not ultra vires. Therefore, for any act of negligence in this regard causing the death of anybody, it was liable to the penalty imposed by the statute upon it for such an offense. It must pay the penalty established by law for its negligence, and is not limited to that which might have been imposed upon the city for its negligence having like result. The case upon this point is governed in principle by Phinney v. Boston Elevated Railway, 201 Mass. 286, 87 N. E. 490, 131 Am. St. Rep. 400.

may be done when the jury reconvene on Monday morning."

The next court day was Monday, October 15. The jury separated at 11 o'clock on Thursday night, presumably by order of the judge, though his directions upon that point are not disclosed. When the court reconvened on the following Monday, the foreman of the jury announced that they had agreed on the answers to all the questions except number 8. Thereupon, in response to the inquiry by the judge whether there was any prospect of agreement if the case was further submitted, the foreman replied:

"I think there is a chance of reaching an We are pretty close together as agreement. If it is, very close, in fact."

[6] The jury were instructed that: "If you find upon all the evidence that Mrs. Charles' death was hastened by this accident, then the plaintiff has sustained the burden of proving that her death was caused by the accident within the meaning of this statute. you find that she was confined to her bed and had become weak and enfeebled, and if owing to that weakness and confinement hyperstatic pneumonia developed which caused her death, then you would also be warranted in finding that her death was due to the accident. If you should further find that she had some kidney trouble prior to the accident and that owing to the accident it was aggravated and made acute and that her death was materially hastened by the accident, then you would properly be warranted in finding that her death was caused by the accident."

This instruction is not fairly susceptible of the construction that there could be recovery even though the confinement to the bed and consequent weakness were not the result of the accident as their proximate cause. Taken as a whole it means that there could be no recovery except for consequences flowing from the fall as their operative cause. The instruction was in accordance with Wiemert v. Boston Elevated Ry., 216 Mass. 598, 104 N. E. 360, and Larson v. Boston Elevated Ry., 212 Mass. 262, 98 N. E. 1048.

The

The defendant seasonably excepted to every step of this proceeding and contended that there had been a disagreement. judge then sent the jury out to ascertain and report whether any member of the panel had talked with anybody and presently was assured by them in open court that every juryman stated that he had not talked in any manner with anybody about the case. The jury thereupon were sent out for further consideration of the eighth question, and subsequently returned an answer assessing damages. The judge then ordered verdicts to be returned upon each of the three counts in the declaration in accordance with the answers. The charge of the judge on the question of due care is set out in full. No distinction was made as to the degree, kind, or extent of proof, of due care requisite for recovery upon the counts for conscious suffering and for death, and no exception was taken in this respect. Doubtless no such distinction was required under the circumstances. See Hudson v. Lynn & Boston R. R., 185 Mass. 510, 521, 71 N. E. 66. Therefore, when the jury had answered that servants of the defendant were negligent and that the plaintiff was entitled to recover a sum for the conscious suf

[7] The case at bar was tried with two other actions, one by the husband as the next friend of his daughter, and one by himself in his own right, to recover for injuries and loss arising from the same accident. The judge did not submit the cases for general verdicts, but by agreement of counsel ask-fering of the wife, every element necessary ed the jury to answer eight questions. Seven of these related (1) to the due care of the husband and (2) of the daughter, (3) to the negligence of the servants of the defendant, (4) the consequential damages of the husband and father for expenses for the sickness of his wife and daughter, (5) the damages of the daughter, (6) the conscious suffering of the wife, (7) the damages to the horse and wagon (which were the property of the wife). The eighth question was in these words:

"If the plaintiff, Owen C. Charles, as administrator, is entitled to recover for the death of Mrs. Charles, what sum is he entitled to recover for her death?"

The jury retired for consideration of the cases on Thursday, the eleventh day of October, it being agreed by counsel that:

"The answers to the questions may be regarded as a sealed verdict in that the formal ordering of the verdicts one way or the other

to require them, under the charge of the judge, to assess damages for her death had been found by the jury, and the only thing which they had not found was the amount of damages or penalty. But it was inevitable that some damages or penalty must be found, or their answers would be inconsistent. It was said in Mason v. Massa, 122 Mass. 477, at 480:

"It is a well-settled and long-established practice that a jury, when they have returned a finding that is incomplete and defective, may be sent out again in order to correct the error, even though they had separated after their first finding before they came into court. Pritchard v. Hennessey, 1 Gray, 294; Commonwealth v. Carrington, 116 Mass. 37. After a general finding for the plaintiff without an assessment of damages, they may be sent out again for the purpose of making such assessment. And this may be done although there may have been an adjournment of the court in the meantime. Chapman v. Coffin, 14 Gray, 454; Winslow v. Draper, 8 Pick. 170; Lawrence v. Stearns, 11 Pick. 501."

Further consideration by a jury after a | Bigelow, 44 N. H. 376; Evans v. Foss, 49 N. separation following the committal of a case H. 490; Produce Exchange Trust Co. v. Beibto them is not necessarily fatal. Where it is McManus v. Thing, 208 Mass. 55, 59, 94 N. E. erbach, 176 Mass. 577, 593–595, 58 N. E. 162; apparent that they have or may have pro- 293; Warner v. New York Central Railroad, ceeded upon a misconception of the princi-52 N. Y. 437, 440, 11 Am. Rep. 724; Hatch ples of law laid down for their guidance, the | V. Attrill, 118 N. Y. 383, 388, 23 N. E. 549. safe and proper course is for the court to instruct them again as to the law and request them to deliberate further. Kenney v. Habich, 137 Mass. 421, 423. It was said by Chief Justice Gray in Commonwealth v. Tobin, 125 Mass. 203, at 206 (28 Am. Rep. 220) as to the practice in civil cases when the jury have been permitted to separate after agreeing upon and sealing up a verdict:

In Pritchard v. Hennessey, 1 Gray, 294, 296, occur these words:

years.

* * *

"The practice of sending out a jury, when they return a finding that is absurd or defective, has existed more than four hundred It is objected by the plaintiff, that the jury could not be sent out in this case, because they had separated, after their first finding, before they came into court. But the cases cited by him do not support this objection; and the contrary appears from the cases of Edelen v. Thompson, 2 Har, & Gill. 31, Wolfran v. Eyster, 7 Watts. 38, and Sutliff v. Gilbert, 8 Ohio, 409. So where a jury separated after having agreed, and afterwards came into court with a sealed verdict, which one of the jurors refused to affirm, the court sent them out, and they agreed on a verdict, which the court refused to set aside. Bunn v. Hoyt, 3 Johns. 255. Douglass v. Tousey, 2 Wend. 352 [20 Am. Dec. 616]." Chapman v. Coffin, 14 Gray, 454; Levine v. Globe St. Ry. Co., 177 Mass. 204, 58 N. E. 685; Brown v. Dean, 123 Mass. 254, 267; Commonwealth v. Carrington, 116 Mass. 37, 39; Burrill v. Phillips, 1 Gall. 360, Fed. Cas. No. 2,200; Downer v. Baxter, 30 Vt. 467, 474; Armleder v. Lieberman, 33 Ohio St. 77, 31 Am. Rep. 530; Nims v.

See, also, Vennard v. McConnell, 11 Allen, 555, 562, 563, and Coke on Littleton, 227 b. While the interval between the separation and the reassembling of the jury was longer than has been intimated in some cases was permissble (Winslow v. Draper, 8 Pick. 170), there appears to be no reason to think that justice has not been done or that the defendant has suffered any prejudice. Great care was taken to be assured that in fact the interests of the parties and of the public to the end that right results be reached had not been jeopardized by anything which had occurred in the interval. The conduct of the

judge before directing the jury to consider the question further imports a finding that nothing had occurred during the interval of separation to imperil in the slightest degree the purity and absolute impartiality of the jury. The case at bar comes within the language of Chief Justice Shaw in Commonwealth v. Roby, 12 Pick. 496, at 516:

"It is not every irregularity which will render the verdict void and warrant setting it aside. This depends upon another and additional consideration, namely, whether the irregularity is of such a nature as to affect the impartiality, purity and regularity of the verdict itself."

There is nothing in the point decided in Spencer v. Williams, 160 Mass. 17, 35 N. E. 88, which requires a different result. The same is true of Commonwealth v. Durfee, 100 Mass. 146, and Commonwealth v. Dorus, 108 Mass. 488, for the reasons pointed out in Commonwealth v. Tobin, 125 Mass. 203, at 206, 28 Am. Rep. 220.

Exceptions overruled.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

COMMISSIONER.

ANALYSIS BY TAX

Income Tax Act (St. 1916, c. 269) § 5, taxing at 12 per cent. income from a profession, employment, trade, or business, and providing that interest and dividends taxable under section 2 shall not be taxed under section 5, authorizes the tax commissioner to analyze the income of a taxpayer derived from his profession, employment, trade, or business, and to tax at 6 per cent. so much of it as is income within section 2, imposing the rate of 6 per cent. on interest from money at interest, and the balance as income from profession, employment, trade, or business at 12 per cent.

2. TAXATION 3631⁄2, New, vol. 18 Key-No. Series INCOME TAX-RECEIPTS OF PAWNBROKER "INTEREST FROM MONEY AT INTER

EST.

Under Income Tax Act (St. 1916, c. 269) §§ 2, 5, interest amounting to $871 received by petitioner for abatement of tax in the course of his business as a pawnbroker was taxable at the rate of 6 per cent. under section 2, on the ground that the $871 was interest from money at interest.

Report from Superior Court, Suffolk County; Frederic H. Chase, Judge.

Petition for abatement of income tax by Meyer Goldman against William D. T. Trefry, Tax Commissioner. On report without decision to the Supreme Judicial Court. Petition dismissed.

E. N. Hill and Julius Nelson, both of Boston, for petitioner. Henry C. Attwill, Atty. Gen., and Wm. Harold Hitchcock, Asst. Atty. Gen., for respondent.

LORING, J. The question in this case is whether money received by a pawnbroker by way of interest on loans made by him in the course of his business should be taxed at 6 per cent. under section 2 of the income tax act (St. 1916, c. 269), or at 11⁄2 per cent. under section 5 of that act.

course of his business and for that reason
the same words in St. 1916, c. 269, § 2, cl.
(a), do not include money so lent. The sec-
ond contention of the petitioner is that in-
terest received on money lent by him as a
pawnbroker is taxable under section 5 and
not under section 2 because it is money "re-
ceived from dealing and trafficking with
tangible personal property" and that the
proposition that it is money "received from
dealing and trafficking with tangible person-
al property" was established by the deci-
sions of this court before the income tax act
Both con-
here in question was enacted.
tentions are based upon the decision made
in Boston Loan Co. v. Boston, 137 Mass. 332.
We do not find it necessary to determine
how far the conclusion drawn in the peti
tioner's first contention is or is not correct.
The second contention is founded on a misap-

prehension of the decision made in Boston
Loan Co. v. Boston, ubi supra. What was
decided in that case was that a pawnbrok-
er's place of business was a shop within
Gen. St. c. 11, § 12, cl. 1, because in lending
money at interest a pawnbroker carries
on the business of trafficking in money and
the pledgee's title to tangible personal prop-
erty acquired by him as security for money
so lent is a part of his stock in trade in the
same sense that the fixtures at his place
of business are a part of his stock in trade
and taxable as such in the town where he
had his place of business or shop on the 1st
day of May within Gen. St. c. 11, § 12, cl. 1.
It was not there decided nor does it follow
from what was there decided that interest
received on loans made by a pawnbroker is
not in fact income received from money at
interest, much less that such interest could
not be treated by the Legislature as such.

There would be great force in the proposition that interest received on loans made by a pawnbroker or (as in the case at bar) by a pawnbroker and dealer in secondhand articles in the course of his business as a pawnbroker is income from a "profession, employment, trade or business" within section 5 and not income derived by way of "interest from * * money at interest" within section 2, cl. (a), were it not for the clause at the end of section 5 which provides that "interest and dividends taxable under section 2 of this act shall not be tax

The petitioner, who is a pawnbroker and dealer in secondhand articles, received $871 as interest on loans made by him as a pawnbroker. A tax was assessed upon him at the rate of 6 per cent. on the ground that the $871 was received by him as "interest from * * * money at interest" within St. 1916, c. 269, § 2, cl. (a). The petition now before us is brought to obtain an abate-ed under this section." ment of that tax. If the $871 was taxable [1] This clause at the end of section 5 is under section 2 no tax was due from the petitioner because the net income received by the petitioner from his whole business did not exceed $2,000.

The petitioner's first contention is that under and by force of the decisions of this court construing the tax acts in force before the enactment of the income tax act here in question "money at interest" did not include money lent by a pawnbroker in the

a direct implication that interest and dividends received as part of an income "derived from professions, employments, trade or business" can be taxed as income under section 2. In other words this clause at the end of section 5 is a direct implication that the tax commissioner can analyze the income "derived from professions, employments, trade or business" and tax at 6 per cent. so much of it as is income within sec

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tion 2 and the balance of that income "from | Workmen's Compensation Act. The employć professions, employments, trade or busi- received mortal injuries in the course of and ness" at 11⁄2 per cent. arising out of his employment on November 2,

This consideration is decisive of the ques- 1916. The widow of the employé and the intion now before us.

[2] It follows that the tax imposed upon the interest amounting to $871 received by the petitioner in the course of his business as a pawnbroker was taxable under St. 1916, c. 269, § 2, and the entry must be: Petition dismissed.

DEMPSEY'S CASE.

surer thereafter entered into an agreement for compensation under the act, a memorandum of which was filed with, and on May 17, 1917, approved by the Industrial Accident Board, and no appeal was taken therefrom. St. 1911, c. 751, pt. 3, § 4, as amended. Payments were made in accordance with the terms of that agreement up to August 9, 1917, when the insurer, without the assent of the dependent or the employé, and without the approval of the Industrial Accident Board (St. 1916, c. 90,

LONDON GUARANTEE & ACCIDENT CO., § 1), ceased to make payments. The depend

Limited, v. DEMPSEY.

(Supreme Judicial Court of Massachusetts.

Suffolk. June 26, 1918.)

1. MASTER AND SERVANT 418(32)-WORK-
MEN'S COMPENSATION ACT-SUSPENSION OF
DECREE PENDING APPEAL-DISCRETION OF
SINGLE JUSTICE.

ent thereupon filed in the superior court a petition with appropriate allegations setting forth a copy of the agreement and of the approval of its terms by the Industrial Accident Board, and praying for the entry of a decree and the issuance of an execution for the payments due under the agreement. St. 1911, c. 751, pt. 3, § 11, as amended by St. 1912, c. 571, § 14, and St. 1917, c. 297, § 7. A decree was entered in accordance with the pe

Whether a single justice of the Supreme Judicial Court, pursuant to St. 1915, c. 132, should enter an order for suspension pending appeal of decree of the superior court ordering entry of decree for the dependent under Work-tition and execution ordered. The insurer men's Compensation Act (St. 1911, c. 751, amended by St. 1912, c. 571) and issuance of execution thereon rested in the discretion of the single justice.

claimed an appeal in due form. The insurer then filed in the Supreme Judicial Court a petition alleging, in substance, that it had enter2. MASTER AND SERVANT 418 (2)-WORK-ed into the agreement and had made the payMEN'S COMPENSATION ACT-APPEAL FROM DECREE ON MEMORANDUM OF AGREEMENT. Workmen's Compensation Act, pt. 3, § 11, as amended, expressly provides that there shall be no appeal from a decree of the superior court based on a memorandum of agreement approved by the Industrial Accident Board, and on such an attempted appeal the merits of the decree cannot be examined.

Appeal from Superior Court, Suffolk County.

Appeal from Supreme Judicial Court, Suffolk County.

Proceedings under the Workmen's Compensation Act by Agnes Dempsey for compensation for the death of her husband, Daniel E. Dempsey, opposed by T. Owen Tully, the employer, and the London Guarantee & Accident Company, Limited, the insurer. Compensation was awarded, the widow petitioned for entry of decree and issuance of execution, and from decree of the superior court for her, the insurer appealed, and applied for suspension of decree pending appeal. From an order made by a single justice of the Supreme Judicial Court, the widow appeals. Order affirmed, and insurer's appeal from the decree of the superior court dismissed.

R. H. Smith and Wm. G. Thompson, both of Boston, for plaintiff. H. S. Avery, of Boston, for insurer.

RUGG, C. J. The material facts disclosed by the pleadings in these records are that Daniel E. Dempsey was an employé of T. Owen Tully, who was a subscriber under the

ments until August 8, 1917, when for the first time its attention was called to the judgment in Southern Pacific Co. v. Jensen, 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, Ann. Cas. 1917E, 900, decided in May, 1917, which it interprets as holding that the Workmen's Compensation Act has no bearing upon accidents occurring on navigable waters; that the mortal injury to the deceased employé occurred upon the steamship Devonian while lying at the wharf in the navigable waters of Boston Harbor, and that hence it was not liable under the act, and praying that the decree of the superior court be suspended until the merits of its contentions could be decided by this court.

[1] There was no error of law in the conditional order of the single justice suspending the decree of the superior court under St. 1915, c. 132. That statute provides in effect that orders and decisions of the Industrial Accident Board and decrees of the superior court, decisions of the arbitration committee from which no appeal has been taken, and agreements approved by the board, shall have effect notwithstanding appeal unless otherwise ordered by a justice of this court. It is a strong exercise of legislative power to compel a party to pay out money upon an alleged obligation which is contested and undecided by an authoritative adjudication. The manifest purpose of the statute is to confer upon the single justice jurisdiction to suspend, coextensive with the mandate to comply with, the operations of the act before their validity has been finally

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