It was formerly held in England under the common law that the right of inspection could be exercised as a matter of course only when there was some dispute about matters pertaining to the corporation between the stockholder and officers of the company or the other stockholders. (Rex v. Merchant Tailors Company, 2 B. & A. 115; In re Burton and Saddlers Company, 31 Law Jour. R. 62.) And it seems that some of the courts of last resort in this country have announced the same rule. (Com. v. Phoenix Iron Co., 105 Pa. 111, 51 Am. Rep. 184; Lyon v. American Screw Co., 16 R. I. 472, 17 Atl. 61.) While we find that the right of a stockholder as it existed at common law to inspect the books of a corporation has been enlarged and extended by statute both in England and in many of the states, still we have found no case in which it is held that any such rights under the common law have in any particular been restricted or abridged by statute. (Matter of Sage et al., 70 N. Y. 220; Matter of Steinway, 159 N. Y. 264, 53 N. E. 1103, 45 L. R. A. 461; State ex rel. Doyle v. Laughlin, 53 Mo. App. 542; People v. Eadie, 63 Hun, 320, 18 N. Y. Supp. 53.)

The disastrous effect which it is claimed the rule giving the stockholder the absolute right to examine the corporate books will have on the business interests of the corporation where a stockholder who is hostile to the corporation and to the officers and agents in charge of its affairs exercises his right of inspection for the purpose of making known to competitive and rival concerns the business transactions of such corporation, is, we think, more fanciful than real. Where a corporation deals honestly and fairly with its patrons and the public in general, and keeps "true and correct books of its proceedings and business," as required by statute, and there is no unlawful attempt made by those in control of the majority of the stock to combine their interests and by unfair means to so manipulate the affairs of the company as to "freeze out" or to otherwise sacrifice the interests of the minority stockholders, no serious harm can ordinarily result to the corporation from an inspection of its books by its

stockholders. While we think this liberal rule of inspection is a wholesome one, yet, as a legal proposition, we are not concerned as to whether the statute under consideration is a wise or an unwise measure. The statute gives the stockholder the absolute and unconditional right to inspect the books of the corporation, and it is the duty of this court to give it such effect.

The judgment is affirmed.

STRAUP, J. I coneur.

Costs to respondent.

LEWIS, District Judge. (Concurring).

I concur in the judgment affirming the judgment of the district court, but not upon the ground stated in the opinion. of the court. Construing sections 328 and 329 of the Compiled Laws of Utah, 1907, merely as declaratory of the common law, I am of the opinion that the answer filed herein does not state facts sufficient to constitute a defense to the complaint as modified in plaintiff's motion for judgment, and am of the opinion that the judgment of the court should be based on that theory, and reserving for future determination the question as to whether the right under the statute is an absolute right or whether the court has power to deny inspection in cases where the courts heretofore under the common law have denied the right. That question was not fully presented in argument, and in my judgment its determination is not necessary in this case. Whether the remedy

of the plaintiff was by judgment upon the pleadings or by demurrer to the answer was not raised either in the court below or in this court, and, as I understand it, this court expresses no opinion upon that question.

MYERS v. SAN PEDRO, LOS ANGELES & SALT LAKE RAILROAD COMPANY.

No. 2191. Decided May 27, 1911 (116 Pac. 1119).

1. PRINCIPAL AND AGENT-UNAUTHORIZED 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. (Page 201.)

2. EVIDENCE-ADMISSION BY AGENT-AUTHORITY-SUFFICIENCY. Evidence held to show that a railroad division superintendent's act in giving an employee 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 employee's negligence. (Page 202.)

3. NEGLIGENCE

COMPARATIVE NEGLIGENCE

INAPPLICABILITY. The doctrine of comparative negligence does not prevail in Utah. (Page 203.)

4. TRIAL-INSTRUCTIONS-REQUESTS. Requested instructions covered by the charge as given are properly refused. (Page 204.)

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

Action by Lena Myers against San Pedro, Los Angeles & Salt Lake Railroad Company.

Judgment for plaintiff. 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 former appeal. 36 Utah 307, 104 Pac. 736. 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.

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 train master 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, rules, and instructions." This letter was a 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. A 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 therein was not sufficiently shown. We then held that the admissibility of such an admission rests upon the principle of agency, and the authority of the agent in the particular instance to speak for the principal. On the 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 employee 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 written 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. 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

As