rator in the threshing of grain, and if you find that said tractor engine did not do good work in said services or in any one of them, then and in that case I instruct you that the warranty contained in said order was broken by the defendant, and said defendant would be liable to plaintiff." Appeal from Superior Court, Suffolk County. Proceedings for compensation under the Workmen's Compensation Act by Frank S. McAllister, the employé, opposed by the Jordan Marsh Company, the employer, and It will be observed that this instruction the American Mutual Liability Insurance tells the jury that, if it finds the facts to be Company, the insurer. Compensation was as set out in the instruction, then the war-awarded, the award affirmed by the superior ranty contained in said order was broken by court, and from the decree the insurer apthe appellant, and it "would be liable to peals. Decree ordered affirmed. plaintiff." That part of the "warranty and agreement" which put upon appellee the necessity of doing certain things in order to avail himself of the benefits of said warranty are entirely ignored in said instruction, and appellant is made liable for the breach of its warranty, regardless of whether appellee performed the conditions of said agreement on his part to be performed, or whether the performance thereof had been waived by appellant. This instruction was, we think, without doubt both erroneous and prejudicial to appellant. There are other instructions objected to by appellant, and other questions presented in its brief, which we deem it unnecessary to discuss or determine. They will probably not arise upon another trial, or if they do, our disposition of the other questions will be a sufficient guide for their proper determination by the trial court. Judgment below reversed, with instructions to the trial court to grant a new trial, and for such other proceedings as may be consistent with this opinion. (229 Mass. 193) In re MCALLISTER. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 5, 1918.) 1. MASTER AND SERVANT 417(7) MEN'S COMPENSATION ACT EMPLOYMENT. WORK · CONTRACT OF The contract of employment not having been reduced to writing, its terms are to be ascertained from the evidence reported by the committee on arbitration and the cross-examination of the alleged employé in regard to his work and relation to the alleged employer introduced at the hearing on review. 2. MASTER AND SERVANT 361-WORKMEN'S COMPENSATION ACT-"EMPLOYÉ." A journeyman paper hanger, hired by the foreman of a department store's wall paper department, and directed by the foreman, whenever such work was required by a purchaser, to go to the purchaser's residence and hang paper, was an "employe" of the department store, entitled to recover compensation under the Workmen's Compensation Act (St. 1911, c. 751) for injuries in the course of his employment, though his name did not appear on the store's pay roll of employés, as he was paid by the roll of wall paper at varying prices, with expenditures for car fares and paste, receiving a check weekly for the amount, since the decisive test as to employment is whether the claimed employer retained authority to direct or control the work or gave it to claimant. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Employé.] Sawyer, Hardy, Stone & Morrison, of Boston (E. C. Stone, of Boston, of counsel), for appellant. Fredk. W. Mansfield and Edmund R. Mansfield, both of Boston, for appellee. BRALEY, J. [1] The injury complained of was caused by a fall from a stepladder while the claimant was at work in the store of Jordan Marsh Company, a subscriber, hanging paper by direction of the foreman. The insurer contends that the claimant was an independent contractor within the meaning of St. 1911, c. 751, pt. 3, § 17, which confers on the employés of a contractor who has engaged "to do the subscriber's work," the same right to compensation as if they had been immediately employed by the subscriber, but makes no provision for the contractor where he performs the work himself. The question for decision therefore is wheth er at the time of the accident the claimant was an employé of the company. The contract of employment not having been reduced to writing, its terms are to be ascertained from the evidence reported by the committee on arbitration, and the "cross-examination of the alleged employé in regard to work and relation to the alleged employer," which was introduced at the hearing on review. Carnig v. Carr, 167 Mass. 544, 46 N. E. 117, 35 L. R. A. 512, 57 Am. St. Rep. 488. [2] It appears that the claimant, a journeyman paper hanger was hired by the foreman of the company's wall paper department, and whenever such work was required by a purchaser the foreman who "gave claimant all his orders and instructions" and "approved his bills," directed him to go to the purchaser's residence, and hang the paper. But his name did not appear on the company's pay roll of employés, as he was paid by the roll at a varying price, with all expenditures for car fares and paste, and received weekly by mail a check for the amount. The terms and mode of payment however are not the decisive test. Morgan v. Smith, 159 Mass. 570, 584, 35 N. E. 101. It is whether the employer retained authority to direct and control the work, or had given it to the claimant. Forsyth v. Hooper, 11 Allen, 419, 421, 422. While the claimant testified that while at work "he was his own boss," his services manifestly formed For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes If plaintiff's rights, on two bonds given by defendant to dissolve attachments, were alternative or inconsistent, and he erroneously understood he had two such rights, and attempted to choose one, to which he was not entitled, he is not barred from exercising the other, if entitled to it. Report from Superior Court, Suffolk County; Frederick Lawton, Judge. Action by Jacob Cinamon against the St. Louis Rubber Company and its trustee. -Plaintiff obtained verdict against the principal defendant, and moved for general or special judgment against it, as a bankrupt, to enable him to bring suit against the sureties on a bond given to dissolve an attachment. Special judgment for plaintiff ordered. On report. Special judgment ordered to be entered. part of the company's regular business con- 13. ELECTION OF REMEDIES 11-MISTAKEN ducted by itself, and the placing of the paATTEMPT TO CHOOSE ONE OF Two INCONSISTENT RIGHTS. per by his skill and labor inured to its benefit. The time and place of labor was not constant, but were determined by the employer as required by the demands of customers. If while the work was in process dissatisfaction arose, or damage was being done, the customer would be obliged to resort not to him, but to the company for further directions or redress. It cannot be said on the record as matter of law, that the Industrial Accident Board was not warranted in finding, that the parties never intended the claimant should have the absolute right to hang the paper when and as he pleased regardless of any supervision by the company, which alone would be responsible in damages for unperformed or imperfect work. And that whenever and wherever necessary the power to direct what should be done in såtisfaction of the purchaser's contract, the parties contemplated and understood was lodged with, or retrained by the company, whose orders given through the foreman the claimant uniformly obeyed and executed. Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N. E. 218; Samuelian v. Am. Tool & Machine Co., 168 Mass. 12, 46 N. E. 98; Driscoll v. Towle, 181 Mass. 416, 419, 63 N. E. 922; Wakefield v. Boston Coal Co., 197 Mass. 527, 83 N. E. 1116; Bowie v. Coffin Valve Co., 200 Mass. 571, 577, 578, 86 N. E. 914; Clancy's Case, 228 Mass. 316, 117 N. E. 347. The decree awarding compensation should be affirmed. St. 1911, c. 751, pt. 2, §1. So ordered. (229 Mass. 33) CINAMON v. ST. LOUIS RUBBER CO. et al. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 3, 1918.) 1. JUDGMENT 569-RES JUDICATA-MOTION FOR JUDGMENT ON BOND GIVEN TO DISSOLVE ATTACHMENT. Where defendant gave plaintiff two bonds, with different sureties, to release attachments made on the writ, one being a common-law and the other a statutory bond, denial of plaintiff's motion, made under Rev. Laws, c. 177, § 25, for special judgment on the common-law bond, was not res judicata and a bar to an action on the statutory bond, being in the nature of an interlocutory judgment, decree, or order, since, in order that the doctrine of res judicata may apply as a bar to a subsequent proceeding, it must appear from the record alone, or as supplemented by other evidence, that the issue was considered and determined by the court on the merits. 2. ELECTION OF REMEDIES 3(4) MOTION FOR SPECIAL JUDGMENT ON BOND GIVEN TO DISSOLVE ATTACHMENT. Where defendant gave plaintiff a commonlaw bond and a statutory bond, with different sureties, to release attachments, by moving for special judgment on the common-law bond, plaintiff did not elect to pursue one of two alternative and inconsistent remedies, so that he could not, after denial, move for such judgment on the statutory bond. Jas. E. Kelley and David Flower, both of Boston, for plaintiff. David Stoneman, Alex. I. Stoneman, Alex. G. Gould, and Shirley P. Graves, all of Boston, for sureties. CROSBY, J. The plaintiff obtained a verdict against the principal defendant in an action brought to recover damages arising from a wrongful discharge under a contract of employment. The facts may be briefly stated as follows: The Paul Revere Trust Company was named as trustee, and its answer disclosed funds belonging to the principal defendant. The defendant filed a bill of exceptions, which was allowed, but dismissed January 2, 1917. On February 11, 1916, the defendant gave a bond with sure ties to dissolve the attachment of funds in the hands of the trustee, which bond was approved by a master in chancery and filed in court February 12, 1916. On May 15, 1916, the defendant was adjudicated a bankrupt; it was discharged in bankruptcy November 29, 1916. The report of the judge contains the following statement: "After a verdict, the plaintiff obtained a special precept of attachment, January 26, 1916, under which personal property was attached. On the defendant's promise to give a bond, the attachment was ordered dissolved by the plaintiff. The bond not being furnished, a second special precept was asked and issued February 7, 1916. The defendant thereupon gave to the plaintiff a bond with sureties, and on the plaintiff's order the attachment was released by the officer. This bond was retained by the plaintiff, but was not filed in court. On January 15, 1917, the plaintiff filed a motion for special judg ment. In support of his motion, he stated orally that he relied on this last named common-law bond, and produced it and offered it in evidence in court; he did this under a misapprehension on his part that the said bond was the one given to dissolve the attachment by trustee process on the fund in the Paul Revere Trust Company's hands. On said motion, the following order was indorsed, after hearing: 'Jan. 26, 1917. Denied after hearing.' 999 The plaintiff appealed and excepted to the order denying the motion, but on May 12, 1917, he waived the appeal and claim of exception. On February 7, 1917, the plaintiff filed a motion for a general or special judgment against the bankrupt to enable the plaintiff to bring an action against the sureties on the statutory bond given to dissolve the attachment of the funds in the hands of the trustee. The sureties, who had been allowed to intervene and who had suggested the bankruptcy of the principal defendant, opposed this motion, and contended that the denial of the motion for a special judgment on the common-law bond was res adjudicata and a bar to an action upon the statutory bond. The judge of the superior court before whom both motions were heard, ruled: "That the order denying the first motion is not a final judgment or decree, but is in the nature of an interlocutory judgment, decree or order, and refused the sureties' requested rulings. To this ruling and to the refusal of the court to make the rulings requested by them the sureties duly excepted. [1] The ruling of the presiding judge was correct. The plaintiff held two bonds each given to him by the defendant to release attachments that had been made upon the writ. These bonds were separate and independent instruments and vested in the plaintiff two independent and distinct causes of action. The denial of a motion made under R. L. c. 177, § 25, for a special judgment upon the common-law bond, was a decision upon an interlocutory matter and was addressed to the sound discretion of the court. The ground for the denial of this motion does not appear in the record, but whether due to the failure of the plaintiff to prove the execution of the bond or for any other reason, it is plain that it cannot be regarded as a final adjudication upon the merits and binding upon the parties in all subsequent proceedings, unless reversed, or modified. There would seem to be no legal objection to the allowance by the court for proper cause of the renewal of a motion previously denied. Waucantuck Mills v. Magee Carpet Co., 225 Mass. 31, 113 N. E. 573; Riggs v. Pursell, 74 N. Y. 370. In order that the doctrine of res adjudicata may apply as a bar to a subsequent proceeding, it must appear, either from the record alone or from the record supplemented by other evidence, that the issue was considered and determined by the court upon the merits. Foye v. Patch, 132 Mass. 105; Corbett v. Craven, 196 Mass. 319, 82 N. E. 37; Institute for Savs. in Newburyport v. Puffer, 201 Mass. 41, 87 N. E. 562. [2, 3] There would be no sense or principle in a rule which would hold that the plaintiff by filing a motion for a special judgment upon one of the bonds is precluded from maintaining an action upon the other because the first motion had been denied. The two bonds created independent liabilities; besides, the sureties on them were not identical. Nor can the plaintiff be precluded from recovery upon the ground that by reason of filing his first motion he elected to pursue one of two alternative and inconsistent reme- E. 859, 27 L. R. A. (N. S.) 808; Doucette v. The ruling made by the presiding judge (229 Mass. 14) COMMONWEALTH v. TITCOMB. (Supreme Judicial Court of Massachusetts. Suffolk. Jan. 2, 1918.) 1. CONSTITUTIONAL LAW 208(9)-DISCRIMINATION-PRODUCERS AND DEALERS IN MILK -STATUTE-CONSTITUTIONALITY. Rev. Laws, c. 56, §§ 57, 62, as amended by St. 1910, c. 641, §§ 1, 2, providing that a milk producer shall not be liable to prosecution because the milk produced by him is not of good standard quality, unless the milk was taken on his premises, or in his possession, or under his control, by an inspector of milk, a collector of milk samples, or by an agent of the dairy bureau or of the state board of health, and a sealed sample given to him, nor unless he shall fail to bring the milk produced by him to the legal standard for milk solids and milk fat within 20 days after written notice that the sample taken was below standard, etc., is not violative of rights secured by the federal Constitution, in that it makes an unfair and unreasonable classification. 2. FOOD 1-PURITY OF MILK-CLASSIFICATION OF VENDors-Statute-CONSTITUTIONALITY. Rev. Laws, c. 56, §§ 57, 62, as amended by St. 1910, c. 641, §§ 1, 2, classifying vendors of milk, in respect to their criminal liability for selling milk below standard, into those who are producers and those who are not, is not violative of the Constitution of Massachusetts as resting on an immaterial, unreasonable, or ar bitrary distinction, since any statute rationally adapted to the end of securing the purity and preserving unimpaired the natural qualities of milk, and securing it from adulteration, is within the power of the Legislature. Exceptions from Superior Court, Suffolk County. Complaint by the Commonwealth against Charles W. Titcomb for having in possession with intent to sell milk not of good standard quality, or milk from which the cream had For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes been removed. There was verdict of guilty, and defendant excepts. Exceptions overruled. A. C. Webber, Asst. Dist. Atty., of Boston, for the Commonwealth. Cornelius A. Parker, of Boston, for defendant. RUGG, C. J. The issue presented in this case is the constitutionality of R. L. c. 56, §§ 57 and 62, as amended by St. 1910, c. 641, 88 1 and 2. Section 57 in substance imposes a penalty upon every person who, by himself, his servant or agent, or as the servant or agent of another, sells, exchanges or delivers, or has in his possession with intent to sell or deliver milk "which is not of good standard quality," a standard established by sections 55 and 56 of the same chapter as amended by St. 1908, c. 643 (see now St. 1917, c. 189), and not now questioned. Com. v. Wheeler, 205 Mass. 384, 91 N. E. 415, 137 Am. St. Rep. 456, 18 Ann. Cas. 319. Section 62, as amended, is in these words: not conform to the statute standard. That statute was held not to violate any rights secured by the federal Constitution. It there was said: "If we could look no farther than the mere act of selling, the injustice of the law might be demonstrated, but something more must be considered. Not only the final purpose of the law must be considered, but the means of its administration-the ways it may be defeated. Legislation to be practical and efficient must regard this special purpose as well as the ultimate purpose. The ultimate purpose is that wholesome milk shall reach the consumer, and it is the conception of the law that milk below a certain strength is not wholesome, but a difference is made between milk naturally deficient and milk made so by dilution. It is not for us to say that this is not a proper difference, and regarding it the law fixes its standard by milk in the condition that it comes from the herd. It is certain that if milk starts pure from the producer it will reach the consumer pure, if not tampered with on the way. To prevent such tampering the law is framed and its penalties adjusted. As the standard established can be proved in the hands of a producing vendor, he is exempt from the penalty; as it cannot certainly be proved in the hands of other vendors so as to prevent evasions of the law, such vendors are not exempt. In the one case the source of milk can be known and the tests of the statute applied; in the other case this would be impossible, except in few instances." "A producer of milk shall not be liable to prosecution for the reason that the milk produced by him is not of good standard quality unless such milk was taken upon his premises or while in his possession or under his control by an inspector of milk, by a collector of samples of milk, or by an agent of the dairy bureau In that opinion the court did not even reor of the state board of health, and a sealed fer to Connolly v. Union Sewer Pipe Co., 184 sample thereof was given to him, nor unless he shall fail to bring the milk produced by him to U. S. 540, 565, 22 Sup. Ct. 431, 46 L. Ed. 679, the legal standard for milk solids and milk fat relied on by the defendant. In numerous within twenty days after written notice has other decisions that case has been distinguishbeen sent from the officer taking said sample ed and various classifications have been upthat it is below said standard. At any time after the said period of twenty days allowed the held against attack on the ground of inequalproducer to bring his milk to the legal stand-ity or discrimination. Adams v. Milwaukee, ard has elapsed the officer taking the first sample may take a second sample, and if it shall be found to be below the legal standard for milk solids and milk fat prosecution may follow." 228 U. S. 572, 33 Sup. Ct. 610, 57 L. Ed. 971; District of Columbia v. Brooke, 214 U. S. 138, 29 Sup. Ct. 560, 53 L. Ed. 941; International Harvester Co. v. Mo., 234 U. S. 199, 34 Sup. Ct. 859, 58 L. Ed. 1276, 52 L. R. A. (N. S.) 525; Chicago, Terre Haute & Southeastern Ry: v. Anderson, 242 U. S. 283, 37 Sup. Ct. 124, 61 L. Ed. 302; Ozan Lumber Co. v. Union County Bank, 207 U. S. 251, 256, 28 Sup. Ct. 89, 52 L. Ed. 195; McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206, 53 L. Ed. 315; Keokee Coke Co. v. Taylor, 234 U. S. 224, 34 Sup. Ct. 856, 58 L. Ed. 1288; Hall v. Geiger-Jones Co., 242 U. S. 539, 555-557, 37 Sup. Ct. 217, 61 L. Ed. 480, Ann. Cas. 1917C, 643; Booth v. Indiana, 237 U. S. 391, 397, 35 Sup. Ct. 617, 59 L. Ed. 1011; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78, 31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 35 Sup. Ct. 167, 59 L. Ed. 364; Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 33 Sup. Ct. 441, 57 L. Ed. 730. See Tanner v. Little, 240 U. S. 369, 380–384, 36 Sup. Ct. 379, 60 L. Ed. 691. [1] This statute is assailed as being arbitrarily discriminatory in favor of the producer of milk and against the seller who is not a producer, and as making an unfair and unreasonable classification, and as being violative of rights secured by the Constitution of the United States. So far as the federal Constitution is concerned, these contentions of the defendant seem to us to be disposed of adversely by the decision of St. John v. New York, 201 U. S. 633, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 Ann. Cas. 909. The statute of New York there under consideration prohibited under penalty the sale of “adulterated milk," a term so defined as to include not only milk to which foreign matter had been added or from which cream had been removed, but also milk in its natural and pure state deficient in certain percentages of milk solids and fat, but altogether exempted from its operation producers of milk whose herd of cows naturally produced milk when mixed falling [2] The statute is not in contravention of below the percentages of solids and fat re- any provision of the Constitution of this quired by the statute. In substance and ef- Commonwealth. The statute is designed to fect that statute provided that a producer of protect and promote the public health. Unmilk might freely sell milk in its natural der present conditions of life milk is an esstate, while all others were subject to a pen-sential article of food in almost universal use. securing its purity, preserving unimpaired its natural qualities, and securing it from adulteration, plainly is within the power of the Legislature. It was said in Commonwealth v. Graustein & Co., 209 Mass. 38, 42, 95 N. E. 97, 98, that: "The history of the milk legislation in this commonwealth shows conclusively the determination of the law making power to protect the community from adulterated or impure milk." comes. It may have found also that instances of milk below the established standard offered for sale by producers arise usually from the failure of the cows to produce milk of that quality, rather than from any willful act of the producer. It is, perhaps, matter of common knowledge that some breeds of cows often do not give milk of the quality required by the Massachusetts standard. See Com. v. Wheeler, 205 Mass. The intent of the vendor has been made 384, 91 N. E. 415, 137 Am. St. Rep. 456, 18 immaterial. The main object being to shield Ann. Cas. 319. If that be so, it may have the public from an imposition in guise of a been thought that the farmer should be fluid which may look like pure milk and given a chance to bring the milk of his herd yet be either adulterated or skimmed, an up to the required standard before renderimposition difficult of detection, necessarily ing him liable to prosecution. Moreover, there must exist a wide discretion in the practical difficulties in the way of proving selection of appropriate means. It would actual adulteration of milk in the hands of be comparatively simple to ascertain wheth- the nonproducing vendor, not arising in the er the quality of milk offered for sale by case of the producing vendor can easily be the farmer, either at his door or at whole- conceived to exist. These considerations sale or retail delivery, was produced natu- and perhaps others lead to the conclusion rally by his herd. It would be difficult com- that a classification of vendors of milk into monly to find out whether the milk offered those who are producers and those who are for sale, especially in cities, by dealers who not, cannot be said to rest upon an immatewere not producers, was of the natural rial, unreasonable or arbitrary distinction. quality given by the cows from which it The Legislature has ample power under the had come. This and perhaps other condi- Constitution to enact statutes regulating contions may have been within the knowledge duct based upon classifications which have of the Legislature in deciding that, in or- some rational connection with the preservader to protect the public from imposition tion of the public health. It may exclude and the consequent possibility of sickness, some from their operation so long as such a classification of vendors of milk into those exclusion has a reasonable relation to the who were producers and those who simply result to be achieved and it is not a whimsiwere dealers was necessary, or at least wise. cal or arbitrary selection. It cannot proWhen the statute is considered in its applica- scribe one class upon the basis of race, Opintion to two vendors of milk selling in compe- ion of Justices, 207 Mass. 601, 94 N. E. 558, tition side by side, one a producer and the 34 L. R. A. (N. S.) 604; of being a defendant other a dealer who is not a producer, it has rather than a plaintiff, Opinion of Justices, an appearance of inequality. See O'Keeffe 207 Mass. 606, 94 N. E. 846; nor confer spev. Somerville, 190 Mass. 110, 113, 76 N. E. cial privileges upon members of particular 457, 112 Am. St. Rep. 316, 5 Ann. Cas. 684; organizations, Opinion of Justices, 211 Mass. Gleason v. McKay, 134 Mass. 419; Opinion of 618, 98 N. E. 337; Adair v. U. S., 208 U. S. Justices, 196 Mass. 603, 627, 85 N. E. 545. 161, 28 Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. This appearance is strengthened by the sug- Cas. 764; Coppage v. Kan., 236 U. S. 1, 35 gestion that the nonproducing seller may Sup. Ct. 240, 59 L. Ed. 441, L. R. A. 1915C, have bought his milk of his competitor who 960; nor attach extravagant penalties for is also a producer. But placing the situa- failure to settle civil claims, St. Louis, Iron tion in its true perspective minimizes this Mountain & So. Railway v. Wynne, 224 seeming inequality and demonstrates that U. S. 354, 32 Sup. Ct. 493, 56 L. Ed. 799, 42 it may not be substantial. The ultimate L. R. A. (N. S.) 102; Chicago, Milwaukee & aim of the statute is to secure a pure and St. Paul Ry. v. Polt, 232 U. S. 165, 34 Sup. healthful article of food of widespread use. The individual consumer ordinarily is unable to detect adulteration and is well-nigh powerless to defend himself against such deception. It is not commonly discernible on a superficial inspection. These factors justify a reasonable classification. The Legislature may have found that common experience has demonstrated that impurities and adulterations are found in the vast majority of instances in milk kept for sale by nonproducing dealers and only in a comparatively insignificant and negligible number of instances in milk offered for sale by the owner of the cows from which the milk Ct. 301, 58 L. Ed. 554; nor provide that The Employers' Liability Act (Rev. Laws, c. 106, § 71 et seq.) and the Workman's |