Commonwealth v. Vieth

Allen, J. By St. 1886, c. 318, § 2, whoever by himself, or by his servant or agent, sells milk not of good standard quality shall be punished by a fine; and milk containing less than [444] thirteen per cent of milk solids is to be deemed to be not of good standard quality, except during the months of May and June, when milk containing less than twelve per cent of milk solids is to be deemed to be not of good standard quality. It is contended that this provision does not apply to the keeper of a hotel, who supplies' milk to his guests to be drunk by them upon his premises. The evidence tended to show a sale in the defendant’s café of a glass of milk, tó be drunk upon the premises. This was apparently a transaction by itself. We are unable to find in the letter or apparent intention of the statute any warrant for an exception applicable to such a case as the present, and the defendant must be held to see to it that the milk so sold is of the required standard of quality. Commonwealth v. Waite, 11 Allen, 264. Commonwealth v. Evans, 132 Mass. 11. The jury must have found that the sale was made by the defendant’s servant in the ordinary course of his employment; and for such sale the defendant was responsible, under the statute, though he was not present, and did not consent to or know of the particular sale. Such is the plain meaning of the statute. The request for an instruction to the jury that under such circumstances the defendant was not guilty was properly refused. The instruction given was properly adapted to the evidence in the case. There was no suggestion that the defendant’s servant was acting in violation of orders. Exceptions overruled.