No. 2574 Claim of William H. Reynolds, Employe of United States Cartridge Company, vs. London Guarantee & Accident Company for Injury to Hand. Finding for Insurer. Heard at Lynn, Jan. 21, 1916. Counsel, E. J. Tierney for Employe; H. S. Avery for Insurer. Question: Whether or not employe received an injury in course of employment. Evidence: Employe testified that he was knocked into a pit by a truck and that his hand was cut. On cross-examination he admitted that he had a quarrel with a fellow employe on the night of the injury. Other employes testified that claimant struck the other man, who fell into the pit and the claimant fell in after him; that the trouble took place before the men went to work; no one saw a truck strike the claimant. Finding: That claimant did not receive an injury in course of employment, but was injured as the result of a quarrel started by himself; the claim is dismissed and costs assessed on the employe. FRANK J. DONAHUE, Chairman. JOHN A. CROWLEY, for Employe. No. 2393-Claim of Eugene T. Hart, Employe of Commonwealth Ice & Cold Storage Company, vs. Travelers Insurance Company, for Typhoid Fever. Claim Dismissed. Heard at Boston, Jan. 11, 1916. Counsel, L. C. Doyle for Insurer. Question: Whether or not the condition of typhoid fever from which the employe suffered arose out of and in the course of his employment. Evidence: Employe testified that when he was thirsty he used to eat some of the ice which he collected at the wharf; that he laid his illness to that. Hearing was adjourned two weeks to give emplove's physician an opportunity to testify, but nothing was heard from him. Finding: That the employe has not sustained the burden of proving any causal relation between his illness and his employment; claim dismissed. JOSEPH A. PARKS, Chairman. WILLIAM C. PROUT, for Insurer. WAYLAND F. DOROTHY, for Employe. No. 2581-Claim of William F. Johnson, Employe of Samuel Altman vs. Zurich General Accident & Liability Insurance Company, for Hernia. Finding for Employe. Heard at Boston Jan. 25, 1916; Counsel, J. M. Morrison for Insurer. Question: Whether or not the employe was injured in course of employment. Evidence: Employe, a janitor, testified that on Feb. 4, 1914, while carrying a barrel of ashes up some steps he slipped and felt something snap in his right side; knew it was a hernia because he had previously had one in the other side; consulted a doctor and in April secured a truss; was able to do his regular work up to Sept. 8, 1915, when he went to the hospital and was told he must be oper ated on at once; he returned to work Oct. 16. Finding That the employe sustained an injury in the course of his employment; that no claim was filed within six months but that there was reasonable cause therefor; That he was totally incapacitated from Sept. 8 to Oct. 16; that taking into consideration his rent which was free to him and which we value at $20 a month and the value of the tips he received his average weekly wages were $20; that compensation should be paid at $10 a week amounting to $54.28. FRANK J. DONAHUE, Chairman. No. 2634 Claim of James J. Ward, Employe of Massachusetts Question: As to duration of incapacity. Evidence: It was agreed before the committee that insurer should pay total incapacity compensation to Jan. 17, 1916, and that partial incapacity compensation should be based on two-thirds the difference between his average weekly wages before the injury, $18, and his ability now to earn $9. The employe was able to work Dec. 7 and 8. Finding: That the employe was totally incapacitated from Dec. 5, 1915, to Jan. 17, 1916, and for this is due compensation amounting to $61.43; and his incapacity became partial on Jan. 17, and that the insurer shall continue compensation at $6 a week until this order is modified by the board after due hearing. Insurer is entitled to deduct $2.86 for the two days the employe worked. Net sum due to date of hearing, $64.57. THOMAS F. BOYLE, Chairman. MARTIN T. JOYCE for Employe. WINFIELD S. PARKS for Insurer. (Cases Heard by Full Board on Review.) Claim of Nicholas Stroffolino, Widow of, vs. City of Newton. Finding for City. Heard Feb. 3, 1916; Counsel, E. P. Barry for Widow; E. B. Bishop for City. Question: Whether or not the employe's death, Nov. 12, 1914, had any causal relation with an injury on Oct. 7, 1914. Evidence: The employe was injured by being struck accidentally by a pick in the hands of a fellow laborer. Death was the result of an operation for removal of meckel diverticulum, having no causal relation to the injury. The committee after reporting the evidence found that the widow was not entitled to compensation. Findings and decision of arbitration committee affirmed. For arbitration report see Vol. 1, Bulletin No. 29, page 1464. Claim of William McGinnis, Employe of Katherine A. Driscoll, vs. Employers Liability Assurance Corporation, Ltd., for Injury to Leg. Previous Finding for Employe Reversed, Claim Dismissed. Heard Oct. 14 and Oct. 21, 1915; Counsel, J. L. Cogswell for Employe; J. M. Morrison for Insurer. Questions: Whether employe received an injury in course of employment and, if so, whether it was caused by reason of his intoxication. Evidence: The claimant, a teamster, testified that while handling a pair of green horses he was struck by the wagon pole, knocked down and kicked in the leg; that he had three drinks of whiskey that day with the foreman of his employer. Mrs. Driscoll, the employer, testified that McCarthy, the foreman, was not in her employ on the day of the accident, he had become intoxicated and left; that the claimant brought in the team that night two hours late, and that he had been drinking; that he said nothing to her about the accident; that the woman who ran the boarding house told her claimant was so drunk the doctor would not give him ether. Finding: That the employe has not sustained the burden of proving that the injury arose in course of employment; that he was intoxicated at the time of the injury and not in a condition properly to perform his duties as teamster. Claim dismissed. For arbitration report see Vol. 1, Bulletin No. 22, page 1230. SUPREME JUDICIAL COURT. CITY OF BOSTON, PETITIONER. Reservation of Petition for Acceptance of Report of Commission to Apportion Costs of Construction, Repairs and Maintenance of Bridges Between Boston, Chelsea and Revere. Amended Decree Affirmed Feb. 15, 1916. Argued Dec. 1, 1915; J. P. Lyons for City of Boston; J. L. Kiernan for Chelsea; A. A. Casassa for Revere. OPINION. RUGG, C. J. This case was considered at large in 221 Mass. 268, whereby it was ordered that a final decree be entered apportioning the costs of the construction, repairs and maintenance of Chelsea bridge and of Meridian street bridge between the cities of Boston, Chelsea and Revere in certain percentage in accordance with the report of a commission. Thereafter, a final decree was entered, from which appeals were claimed by the city of Chelsea and by the city of Revere. There can be no appeal from final decree or judgment entered substantially in accordance with a mandate or rescript of an appellate court. Lincoln v. Eaton, 132 Mass. 63, 69; Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 162; Day v. Mills, 213 Mass. 585, 587; Commonwealth v. Phelps, 210 Mass. 260; Illinois v. Illinois Central Railroad Co., 184 U. S. 77 and cases cited at 92; United States v. Camou, 184 U. S. 572; United States v. New York Indians, 173 U. S. 164. See Williams v. Clarke, 182 Mass. 316. Where the form of the final decree or judgment is not embodied in the rescript or mandate, in appropriate cases examination will be made on appeal of the subsequent record, in order to ascertain whether it is in accordance with the mandate or rescript. If the decree or judgment is in accordance with the rescript or mandate, ordinarily the appeal will be dismissed and the final decree or judgment will stand as if there had been no appeal. In the case at bar, the form of the decree was not set out in the opinion or rescript. The substance of the rescript was in these words: "The report of the commissioners is confirmed except as to the cost of repairs and maintenance of Chelsea bridge; as to such repairs and such maintenance the alternative finding whereby percentages are apportioned to the city of Chelsea and to the town of Revere is to be substituted, and as thus modified the report is confirmed." Necessarily the final decree is somewhat complicated. It is assailed in these particulars: 1. It is urged that the assessment to the cities of Chelsea and Revere should be confined "to the cost of maintenance of the north draw in Chelsea bridge" and should not extend to "the cost of maintenance of the whole of Chelsea bridge." The alternative award of the commissioners upon this point, which was affirmed by this court when the case was here before, is that "with respect to the cost of maintenance of said Chelsea bridge we also think it just and equitable and apportion upon said city of Boston.... and we decide that the town of Revere shall contribute.. and that the city of Chelsea shall contribute.. 60% 5% 35% 100% of the cost of maintenance of said bridge". These words express plainly an unmistakable purpose to apportion the maintenance of the bridge as a whole (with the exception of the south draw, elsewhere dealt with in the report), and not to restrict the apportionment to the maintenance of the north draw. Other parts of the report of the commissioners show that when the north draw was intended it was described in apt phrase. In this respect the decree conforms to the rescript and to the terms of the award. 2. It is agreed by all parties that in paragraph 5 of the final decree the word "operation" shall be stricken out and the word "maintenance" inserted in its place. This apparently conforms to the report. By reason of the agreement, this substitution may be made. 3. The further contention that paragraph 7 of the decree should relate only to the draw in the Meridian street bridge and should not include the costs of maintenance of the entire bridge, finds no support in the record. The report of the commissioners apportions the "costs of maintenance of said bridge" as a whole, and contains nothing to indicate a purpose to limit the apportionment to the "draw.” 4. The whole decree is assailed on the ground that it operates to deprive the cities of Chelsea and Revere of their property without due process of law, and denies them the equal protection of the laws. There is nothing in this point. Stewart v. Kansas City, 239 U. S. 14, 16. They were considered fully and decided adversely to the contentions of Chelsea and Revere in the earlier decision, and cannot be raised again at this stage. 5. A motion has been made to amend the rescript. It is based on the idea that the rescript does not express the judgment of the court as manifested by the opinion. This proposition is without foundation. The earlier opinion on this branch of the case simply decided which of two alternative findings of the commissioners was sound in law. It made no determination to the effect that the maintenance charges should be apportioned differently in any respect from that pointed out by the alternative finding of the commission which was held to be correct. Let the order be: Motion to amend rescript denied. Paragraph 5 of decree amended by striking out from the last clause the word "operation" and by inserting in place thereof the word "maintenance," and as thus amended, the decree is affirmed. W. H. TEWKSBURY V. AMELIA B. TEWKSBURY. Defendant's Appeal in Bill to Declare Void Two Deeds to Property in Lawrence. Decree Affirmed, Feb. 11, 1916. Argued Nov. 3, 1915. W. J. Bradbury for Plaintiff; N. P. Frye for Defendant. OPINION. DeCOURCY, J. The trial justice who heard the evidence voluntarily filed a report of material facts found by him, and his finding will not be set aside unless they are plainly wrong. Cohen v. Nagle, 190 Mass. 4. There is no dispute as to most of the facts. In October, 1902, the property |