pened to his car, or to any person or property, the responsibility for which attached to him.

Indeed, the court instructed the jury that there was no evidence "of any special acts of carelessness on the part of the motorman, Defrain, prior to the time when Gier was hurt, from which the jury would be authorized to find that said Defrain was either careless or incompetent as a motorman."

Respondent criticises the omission of defendant to question Defrain himself (the motorman) as to his competency, skill, and carefulness at the time of his employment. Such inquiry would be natural and prudent were no better source of information at hand; but defendant was not at fault, since it took pains to avail itself of evidence upon the matter at once disinterested and superior, that of his former employer.

It appears, accordingly, that in the original selection of the employee the defendant was not remiss, did not fail to exercise ordinary care. The determination of this fact in its favor, defendant contends, entitles it to a reversal of the order and judgment. "An employer," says section 1970 of the Civil Code, "is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of business in which he is employed, nor in consequence of the negligence of another person employed by the same employer in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee." The strict construction of this section for which appellant contends would support his contention and at the same time relieve the employer from all liability to an employee for the acts of such a culpable servant, even though afterward the employer had received knowledge that such servant had become grossly incompetent, reckless, or unfit, provided only that at the time of his selection ordinary care was exercised. Thus an employee, skillful and competent and careful at the time of his employment, might through drunkenness, or other vice, become wholly unfit and untrust

worthy, yet, though knowledge of this were brought home to the employer, and he refused to act upon it, the helpless fellow-servant, himself perhaps in ignorance, would have no redress. A court would be strenuous against such a construction, and, if forced to adopt it, would regard it only as an inevitable and unfortunate miscarriage of justice.

But no such result need here arise. If necessary we should not hesitate to construe the acts of the employer under such circumstances as constituting a new selection of the culpable employee. This, however, we do not deem requisite. For the section following the one quoted provides generally that an employer must in all cases indemnify his employee for losses caused by the former's want of ordinary care. (Civ. Code, sec. 1971.) Such lack of ordinary care may as well be shown by the retention of an unfit employee after knowledge of the fact as by a failure to use due diligence at the time of his selection, and in either case the liability of the employer attaches.

The defendant then having exercised due care in the selection of Defrain, to render it liable for the injury complained of, it was necessary for the plaintiff to establish the following facts: 1. That the accident happened by reason of the carelessness or incapacity of Defrain; 2. That Defrain had become and was actually unfit or incompetent through negligence or incapacity; 3. That defendant knew this, or that Defrain's general reputation was so in accord with the fact that the presumption is that defendant knew it, and was therefore negligent in not acting upon the knowledge.

And this is so because the burden of proving the employer's negligence is on plaintiff. He attempts to do this by showing that his fellow-employee was, in fact, unfit and reckless, and that the employer knew this, or is presumed to have known it. It is, therefore, the character of the employee which is the object of ultimate determination, not his reputation. Where the plaintiff has established that the employee was, in fact, unfit and

incompetent, and has been able to show by direct proof that the employer knew this fact, the case so far is made out, and there is no need of or utility in evidence of reputation. But as such proof is difficult and frequently impossible to make, the law permits the employer to be charged after proof of the fact of unfitness, if it can be shown that the culpable servant's reputation for the particular matter in question was so generally and notoriously bad that it ought to have been, and therefore presumably was, known to him. For then, with knowledge of this reputation imputed to him, if the employer had acted with reasonable prudence upon this information, he would have discovered that the reputation was well founded, that the facts justified and supported it-in short, that he had in his employ an unreliable man.

It becomes apparent, therefore, that as evidence of reputation becomes necessary only where there is an inability to furnish direct proof of the employer's knowledge, so it is proper only after the establishment of the fact that the employee is in truth an unfit person. And reputation is not proof of that fact. A man's reputation may be at variance with his character or in accord with it. He may be reputed reckless, and in fact be careful. An employer is not bound to discharge an employee merely because of his ill repute; but he is culpable if he retains in his employ a servant with a bad reputation, well founded. So it is that evidence of individual acts evincing negligence or incompetency is admissible. It is admitted, not to show reputation, but to establish the second requisite specified, namely, that the employee was veritably unfit or incompetent.

Such is the rule. It will be found suggested or laid down with more or less particularity in the cases of Cosgrove v. Pitman, 103 Cal. 274; Baulec v. New York etc. R. R. Co., 59 N. Y. 356; 17 Am. Rep. 325; Davis v. Detroit etc. R. R. Co., 20 Mich. 105, 112; 4 Am. Rep. 364; Norfolk etc. R. R. Co. v. Hoover, 79 Md. 253; Monahan v. City of Worcester, 150 Mass. 439; 15 Am. St. Rep. 226; Lake Shore etc. Ry. Co. v. Stupak, 123 Ind. 210, 229.

Applying it to the case at bar, the first fact, as has been said, was clearly proved, and it may be conceded (though not decided) that the bad reputation of Defrain was sufficiently established. But, upon the other essential, the fact that Defrain was reckless or careless, there is not only a failure, but such an entire absence of proof, that the court was justified in its instruction to the jury to that effect. Plaintiff's case, as to this, then rests merely upon proof of reputation, but, as has been shown, proof of a reputation for unfitness is not proof of the fact of unfitness.

The judgment and order are reversed and the cause remanded.

MCFARLAND, J., and TEMPLE, J., concurred.

[No. 15955. Department Two.-July 15, 1895.1 C. H. GAROUTTE, RESPONDENT, v. STEPHEN

WILLIAMSON ET AL., APPELLANTS.

NEW TRIAL-CONDITIONAL ORDER GRANTING MOTION-EFFECT OF REFUSAL TO COMPLY.-Where a motion for a new trial made by the defendants is granted on condition that they pay to the plaintiff within a time named his costs of suit, and the defendants refused to comply with the condition imposed, the motion must be regarded as having been denied.

TROVER-CONVERSION OF WHEAT-INDORSEMENT OF WAREHOUSE RECEIPT PLEDGE-PRESUMPTION-BURDEN OF PROOF.-In an action of trover to recover damages for the conversion of wheat, the warehouse receipt for which had been indorsed and delivered to a bank, the plaintiff's ownership of the wheat being proved, it is to be presumed that the plaintiff had a right to its present possession at the time of the conversion, and the burden of proof is upon the defendants to show that the indorsement made upon the back of the warehouse receipt was made by authority, and that on the security of it money was advanced or loaned by the bank which had not been repaid, and that there was an existing indebtedness secured by a pledge of the wheat to the bank at the time of its conversion by the defendants, and, in the absence of such proof, a judgment in favor of the plaintiff cannot be reversed upon the ground that there was no evidence to show that the indebtedness to the bank had been paid at the time of the conversion.

ID.-EFFECT OF WAREHOUSE RECEIPT-NEGOTIABLE PAPER.- warehouse receipt is negotiable paper, and under the statute in relation to

warehouse receipts, the property represented thereby is transfer. able by the indorsement of the party to whose order it was issued. APPEAL-REVIEW OF INSTRUCTIONS-EXCEPTIONS TAKEN TOO LATE.--Errors in the giving or refusing of instructions are errors in law occurring at the trial, which must be excepted to at the time the errors occurred, or they cannot be reviewed upon appeal; and, where the bill of exceptions does not show any attempt to take exception to the action of the court in regard to the instructions until after the jury had retired and deliberated upon their verdict, exceptions thereafter taken are too late, and must be disregarded upon appeal. EVIDENCE-REMOVAL OF WHEAT-DECLARATIONS OF WAREHOUSEMAN -OWNERSHIP-RES GESTE.-The statements of a warehouseman as to the ownership of wheat removed from the warehouse and loaded by him upon a barge, identifying the wheat removed, and made at the time of its removal, are admissible in evidence as part of the res gesta.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order granting a new trial. CHARLES W. SLACK, Judge.

The facts are stated in the opinion.

W. S. Goodfellow, and Edward R. Taylor, for Appellants.

The jury disregarded the instruction of the court, that an action of trover cannot be maintained unless the owner was in the actual possession at the time of the alleged conversion. (Triscony v. Orr, 49 Cal. 612.) The law as stated in the charge of the court was binding on the jury, whether right or wrong, and a verdict contrary to the law as declared by the trial court must be set aside. (Emerson v. Santa Clara County, 40 Cal. 543; Karr v. Parks, 44 Cal. 46, 50; Aguirre v. Alexander, 58 Cal. 30.)

Dunne & McPike, and Robert Y. Hayne, for Respondent.

The new trial must be considered as denied. (Garoutte v. Haley, 104 Cal. 497.) The statements of the warehouseman at the time of the loading of the wheat on the barge were part of the res gestæ, and admissible. (Code Civ. Proc., sec. 1850; Tait v. Hall, 71 Cal. 152; Davis v. Drew, 58 Cal. 158; Robinson v. Haas, 40 Cal. 478; Gilchrist v. Bale, 8 Watts, 355; 34 Am. Dec. 469; Swift