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Upon such an issue a finding of fact was essential. The court found that notice in writing was not given. It further made the conclusion that the giving of a written notice was waived by the defendant's "conduct." The facts upon which such a conclusion is based are not found, and until they are found, we cannot properly review and determine the question whether the conclusion is right or wrong. Findings of fact which merely announce certain legal conclusions deducible from facts not stated are not sufficient to support a judgment. Much that has been said with respect to the first requirement also applies to the finding relating to the proofs of loss. It was likewise alleged in the complaint in general terms (that the insured had complied with all the terms and conditions of the contract on its part to be kept and performed) that proofs of loss had been furnished in accordance with the terms of the policy. This allegation was also denied by the defendant, and it specifically alleged that proofs of loss were not furnished. The plaintiff replied that proofs of loss were furnished June 8, 1904 (nearly six months after the fire), and that the defendant because of its disclaimer of all liability on the policy waived the furnishing of such proofs. On this issue the court found that the statement specified in the policy relating to proofs of loss was furnished, substantially as provided by the policy, "except that said statement was not rendered within sixty days after the fire aforesaid, but that said defendant was not prejudiced by the failure to render it within that period," and that the statement was rendered more than sixty days before suit was instituted. No finding of fact or conclusion is made on the question or issue that the furnishing of proofs of loss was waived. Again, we have been referred to the evidence where it is claimed by the respondent that the facts appear showing a waiver, and by the appellant that such facts show no waiver. We are thus called upon to do what the trial court should have done, ascertain and find the facts, and then review, not a finding of the trial court, but our own finding, and determine whether such facts as found by us constitute a waiver. If

proofs of loss were furnished in accordance with the terms of the policy, the question of waiver is, of course, immaterial; otherwise it is material. To properly determine whether the proofs were rendered in accordance with the terms of the policy involves two things: (1) The facts relating to and the circumstances surrounding the rendition of the proofs; and (2) the meaning of several provisions of the policy bearing on the subject. It is time enough to express an opinion on the second when we learn what the material and ultimate facts are. The court again failed to find the facts, but made the mere conclusion that the statement rendered was a "substantial" compliance with the terms of the policy. When this finding or conclusion is placed side by side with the policy, and compared with its terms, no one can tell whether the conclusion that the statement rendered was a "substantial compliance" with the terms of the policy was or was not correct. The court found that the statement was not rendered within sixty days; but no finding is made when it was rendered, except that it was rendered more than sixty days before the suit was commenced. By referring to the pleadings, we see that the suit was commenced September 18, 1905. From this and the findings it may be deduced that the proofs of loss were rendered some time between sixty days after the fire and sixty days before the suit was commenced, a period of about six months. At what time within such period the statement was rendered we are not apprised, except we do what we have been asked to do, go to the evidence and ascertain and find the fact. The only question of law that we could properly determine in the case is whether the furnishing of the proofs of loss at any time within such period of six months was or was not a compliance with the terms of the policy in so far as it related to the time in which such proofs were required to be made. We have concluded not to express any opinion even as to such a question until the facts bearing upon it are properly before us. Though the question should now be determined by us in favor of the respondent, still the judgment cannot stand on the findings as made because of their uncertainty, and

because they do not find the facts on other material issues as heretofore pointed out, and especially with respect to the issue as to the giving of notice of the loss. The findings themselves do not show that any notice of the loss was given, or that the defendant otherwise had any knowledge or notice of the loss, until the proofs of loss were rendered at some indefinite and uncertain point of time covering a period of about eight months after the fire, nor that the giving of the notice was waived.

The general finding "that all the material allegations of the complaint are true, and that the defendant failed to establish by any competent proof its defense herein," does not aid the matter. Courts have frequently held that such a finding is too indefinite and is insufficient. Spelling, New Tr. & App. Pro., section 593.)

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(2

Because of the uncertainty and insufficiency of the findings in the particulars referred to, we are of the opinion that the judgment is not supported by them. We have there

fore concluded to remand the case to the trial court with directions to vacate the findings and to set aside the judg ment, heretofore made and entered, and to make findings of fact on all the issues tendered by the pleadings, and to separately make and state conclusions of law on the facts found, and to enter a judgment accordingly. We have a statute (section 3304x, Comp. Laws 1907) which gives us the power to so remand the case with such directions. Of course, either party may prosecute an appeal from the judgment so entered as from any other final judgment.

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The costs of this appeal are awarded to appellant.

FRICK and MCCARTY, JJ., concur.

NELLIE TEAKLE (as Administratrix of the Estate of Thomas W. Teakle, Deceased), Respondent, v. SAN PEDRO, LOS ANGELES and SALT LAKE RAILROAD COMPANY, Appellant.

No. 2014. Decided June 23, 1909 (102 Pac. 635).

1. APPEAL And Error-DISPOSITION OF CAUSE-SUCCESSIVE APPEALS -"LAW OF CASE." The evidence adduced on retrial being substantially the same as that on the first trial, the decision of the Supreme Court on the questions presented on the former appeal is the "law of the case" on a subsequent appeal.1 (Page 37.)

2. RAILROADS-INJURIES ON TRACK-ACTIONS-SUFFICIENCY OF EVIDENCE-PROXIMATE CAUSE. In an action for decedent's death by being struck by a train in defendant's yards, evidence held to sustain a finding that decedent only lost an arm when the first car passed over him, and that he would not have been killed if the train had been stopped before he was struck by the engine. (Page 41.)

3. RAILROADS-INJURIES ON TRACK-ACTIONS-SUFFICIENCY OF EVIDENCE-NEGLIGENCE. In an action for decedent's death by being run over by defendant's train, evidence held to sustain a finding that the train operators, by the exercise of reasonable care, could have discovered decedent's perilous position after he was struck by the first car which cut off his arm and before he was killed by the engine passing over him. (Page 41.)

4. RAILROADS-INJURIES ON

TRACK-ACTIONS-INSTRUCTIONS-APPLICABILITY TO ISSUES. In an action for decedent's death by being run over by defendant's train by its negligence in failing to stop the train before the engine hit him after he had been run over by the first car, an instruction that decedent was concededly negligent in stepping in front of the approaching car so that, in order to recover, plaintiff must prove that the negligence of defendant's servants continued after decedent's negligence so as to proximately cause his death, and plaintiff could not recover if he was killed when he was first struck, but if defendant's failure to maintain a lookout on the car, or those on the car failed to look in the direction the train was going so as to see decedent's peril, and if they had done so the train could have been stopped before he was killed, plaintiff should recover,

1

1 Potter v. Ajax Min. Co., 22 Utah 277, 61 Pac. 999.

together with other instructions to the same effect, did not authorize a finding for plaintiff because of defendant's negligence before decedent was first struck and knocked down by the train (Page 43.)

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

Action to recover damages for personal injuries resulting in the death of plaintiff's intestate. From a judgment for plaintiff defendant appealed.

AFFIRMED.

Former Decision 32 Utah 276.

Pennel Cherrington and George H. Smith for appellant.

Richards, Richards & Ferry for respondent.

APPELLANT'S AUTHORITIES.

have

Where damages are claimed for injuries which may resulted from one of two causes, for one of which the defendant is responsible and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and he must fail if it is just as probable that the damages were caused by the one as by the other, since the plaintiff is bound to make out his case by the preponderance of the evidence. (Railway v. Poole's Ad., 40 S. E. 627; Railway v. Heath, 48 S. E. 508; Searles v. Railway, 101 N. Y. 661; Shore v. Bridge Co., 11 Mo. App. 278; Beckman v. Railroad, 12 So. 956.)

RESPONDENT'S AUTHORITIES.

The verdict of the jury will not be interfered with if there is any evidence to support it. (Stoll v. Mining Co., 19 Utah 271; Wild v. Union Pacific, 23 Utah 265; Garr v. Cranney, 25 Utah 193.)