the giving of this instruction was not so, 2. Intoxicating liquors 131-No distinction prejudicial to appellant as to be cause for a reversal. between manufacture of beer for home consumption and for sale. Statute prohibiting manufacture of intoxicating liquors without obtaining permit or authority, makes no distinction between manuufacture of beer for sale. facture of beer for home consumption and man 3. Criminal law 763, 764(7)—Instruction held to submit issue of defendant's guilt or innocence. Instruction, in prosecution for unlawfully manufacturing liquors without permit, that as matter of law on agreed facts jury would be warranted in returning and finding verdict of guilty, held not direction to return verdict of guilty, but to submit issue of guilt or innocence. The court, by its sixth instruction, referred to appellant's fourth paragraph of answer, which alleged that appellee in the application stated that the automobile was mortgaged to Walter Merritt for $700; that the policy was issued on said application payable to Merritt as his interest might appear; that thereafter, when said policy was delivered to appellee he stated that the mortgage had been paid, and refused to accept the policy, unless said clause be removed; that appellant, believing and relying on said statement, removed said clause from the policy; that it afterward learned that said mortgage had not been paid; that the statements of appellee in relation thereto were false; and that it had tendered to him the amount of the premiums he had theretofore paid, and had kept its tender good by bringing the money fully manufacturing intoxicating liquor, withinto court for his use. The court by said in-out obtaining permit or authority, and he exstruction No. 6 instructed the jury that said cepts. Exceptions overruled. answer did not constitute a defense. [9] Appellant contends this was error, up on the theory that there was evidence to substantiate the alleged fraud on the part of appellee after the policy was issued. There was no error in the action of the court in the giving of this instruction. The policy sued on and introduced in evidence contained the clause making the policy payable to Mr. Merritt as his interest might appear. The evidence shows that he held a mortgage at the time the policy was issued, and that the same was not paid until after the fire. If it be conceded that appellee stated that the mortgage had been paid, the evidence conclusively shows that appellant in issuing the policy did not rely upon such statement, and that the policy was not void by reason of fraud. Judgment affirmed. COMMONWEALTH v. GREEN. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1925.) 1. Intoxicating liquors 131-Crime of manufacturing intoxicating liquor without permit is committed if spirituous or intoxicating liquor is "manufactured"; "make." Crime of unlawfully manufacturing intoxicating liquors without obtaining permit or authority is committed if spirituous or intoxicating liquor is manufactured, without reference to intent of manufacturer or use to which it is to be put; "manufacture" being synonymous with "make." [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Make; Manufacture.] ter County; D. F. Dillon, Judge. David T. Green was convicted of unlaw C. B. Rugg, Asst. Dist. Atty., of Worcester, for the Commonwealth. J. H. Meagher, E. Zaeder, and J. L. Bianchi, all of Worcester, for defendant. CROSBY, J. The defendant is charged under St. 1923, c. 370, with having unlawfully manufactured intoxicating liquors without obtaining a permit or authority, as required by the laws and regulations of the United States. The case was submitted to a jury in the superior court on an agreed statement of facts. The defendant filed a motion that the jury be instructed to return a verdict of not guilty; the motion was denied and the defendant excepted. The trial judge instructed the jury in substance that as matter of law on the agreed facts they would be warranted in returning a verdict of guilty, and "you [the jury] are warranted in finding a verdict of guilty." To these instructions the defendant excepted. The jury returned a verdict of guilty. [1, 2] It appeared from the agreed statement of facts that the defendant had brewed beer, in his own home solely for his own use; that it contained more than 2.75 per cent. of alcohol by weight at 60 degrees Fahrenheit, and was therefore intoxicating liquor under the definition of the statute; and that he had no federal permit or authority therefor. The verb "manufacture" is synonymous with "make." To manufacture is to make wares or other products by hand, machinery or other agency. It may also be defined to work, as raw or partly wrought materials into suitable forms for use. It is agreed that the defendant prepared the ingredients and brewed the beer found in the apartment occupied by him. Upon these facts it is plain that the beer was manufactured by him in (149 N.E.) violation of the statute. The fact that it was made only for home use and for the purpose of consumption there does not exempt the defendant from liability. The crime is committed if spirituous or intoxicating liquor is manufactured, without reference to the intent of the manufacturer or the use to which it is to be put. State v. Marastoni, 85 Or. 37, 165 P. 1177. The statute in terms makes no distinction between the Exceptions from Superior Court, Worcester County; G. A. Flynn, Judge. Action of tort by Mabel Coldiron, administratrix, against the Worcester Consolidated Street Railway Company, to recover for death of plaintiff's intestate. Verdict for plaintiff, and defendant excepts. Excep tions overruled. L. E. Stockwell, of Worcester (A. G. Berg manufacture of beer for home consumption quist, of Worcester, on the brief), for plain and the manufacture of beer for sale. To decide otherwise would be to read into the statute an exception which is not to be found there either in express terms or by fair implication. As the language of the statute is unequivocal, it is unnecessary to refer to the record of proceedings in the House of Representatives in connection with its enact ment, cited in the brief of the commonwealth. [3] The defendant contends that the instruction of the court was in effect a direction to return a verdict of guilty. This contention cannot be sustained. The judge did not direct a verdict of guilty, but told the jury in substance that upon the agreed facts they would be warranted in arriving at that verdict. The issue of the defendant's guilt or innocence was submitted to them. Commonwealth v. Sookey, 236 Mass. 448, 452, 128 N. E. 788, 11 A. L. R. 1230. Exceptions overruled. tiff. C. C. Milton, of Worcester (S. B. Milton, of Worcester, on the brief), for defendant. SANDERSON, J. This is an action of tort to recover damages for the death of the plaintiff's intestate, William Newell, a boy three years and ten months old, who died without conscious suffering from injuries received from being run over by a car of the defendant. The boy lived with the plaintiff, his mother, on the third floor of a threestory building which sets back from Franklin street in Worcester about 125 feet and somewhat in the rear of another house. The tracks are near the center of the street in front of the house. There is a fence around the whole yard and also between the plaintiff's house and that in front. The jury could have found that the boy had never gone on the street alone before; that he had been in the habit of playing in the yard and had been there about 15 minutes before the accident and the mother had looked over the piazza and seen him there playing five min COLDIRON V. WORCESTER CONSOL. ST. utes before she received word that he had RY. CO. (Supreme Judicial Court of Massachusetts. Worcester. Oct. 16, 1925.) 1. Negligence 85 (3)-Boy three years and ten months old presumed to be incapable of exercising care. A boy, three years and ten months old, is presumed to be incapable of exercising care for himself. 2. Negligence 122(1) Burden of proving mother's due care of child killed was on plaintiff. In suit by mother for death of boy three years and ten months old, from being run over by street car, burden of proving mother's due care, required by G. L. c. 229, § 3, was on plaintiff. 3. Negligence 136 (30) Whether mother exercised due care of child killed held for jury. In action for death of boy 3 years and 10 months old run down by street car evidence held sufficient as against defendant's motion for directed verdict to show his mother as custodian, exercised care, required by G. L. c. 229, § 3; fact that she left child in inclosed yard where he was accustomed to play without looking at him for five minutes, not being inconsistent with finding of her exercise of such care. been killed; that she was then in his room picking up toys; and that just before the accident the child was sitting in the car tracks piling up dirt or sand. The only exception is to the refusal of the trial judge to allow the defendant's motion for a directed verdict. [1-3] It is conceded by the defendant that the jury could have found the motorman negligent. The child is presumed to be incapable of exercising care for himself. Garabedian v. Worcester Consolidated Street Railway, 225 Mass. 65, 113 N. E. 780; Sullivan v. Chadwick, 236 Mass. 130, 127 N. E. 632. The evidence would not justify the jury in finding that the due care of an adult was being exercised by the child. Sullivan v. Chadwick, supra. The only question for decision is whether the evidence justified the finding that the mother was in the exercise of the care required by G. L. c. 229, § 3. The burden of proving the mother's due care was on the plaintiff. Garabedian v. Worcester Consolidated Street Railway, supra; Travers v. Boston Elevated Railway, 217 Mass. 188, 104 N: E. 383. The jury may find that a custodian has exercised the care required by the statute in an action for death even though at the moment of the accident she is attending to her other duties. For a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. Master and servant 341-Defendant's re sponsibility for letters to plaintiff's employer held for jury. In suit for alleged malicious and false state mother to leave her child between three and, cover, held sufficiently covered by instructions four years old in an inclosed yard where he given. has been accustomed to play without looking at him for five minutes while she is about her household duties, is not inconsistent with a finding that she was in the exercise of the care required by the statute. Powers V.ments made by defendant concerning plaintiff, Quincy & Boston Street Railway, 163 Mass. 5, 39 N. E. 345; Hewitt v. Taunton Street Railway, 167 Mass. 483, 46 N. E. 106; Ingraham v. Boston & Northern Street Railway, 207 Mass. 451, 93 N. E. 692. In the case of Marchant v. Boston & Maine Railroad, 228 Mass. 472, 117 N. E. 842, it appeared that the custodian had abandoned her duty to care for the child, and there was more than a temporary failure to perform it. The facts of that case distinguish it from the case here to be decided. The order denying the motion for a directed verdict was right. Exceptions overruled. GOULD v. KRAMER. (Supreme Judiical Court of Massachusetts. Franklin. Oct. 15, 1925.) 1. Evidence 179-Secondary proof of contents of letters held competent. Where letter from plaintiff's employer to defendant was out of jurisdiction of court, secondary proof of its contents was competent. 2. Master and servant 341-Whether defendant's daughter, in writing letter, acted at defendant's request, held for jury. Where plaintiff alleged defendant without cause, maliciously intending to injure him and his business, wrote or caused to be written to plaintiff's employer certain statements regarding him, whether, on evidence of defendant's son, defendant's daughter acted at his request or with his sanction in writing letters, held for jury. whereby latter lost contract of employment, whether defendant was responsible for statements made in letters written to plaintiff's employer by defendant's daughter held, under facts, for jury. 6. Master and servant 341-Silence of defendant as to statements in letters held for jury on question of responsibility therefor. In suit for alleged false statements made by defendant concerning plaintiff, by reason of which latter lost contract of employment, fact that defendant never disclaimed statements quoted in letter of manager of plaintiff's employer, but remained silent, held for jury on question of his responsibility for statements in letter written to employer by his daughter. 7. Master and servant 341-Admission of letters from plaintiff's employer to him not erroneous. In suit for alleged false statements made by defendant concerning plaintiff, whereby latter lost contract of employment, there was no error in admitting letter of manager of employer firm to plaintiff, requesting that he resign unless he could prevent firm's annoyance by such correspondence as defendant was subjecting it to. 8. Damages 48-Evidence of plaintiff's mental suffering held admissible on measure of damages. In suit for alleged false statements made by defendant concerning plaintiff, whereby latter lost contract of employment, evidence as to plaintiff's mental suffering held admissible on measure of damages. Exceptions from Superior Court, Franklin County; Winfred H. Whiting, Judge. Action of tort by Harold I. Gould against Abraham B. Kramer to recover for alleged 3. Master and servant 341-Formal notice malicious and false statements made by of discharge held unnecessary. defendant concerning plaintiff, by reason of which plaintiff lost contract of employment. Verdict for plaintiff, and defendant excepts. Exceptions overruled. C. Fairhurst and W. A. Davenport, both of Greenfield, for plaintiff. P. H. Ball and J. T. Bartlett, both of Greenfield, for defendant. BRALEY, J. The plaintiff, a mechanical engineer of much experience in various emgaged at a yearly salary of $3.900 by the ployments, was on February 23, 1923, enWestern Factory Insurance Association of Chicago, Ill., a company composed of 42 in surance companies throughout the United States. Its business was to inspect and take risks of mercantile factory buildings. The (149 N.E.) The letter thus referred to being out of plaintiff's duties were to inspect the buildings | is proposing that they live together outside the periodically, and go through the factories, law or is he in a position to and is offering leobtain design of buildings, and their location gal marriage?" and make plans. His connection with the company terminated April 3, 1923, and the present action is for damages on the ground that the defendant wrongfully procured his loss of employment. The second and third counts of the declaration having been waived, the case was submitted to the jury on the first count, which alleges: "That the defendant without justifiable cause maliciously intending, and designing to injure the plaintiff in his business, wrote or caused to be written to the plaintiff's employer certain statements regarding the plaintiff; that said statements were untrue which the defendant well knew, and that by reason thereof the plaintiff lost the benefit of his employment and was otherwise greatly damaged." The answer was a general denial, with averments that the statements were true and were published without malice. The action as the judge correctly instructed the jury was not for publishing a libel. The wrong charged is causing a pecuniary loss to the plaintiff without justifiable cause, and with a malicious purpose at the time to inflict it. Walker v. Cronin, 107 Mass. 555, 562; May v. Wood, 172 Mass. 11, 14, 51 N. | E. 191; McGurk v. Cronenwett, 199 Mass. 459, 461, 462, 85 N. E. 576, 19 L. R. A. (N. S.) 561. [1] The manager of the company on April 4, 1923, sent the plaintiff a letter containing the following statements: the jurisdiction of the court, secondary proof of its contents was competent. Topping v. Bickford, 4 Allen, 120. [2] The letter of the manager, which the defendant admitted having received, was transmitted to the plaintiff's mother, with a letter purporting to be signed by Mrs. A. L. Kramer. This letter and the signature were in the handwriting of Florence Kramer, a daughter of the defendant. In so far as material it reads: "In reply to the letter which I have sent to the firm by which Harold is employed I have received the enclosed letter. I am sending it to you hoping that you will answer it for I am sure you can write more effectively that I." But it does not appear that Mrs. Kramer had written to or received any letters from the plaintiff's employer, and the question whether, on the evidence of the defendant's son, Florence acted at the defendant's request, or with his sanction, was for the jury. [3] While it was undisputed that the plaintiff was married, but did not live with his wife, and had made the social acquaintance of the defendant's daughter Irene, the jury were warranted in specially finding that the statements, that the plaintiff had deserted his wife and was soliciting the defendant's daughter to live with him illicitly were false. The plaintiff testified, that he resigned be"Since the receipt of the first letter from Mr. cause of the manager's letter. It could be Kramer I have looked over your application for found that it was impossible for him to proa position with us and interviewed the heads tect the company from further attacks, and of the departments. * And I am strik- under such conditions the jury could say a ingly impressed with the thought, that your ed- formal notice of discharge was unnecessary. ucation, experience and personality combined It was a question of fact whether the statehad equipped you thoroughly for our work more ments to the company caused his loss of emthan has been the case with most people, including the writer, that have ever been connect-ployment, or whether regardless of any coercion he resigned of his own free will. ed with the association. * * To a certain extent your private life and affairs do not concern us, although we must admit, based on our own experience, that if a man has domestic troubles or those that might be classed as simply sex, his efficiency in the business is bound to be affected. We do not care to pass judgment on anything of this nature that you have experienced in the past or plan for the future, but we positively cannot be annoyed with such correspondence as we are being subjected to and unless you can wholly protect us against such correspondence we would certainly prefer that you sever your connection with us once." at [4] The eleventh request, that "if the plaintiff resigned his position without being asked to do so he cannot recover," was sufficiently covered by the instructions. Chipley v. Atkinson, 23 Fla. 220, 1 So. 934, 11 Am. St. Rep. 367, cited by the defendant, is not in conflict. [5] The defendant, however, also contends that the statements were in letters written to the company by Florence for whose conduct he is not responsible. The racial and religious differences between the parties need not be reviewed. The jury on conflicting evi The manager also had written the defend- dence, which was admissible as tending to ant acknowledging the receipt of― "your letter of the 15th in reference to Harold Gould. You say he has 'deserted a wife' and it would be interesting to know whether he is legally divorced. And further you say, 'He is inducing your daughter to leave her home and come to live with him.' Do you mean that he show his intent and state of mind (Commonwealth v. Trefethen, 157 Mass. 180, 31 N. E. 961, 24 L. R. A. 235; Inness v. Boston, Revere Beach & Lynn Railroad, 168 Mass. 433), could find that the defendant had said: "I will kill him.' I will leave no stone unturned. Every position he gets I will knock him out of. I am going to get him regardless of anything." "We'll get him if we go to the ends of the earth." The defendant called the plaintiff by telephone, and accused him of concealing his daughter, and "that he was coming to the plaintiff's house in Lynn to get her and to get the plaintiff to locate his daughter and then do away with him." During the conversation Mrs. Kramer intervened, and after calling the plaintiff a vile name, said: "If you don't keep away from my daughter I will be out there with Mr. Kramer and help him to get you." 520. In view of the defendant's avowed purpose, and the evidence relating to the origin and nature of the correspondence, the jury were properly left to determine under all the circumstances whether he was responsible for the letters which were in accordance with, and in fulfillment of that purpose. If the jury so found, there was no error in the admission of the letter of the manager to the plaintiff. Reed v. Ashburnham R. Co., 120 Mass. 43, 47; Ayer v. R. W. Bell Manufacturing Co., 147 Mass. 46, 16 N. E. 754; Lopes v. Connolly, 210 Mass. 487, 494, 97 N. E. 80, 38 L. R. A. (N. S.) 986. [8] The evidence as to the plaintiff's men The conversation was immediately resumed tal suffering was admissible when introduced by the defendant who said: on the measure of damages. The second count alleged, that "he suffered great men "I'll come to Lynn and kill you if it costs tal distress," and the first count, that "he me my life." The use of the telephone does not differen tiate this conversation from a conversation between Mrs. Kramer and the plaintiff in her husband's presence in which by the defendant's acquiescence she joined in his accusations. It was properly admitted. The defendant had caused the plaintiff to be investigated by a detective bureau, and the jury could find that while Florence was not shown to have been personally hostile, the defendant had a settled feeling of ill will, and such finding in connection with the finding, that the statements were false justified was otherwise greatly damaged." But, even if the second count did not go to the jury, the defendant had not moved for specifica tions under the first count, nor did he except to the instruction: "You may consider the injury, if any has been shown, to the mental feelings of the plaintiff which was the natural and necessary result of the discharge from the employment, if in fact there was mental suffering." first request that upon all the evidence the The motion for a directed verdict, and the plaintiff was not entitled to recover, were denied rightly, and no error appearing in the admission of evidence, or in the refusal of the other requests, the exceptions must be overruled. So ordered. WELLS v. COMMISSIONER OF PUBLIC (Supreme Judicial Court of Massachusetts. a conclusion that if the defendant was [6, 7] The fact that he never disclaimed the statements quoted in the letter of the manager but remained silent, could also be considered. Warner v. Fuller, 245 Mass. 1. Municipal corporations 216(1)-Appointment of city engineer for North Adams must be under civil service rules. Under Sp. St. 1918, c. 103, § 13, striking out St. 1895, c. 148, § 34, commissioner of public works of North Adams is authorized to appoint city engineer and since the position is by G. L. c. 31, § 5, excluded from rules of civil service, appointment to such office must be made thereunder. 2. Municipal corporations 218(2)-City engineer held not to have been removed as person holding permanent office in classified public service. Despite fact that city engineer was apwould therefore be entitled to protection of G. pointed to office under civil service rules, and L. c. 31, §§ 43-45, where, at time of his removal, he had not served six months' probationary period provided for by rule 18 of civil service |