awarded in favor of appellant. SULLIVAN, J., concurs. (39 Utah, 198) MYERS V. SAN PEDRO, L. A. & S. L. the 4. TRIAL (§ 260*)-INSTRUCTIONS REQUESTS. Appeal from District Court, Third District; Geo. G. Armstrong, Judge. Action by Lena Myers against San Pedro, Los Angeles & Salt Lake Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Pennel Cherrington and Dana T. Smith, for appellant. Booth, Lee & Badger and Powers & Marioneaux, for respondent. STRAUP, J. This case was here on a for36 Utah, 307, 104 Pac. 736. mer appeal. There may be found a statement of facts with respect to the cause of the injury and death of plaintiff's husband, and of the alleged negligence of the defendant and contributory negligence of the deceased. [1] The defendant was operating two sections of a freight train in the same direction. The two sections were regarded as two separate trains. The deceased was the conductor of the first section, which was the advance section. The second or rear section ran into the first causing a rear end collision and killing the deceased. The conductor of the rear section was discharged by the defendant's trainmaster on the day of the collision, or the day thereafter. Nine days after that he was given what is called a service letter by the defendant's division superintendent. In that letter the superintendent stated, among other things, that the conductor of the rear or second section was, "Discharged while on train 2nd No. 81, February 5th, 1906; ran down train 1st No. 81, which was on time, causing rear end collision. Dismissed from service on account of his utter disregard of the time-tables, (Supreme Court of Utah. May 27, 1911.) 1. PRINCIPAL AND AGENT (§ 156*)-UNAU-rules, and instructions." This letter was a THORIZED DECLARATION BY AGENT-EFFECT ON PRINCIPAL. A declaration made by an agent not relating to any business then being transacted for the principal and not within the scope of agency, generally, does not bind the principal. [Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 583-587; Dec. Dig. § 156.*] 2. EVIDENCE (§ 244*)-ADMISSIONS BY AGENT -AUTHORITY-SUFFICIENCY. Evidence held to show that a railroad divi sion superintendent's act in giving an employé a service letter showing the cause of his discharge was within the superintendent's authority, making the letter admissible against the company in an action based on the discharged employé's negligence. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*] 3. NEGLIGENCE (§ 97*)-COMPARATIVE NEGLIGENCE-INAPPLICABILITY. The doctrine of comparative negligence does not prevail in Utah. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 162; Dec. Dig. § 97.*] regular printed form filled in, a form which was furnished the superintendent by the defendant for such purpose. On the former hearing the judgment in favor of the plaintiff was reversed because of the admission of this letter in evidence over the defendant's objection. On a retrial of the case the letter was again admitted in evidence. Α judgment again was had against the defendant, from which it has prosecuted this appeal. Complaint is again made of the ruling admitting the letter in evidence. The ruling now, as before, involves the question of admissions of an agent to bind the principal. On the former hearing we held the letter improperly admitted upon the ground that the authority of the superintendent to write the letter and to make the statements and declarations contained there in was not sufficiently shown. We then held that the admissibility of such an admission For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes business transacted for the defendant, and not within the scope of his agency, written to A. stating his views as to the cause of the collision and who was at fault in causing it, the fact or transaction of writing to A. being itself irrelevant and inadmissible, the declarations and statements of the superintendent in connection therewith would likewise be inadmissible. Stating it another way, the writing of the letter not being in relation to the business of the principal and not within the scope of the agency, there would be a want of authority to bind the rests upon the principle of agency, and the declarations and statements of the agent are authority of the agent in the particular in-likewise inadmissible. That is to say, had stance to speak for the principal. On the the superintendent, not in relation to any first hearing it was not shown, nor was it claimed, that the superintendent had direct or actual authority to write such a letter or to make such statements or declarations. The authority was claimed from the facts that the agent who wrote the letter was the division superintendent, and that, when an employé left the service of the defendant, it was customary to give him a service letter. There was then no proof to show whose duty it was to write or give such a letter, nor the scope of the authority of the person whose duty it was to write or give it. We held that from the fact that the letter was writ-principal by anything said or declared by the ten and signed by the superintendent it could not be presumed that it was within the scope of his authority to write such a letter as was written by him, or to make such statements and declarations as were made by him; that in the absence of direct or special authority, to render the statements or declarations of an agent admissible as an admission binding upon the principal, it was essential to show that the declarations or statements were made within the scope of the agency and during the transaction of business by the agent for the principal, and were cotemporaneous with the acts which they illustrated; and, if the transactions or acts which they characterized or illustrated were themselves immaterial and inadmissible, the declarations and statements of the agent were likewise inadmissible. It is now claimed by the respondent, and denied by the appellant, that on the retrial of the case, direct and express authority of the superintendent to write the letter, and to make such statements and declarations as are contained in the letter, was shown. The appellant further contends that though the superintendent had actual and properly delegated authority to issue service letters, still the fact of issuing such letters and of giving one to the discharged conductor being itself irrelevant to the issue and inadmissible, the declarations and statements made by the superintendent in connection therewith must likewise be held to be inadmissible. As before observed the question must be determined upon the ground of authority of the superintendent to speak for the defendant, so that his statements and declarations became the declarations and statements of the defendant. When an agent declares or states something, not in relation to any business then being transacted for the principal, and not cotemporaneous therewith, and not within the scope of the agency, it is generally said such statements and declarations are without authority, and not binding upon the principal. [2] In such case the transaction, of which the declarations and statements are a part. agent. Hence, we would say, the agent, in such case, was not authorized to speak for the principal, and that his speech was not the principal's speech. But suppose the agent was required or directed by his principal to write to A. stating to him the cause of the collision, and who was to blame for it, then the statements and declarations of the agent made in relation to such matter would be the statements and declarations of the principal. The former, upon the evidence, was the situation on the first trial; the latter, on this trial. It is conceded the evidence, with respect to the authority, duties, and powers of the superintendent on this trial, differs from the evidence on the first trial. The superintendent was a witness produced by the plaintiff, and was examined, both on direct and cross-examination, at great length, in respect of his duties, powers, and authority to write and give service letters, such as was here given by him to the discharged conductor. He testified, in substance, that the defendant, and its trainmen and other employés, had entered into an agreement that a record should be kept by the defendant, and that an entry should be made of any violation of rules by an employé, good practice, neglect of duty, or other fault, showing facts, together with conclusion and action; and that it was a part of the agreement, when an employé was discharged, to give him a service letter specifying the cause of discharge. A book for such purpose was kept under the supervision and direction of the superintendent. The rules of the defendant required that the record of each employé should be open for his inspection, and for the inspection of the officers of the defendant. If it was not practicable for the employé to go to the office, the rules required that a transcript of his record should be furnished and sent him on application. It was the duty of the superintendent, as such, to furnish and give such a transcript, and to furnish a statement of the employé's record when he was discharged or voluntarily left the service of the defendant. It was also his duty to give a one voluntarily leaving the service, in which | absolute bar to a recovery. The test given he was required to state the cause of the discharge or other record of the employé. There was no one else who gave, or whose duty it was to give, such letters. The su perintendent was required to issue and sign every service letter issued on his division. He further testified that by reason of the agreement requiring the defendant to give service letters to discharged employés specifying the cause of the discharge, the defendant designated or required the superintendent to give them, and to state the cause of the discharge as appearing on the books and records of the defendant. The defendant had regular printed blanks of service letters on which were printed the words "specify conduct and cause of leaving service." This the superintendent in giving service letters was required to fill out, stating the cause of discharge or cause of leaving the service. A book, covering a period of four years or more, and containing copies of a large number of service letters issued by the superintendent, in which had been specified by him the cause of the discharge of employés, or of their leaving the service, was kept by the defendant and was put in evidence. This testimony is undisputed. We think the effect of it is that the superintendent was designated and appointed by the defendant to do just what was done by him, and to state just what was stated by himthe cause of the discharge of the conductorand that the things done and said by him in that regard were within the scope of the agency, and were done in relation to business transacted by him for the defendant. Under the circumstances now disclosed we are therefore of the opinion that the declarations and admissions of the superintendent were, in law, the statements and declarations of the defendant, and that the letter was properly admitted in evidence. Chemical Co. v. Knight, 106 Va. 674, 56 S. E. 725; McNicholas v. New England Tel. & Tel. Co., 196 Mass. 138, 81 N. E. 889; Lynchburg Tel. Co. v. Booker, 103 Va. 594, 50 S. E. 148; Moran Bros. Co. v. Snoqualmie Falls Power Co., 29 Wash. 292, 69 Pac. 759; Kirkstall Brewery Co. v. Furness Ry. Co., 9 L. R., Q. B. Cases, 468. [3] The defendant requested an instruction to the effect that the jury could not render a verdict against the defendant on the doctrine of comparative negligence. It complains because it was not given, and cites many cases and refers to many jurisdictions where the doctrine of comparative negligence has either been repudiated or never prevailed. The doctrine does not and never did prevail in this jurisdiction. by the court to the jury was, not whether [4] The entire charge of the court is hostile to and inconsistent with such a doctrine. The court charged the jury not on the the- The defendant also requested the court to ory of comparative negligence, but on the charge the jury that: “No man is held to theory that contributory negligence was an a higher degree of skill or care than the fair 116 P.-71 average of his trade or profession, and the standard of due care is the conduct of the average prudent man engaged in the profession under the same circumstances. The test of negligence, so far as concerns the employés of the second section of train 81 in this case, is the same, and it matters not that they might have operated their train in a safer or less dangerous way. You cannot say that it was negligently operated, unless you find from a preponderance of the evidence that it was not operated in the usual and customary way commonly adopted by railroad trainmen of average experience and prudence." The court refused to charge as requested, but charged the jury as follows: "In this case the defendant is not held to any greater or higher degree of care than that customarily used by railroads generally in the operation of their trains. If, therefore, you find from the evidence that the second section of train 81 was being operated in the usual and ordinary way for running freight trains, under the conditions existing at the time of the accident, such methods would not be negligence, and your verdict should be for the defendant." Complaint is made of this ruling. The contention is that the defendant was entitled to have the court charge as requested, and that the court did not do so. In the first place, there was no evidence rendering such a charge pertinent. As before observed, the defendant was operating two trains in the same direction. The rules of the defendant required that "trains in the same direction must keep at least five minutes apart, except in closing up at stations or at meeting and passing points"; that "a train must not arrive at a station in advance of its schedule time"; that "all except first-class trains will approach yard limits under full control, and be prepared to stop within the limits of vision, and that the responsibility for accident at such points will rest with the approaching train." It was alleged, and evidence adduced to support the allegations, that the second section was operated in violation of these rules, and that it, at a speed of from 20 to 30 miles an hour, was run into the first section while it was on time and within the yard limits of a station. On the other hand, it was contended by the defendant that the rules were not violated by the members of the second section, and that the first section was behind time; that it had not yet reached the yard limits of a station; that it had been delayed and was stopped, or nearly stopped; that the deceased ought to have protected his train by throwing off fusees, or by flagging, or by giving other stop signals, as by the rules of the defendant provided; and that he was guilty of negligence because those things were not done. The case is not one involving skill, or of different methods of doing a thing, one safe and the other grees of safety or danger. The defendant did not contend, nor, we assume, can it be contended, that operating a freight train in violation of the rules of the defendant referred to, and running it in advance of its schedule time, not keeping at least five minutes apart of an advanced train on time moving in the same direction, and running it in yard limits not under control at a speed of from 20 to 30 miles an hour and encroaching upon the time of an advanced train itself on time in yard limits, and colliding with it, is a reasonably safe, or proper way, or a customary, or a usual, or ordinary manner, of operating a freight train. What defendant contended was not that the doing of such things was reasonably safe, or proper, or usual, or customary, or ordinary, but that the members of the second crew did not do them; that the advance train was itself not on time, that it was not in the yard limits, that it was delayed and stopped, or practically so, and that the collision was due to the failure and negligence of the deceased in not protecting his train. In the next place, while in some cases and under some circumstances it is proper to show the customary or usual manner of doing a thing as generally done by those engaged in a similar business under similar circumstances, to aid the jury in determining the question of care or negligence involved in the particular case, yet it is not proper to charge the jury, as was requested, that the train operatives of the second crew could not be held guilty of negligence, if what was done by them, in the operation of their train, was usual, or customary, or was ordinarily or generally done by train operatives. This is well illustrated by the case of Cass v. Boston & Lowell R. R. Co., 14 Allen (Mass.) 448, where evidence of such character was held admissible, and in the case of Maynard v. Buck, 100 Mass. 40, where a charge such as was here requested was held improper. The reason for the distinction is well stated by the court in the last case. The court said: "The effect and purpose of the evidence is to aid the jury in forming their judgment of what the party was bound to do, or was justified in doing, under all the circumstances of the case. What had been done by others previously, however uniform in mode it may have been shown to have been, does not make a rule of conduct by which the jury are to be limited and governed. It is not to control the judgment of the jury, if they see that in the case under consideration it is not such conduct as a prudent man would adopt in his own affairs, or not such as a due regard to the obligations of those employed in the affairs of others would require them to adopt. It is evidence of what is proper and reasonable to be done, from which, together with all the other facts and circumstances of the case, the jury are to determine whether the was proper and justifiable." The same prin- | in a reasonable time to share therein by ofciple is also illustrated in the cases of Wa-fering to pay his just proportion. bash Railroad Co. v. McDaniels, 107 U. S. [Ed. Note. For other cases, see Tenancy in 454, 2 Sup. Ct. 932, 27 L. Ed. 605; Grand Common, Cent. Dig. §§ 55-59; Dec. Dig. § 19.*] Trunk R. R. Co. v. Richardson, 91 U. S. 454, 3. TENANCY IN COMMON (§ 19*)—ACQUISITION 23 L. Ed. 356, and in the case of Spiking OF OUTSTANDING TITLE-MUTUAL RIGHTS. v. Railway & Power Co., 33 Utah, 313, 93 The question of what is a reasonable time Pac. 838, where the present Chief Justice within which a tenant in common must elect well said: "There are some things that it acquired by a cotenant by offering to pay his to share in the benefits of an outstanding title may be negligent to do or omit to do, al- just part of the expenses incurred in the acthough all others do or omit to do them. quisition of the title, depends on the peculiar This is well illustrated in the case of Web- facts of the case, and no fixed rule exists. ster v. Symes, 109 Mich. 1 [66 N. W. 580];" Common, Cent. Dig. §§ 55-59; Dec. Dig. § 19.*] 4. TENANCY IN COMMON (§ 19*)-ACQUISITION OF OUTSTANDING TITLE-MUTUAL RIGHTS. and other cases there cited. Were it not so, a driver of an automobile could not be found guilty of negligence in operating an automobile along a highway or street at a speed of 20 miles or more an hour, because it was usual or customary for others to operate automobiles at such speed. We think, under the circumstances, no error was committed in refusing to charge as requested. We are of the opinion that the judgment of the court below ought to be, and it therefore is, affirmed, with costs. FRICK, C. J., and MCCARTY, J., concur. (50 Colo. 470) HARRISON v. COLE et al. (Supreme Court of Colorado. Feb. 1, 1909. Rehearing Denied May 1, 1911.) [Ed. Note.-For other cases, see Tenancy in A tenant in common procured an outstanding title. He failed to inform the cotenant of the amount properly chargeable to his interest, though he was familiar with the facts, and though in fairness he should have called on the cotenant to pay his part before acquiring the title. Prior to the acquisition of the title the cotenant had expressed his willingness to pay his part for the title and had offered to pay one-half, but the offer was refused. Held, that a delay of two years on the part of the tenant before electing to share in the benefits of the outstanding title by offering to pay his part of the expenses incurred was not unreasonable, no material change in the value of the property occurring during that period. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 55-59; Dec. Dig. § 19.*] 5. TENANCY IN COMMON (§ 19*)-ACQUISITION OF OUTSTANDING TITLE-RIGHTS OF PARTIES. 1. TENANCY IN COMMON (§ 19*)-ACQUISITION OF OUTSTANDING TITLE-MUTUAL RIGHTS. The perfection of the common title by a tenant in common who purchases an outstand-ed the absolute ownership. Plaintiff answered ing title inures to the benefit of the cotenant, to the extent of his interest on his electing within a reasonable time to contribute his share of the expenses necessarily incurred in the acquisition of such title, unless he has repudiated the relation, or is estopped from asserting his rights. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. 88 55-59; Dec. Dig. § 19.*] A plaintiff claiming as a tenant in common sued in partition. Defendant denied plaintiff's interest, and by cross-complaint set up the record of judgments by virtue of which he claimthe cross-complaint and alleged the acquisition of his title, admitted the judgments, and denied that he was personally obligated to pay any part of the amount paid by defendant to perfect the title. Prior to the perfecting of the title plaintiff had offered to pay his part of the expenses which could only be ascertained by an accounting. Held, that plaintiff's answer to the cross-complaint did not preclude him from insisting on his rights to elect to share in the benefits of the perfecting of the title, though he did not offer to do equity by offering to pay his part of the expenses incurred in perfecting the title, but the court partitioning the premises could do so on equitable terms. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 55-59; Dec. Dig. § 19.*] 2. TENANCY IN COMMON (§ 19*)-ACQUISITION OF OUTSTANDING TITLE-MUTUAL RIGHTS. A plaintiff, suing to establish a trust in real estate, obtained a decree effectual on his reimbursing the holder of the legal title for taxes paid. Pending the suit be conveyed to his attorney an undivided one-fourth interest in the premises as compensation. After the decree and before an accounting for taxes paid, plaintiff mortgaged his undivided interest to a En Banc. Appeal from District Court, third person to secure a loan, and the third City and County of Denver; S. L. Carperson, after the decree of accounting, but be White and Hill, JJ., dissenting. fore the payment of the amount due, obtained penter, Judge. and remanded. The facts presenting the questions involv a deed in satisfaction of the mortgage. The at- Action by George W. Harrison against torney, without notice to the third person, Mary B. Cole and others. From a judgment paid the taxes found due on the accounting, for defendants, plaintiff appeals. Reversed and obtained an order subrogating him to the rights of the legal holder. The third person had offered to pay his share of the taxes. Held, that the attorney and the third person were tenants in common at the time the attorney ed in this appeal are substantially as folobtained the order of subrogation, but their lows: title was subject to the right of the legal holder to reimbursement for taxes, and the payment of the taxes by the attorney inured to the an action against the surviving heirs of benefit of the third person on his electing with- John W. Iliff, deceased, to establish a trust *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes In December, 1890, one Adams instituted |