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court based the finding which is assailed by appellant's counsel. The court must have assumed as a matter of law that the trout required special care and attention while in transit between Salt Lake City and Elsinore, Utah, a distance of approximately one hundred and seventyfive miles, and, further, that the respondent neither knew nor had the means of knowing that the trout required such special care and attention. The court further assumed without proof, so far as the record discloses, that the shipper failed to impart notice to the carrier that the trout required special care and attention and also failed to impart notice to it of what such care and attention consisted. That the court apparently treated these matters as questions of fact is clear enough, or he would not have made the findings complained of. In view, however, of the pleadings and the evidence, there is much force to appellant's contention that he had no opportunity to meet such an issue by presenting any evidence upon the question, and hence has never had his day in court upon that subject. Can it be assumed as a matter of law that young trout are afflicted with such a latent infirmity that the carrier who accepts them for transportation in good condition by express, which every one knows is the speediest and perhaps safest method of transporting live property, like young fish, must be expressly told what he must do in taking care of them while in transit? May it not be a fact that the transportation of young trout. has become of such frequent occurrence that express companies are or should be prepared to transport them safely without express directions from the shipper? At all events, must not the foregoing questions as well as whether the shipper or the carrier was negligent, and, if so, which one's negligence was the proximate cause of the loss be established by evidence as a matter of fact and not assumed as a matter of law? In Chicago, B. & Q. Ry. v. Owen, 21 Ill. App. 339, the court had under consideration a similar question with regard to the transportation of a valuable calf which while in transit had to be handled by the train and station men. The calf, by reason of its unruly disposition, required

the handling, and by reason of it became overheated and died. The court, in speaking of whether the trainmen in handling the calf were negligent or not, at page 343 said: "Whether a given act is negligent or improper is to be determined by the surrounding circumstances and conditions existing at the time and which were or ought to have been known to the party sought to be charged." So may it also be said of anything omitted as well as of any act of commission. It may be that the duties of the carrier with respect to the care to be given to hogs, cattle, sheep, and horses while in transit have in certain districts of this country become so generally known that, in case the facts are not in dispute, a court may say as a matter of law, whether the carrier was negligent or not with regard to given conduct. From the record before us, however, it would seem that the care which young trout require while in transit is rather a matter that must be left to those who are familiar with the nature and requirements of the fish, and whether the carrier or the shipper was negligent or not must be determined from the evidence and surrounding circumstances. The court, therefore, made a finding upon a subject upon which the parties have not been heard and upon which there was no competent evidence.

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Nor can it, under the circumstances, be said that the finding in question was proper because it was merely a negative finding, and that such a finding may be made in any case where there is no evidence in support of an affirmative issue. No doubt, when the burden of proof is upon the party against whom the negative finding is made, the foregoing rule is applicable. (Tate v. Rose, 35 Utah 229, 99 Pac. 1003.) In the case at bar, however, the burden of proof with respect to whether the respondent as a common carrier took proper care of the trout while in transit was upon it.

The respondent admitted that it received the trout for transportation, and that about 19,500 of them died while in transit, and the court found that they were in good condition when respondent received them. In view, therefore,

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of the duty that the law imposes upon common carriers, the burden of proof was upon the respondent to show why it did not deliver the trout in as good condition as they were when they were received by it. The rules with respect to the burden of proof in cases where live animals are transported by a common carrier and are injured while in transit is well stated by Mr. Justice Vander burgh in the case of Boehl v. Chicago, M. & St. P. Ry., 44 Minn. at page 192, 46 N. W. 334, in the following language:

"And it is enough to make a prima facie case against him (the carrier) that the owner allege and show the delivery of the property to the carrier and the nature of the loss or damage suffered during its transit. It will then devolve on the carrier to show that such injury was caused without his fault and through the inherent nature or propensity or 'proper vice' as it is sometimes called of the animals transported."

This rule applies where it is claimed that the animals were injured through the negligence of the common carrier as well as in other cases, unless the action is based upon a special contract which limits the duties of the carrier in that regard. This rule is illustrated and applied in the case just referred to.

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We are of the opinion, therefore, that the finding objected to was upon a material element in the case, that it is not supported by the evidence nor the pleadings, and that it does not fall within the class of negative findings which may be based upon the absence of evidence for the reason we have given. The court therefore erred in making said finding, and the error was prejudicial to appellant's rights. Neither, can we see how the finding that respondent's "agent in handling said fish used due care and diligence according to his best knowledge and information in handling fish" can aid respondent. It may be that an employee of a common carrier may have used due care “according to his best knowledge and information," and yet the care he used may have fallen far short of that care which the carrier was bound to exercise in discharging his duty to the shipper. The employee's knowledge upon the subject may have been greatly lacking, or his information may have

been wrong. The carrier can, however, not shield himself in that way. He must at his peril apply that degree of care in transporting property of all kinds which the law imposes, and can excuse himself only in the manner and under the conditions pointed out by the authorities we have quoted from.

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Nor does the fact that the court in its conclusions found. "that the defendant was not negligent in the transportation of such fish" change the result. Such a conclusion, under the issues, could only have reference to the means used by respondent in transporting the fish and not to their care while in transit. But, entirely apart from what we have already said with respect to the burden of proof, we think that such burden in this case, in view of the unqualified admissions in the answer, was upon respondent to show that the fish died from some inherent vice or infirmity, the consequences of which could not, by the exercise of reasonable care, have been obviated. In other words, the burden was upon respondent to show that it was free from fault in taking care of the fish as well as being so in other respects. Further, we think the court should make special finings upon the questions (or, if the case be tried to a jury, that they be required to find, under proper instructions) whether the respondent was entitled to special notice with respect to what care the trout required while in transit, or whether such notice was given or not, or whether respondent, in view of the business it was engaged in, ought to have had knowledge of the special care that young trout require in transit, and whether the trout died from some latent inherent infirmity or vice.

For the foregoing reasons, the judgment is reversed, the cause remanded to the district court, with directions to grant a new trial, and to permit the parties to amend their pleadings if they are so advised, and to proceed with the case in accordance with the views herein expressed. Appellant to

recover costs.

MCCARTY and STRAUP, JJ., concur.

STATE v. BROWN.

No. 2163. Decided May 5, 1911 (115 Pac. 994).

1. FORGERY-INDICTMENT-VARIANCE-NAMES. Under Comp. Laws 1907, section 4738, making erroneous allegation as to name of a person injured immaterial where an offense is definitely identified, in a forgery trial there was no fatal variance between allegation that the bank defrauded was "the Commercial National Bank" and proof that the bank's corporate name was "Commercial National Bank of Salt Lake City." (Page 141.)

2. CRIMINAL LAW-INSTRUCTIONS-ACCUSED'S GOOD CHARACTER. Accused is entitled to an instruction to consider all the evidence, including evidence of good character, and to acquit if the evidence of good character, alone or with the other evidence, creates a reasonable doubt as to accused's guilt. (Page 160.)

3. CRIMINAL LAW-INSTRUCTIONS-ACCUSED'S GOOD CHARACTER. Instructions that, no matter how conclusively the other evidence considered by itself might point to guilt, proof of good character might create a reasonable doubt, where doubt would not otherwise exist, and might lead the jury to believe, in view of the probabilities, that one of such good character would not be guilty and the other evidence was not true, or that the witnesses in some way might be mistaken; that good character is an important fact with every man, and never more so than when he is on trial for an offense rendered improbable by a uniform course of life, etc., were properly refused as being argumentative and otherwise improper.1 (Page 161.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Arthur Brown was convicted of forgery and he appeals.

AFFIRMED.

See, also, 36 Utah 46, 102 Pac. 641.

Powers and Marioneaux for appellant.

A. R. Barnes, Attorney-General, for the State.

1 State v. Van Kuran, 25 Utah, 8, 69 Pac. 60.