Intoxicating Liquors. Transportation of Intoxicating Liquors. Carrier. Master and Servant. Agency.
It here was assumed for the purposes of the opinion that, upon a complaint under R.L.c. 100, § 50, against a person conducting a general express business for failing to enter in a book kept for the purpose the date of the reception by him of packages of intoxicating liquors for delivery in a city or town where licenses of the first five classes are not granted and a correct transcript of the marks required by law to be upon the outside of such packages, if it is shown that the defendant failed to comply with the requirements of the statute it is no defence that his failure to do so was owing to an honest mistake.
Upon a complaint under R.L.c. 100, § 50, against a person conducting a general express business for failing to enter in a book kept for the purpose the date of the reception by him of packages of intoxicating liquors for delivery in a city or town where licenses of the first five classes are not granted and a correct transcript of the marks required by law to be upon the outside of such packages, if it is shown that a servant of the defendant, who in the course of his employment in the defendant's business received packages of intoxicating liquors, failed to comply with the provisions of the act, this does not justify the defendant's conviction, unless it further is shown that the defendant participated in the act of his servant or acquiesced in it, and accordingly it is error on the part of the presiding judge to exclude evidence offered by the defendant to show what instructions he gave to his servant in regard to conducting the business and that he told him "to run the business right and to be sure to keep the book straight."
LORING, J.
We assume for the purpose of this opinion that the crime created by R.L.c. 100, § 50, is one of those crimes where the defendant acts at his risk, and where it is no excuse that he made an honest mistake, like the Crimes before the court in Commonwealth v. Boynton, 2 Allen, 160, Commonwealth v. Uhrig, 138 Mass. 492, Commonwealth v. Stevens, 153 Mass. 421; S.C. 155 Mass. 291.
In such cases the defendant is liable in case he does the act although he did it under an honest mistake. Commonwealth v. Boynton, 2 Allen, 60. Commonwealth v. Stevens, 153 Mass. 421, 425.
And the servant is liable although he did the act under an honest mistake. Commonwealth v. Green, 163 Mass. 103. Commonwealth v. Stevens, 153 Mass. 421, 425.
The question here is under what circumstances the master is liable when the act is done by the servant.
It is not enough that it was done in the course of the servant's employment in the master's business. Commonwealth v. Stevens, 153 Mass. 421; S.C. 155 Mass. 291.
To convict a master for the act of the servant the government must show that the master participated in the act or countenanced it or otherwise approved of it. Commonwealth v. Stevens, 153 Mass. 421; S.C. 155 Mass. 291. Commonwealth v. Joslin, 158 Mass. 482, 495.
It follows that the concession made "that it was within the scope of Molloy's authority from the defendant to keep the express book" was not decisive of the defendant's liability. It also follows that the judge was wrong in excluding evidence as to "What instructions, if any, he [the defendant] gave Molloy in relation to conducting the business," and evidence to the effect that he, the defendant, "told Molloy to run the business right and to be sure to keep the book straight." Similar evidence was received at both trials of Commonwealth v. Stevens; see 153 Mass. 421, and 155 Mass. 291; and under the doctrine of those cases cannot be excluded.
Exceptions sustained.