WILLIAM RILEY'S CASE.

Suffolk. March 26, 1917. - May 24, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Workmen's Compensation Act, Double compensation, Practice.

The negligence of a subscriber under the workmen's compensation act in furnishing for the use of its employees an elevator so thoroughly out of repair as to be unsafe and in permitting the use of this elevator when its superintendent considered that it was in a "dangerous condition" does not warrant a finding that an employee injured by the falling of this elevator when he was using it in the course of his employment was "injured by reason of the serious and wilful misconduct of a subscriber or of any person regularly entrusted with and exercising the powers of superintendence" within the meaning of St. 1911, c. 751, Part II, § 3, so as to entitle him to a double compensation.

In a claim under the workmen's compensation act in which an award has been made doubling the amount of compensation to be paid to the injured employee on the ground that he was injured by reason of the serious and wilful misconduct of his employer within the meaning of St. 1911, c. 751, Part II, § 3, if all the evidence is reported, it is a question of law whether a finding that the employer was guilty of serious and wilful misconduct was warranted by the evidence. Where in such a case it was held that this finding was not warranted so that an award doubling the amount of the compensation to be paid to the injured employee was erroneous, but the award in all other respects was warranted by the evidence, it was ordered that the decree be modified by deducting the excess, leaving the award to stand as if the compensation had not been doubled.

APPEAL to the Superior Court under St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14, from a decision of the Industrial Accident Board, awarding double compensation under St. 1911, c. 751, Part II, §3, as amended by St. 1912, c. 571, § 1, to William Riley, an employee of the Home Soap Company, a corporation, who was injured on July 21, 1915, by the falling of an elevator which he was using in the course of his employment.

The case was heard by Fox, J. All of the material evidence before the arbitration committee was reported, and the substance of this evidence is described in the opinion. The judge made a decree in accordance with the decision of the Industrial Accident Board. The insurer and the employer appealed.

St. 1911, c. 751, Part II, § 3, as amended by St. 1912, c. 571, § 1, is as follows: "If the employee is injured by reason of the

serious and wilful misconduct of a subscriber or of any person regularly entrusted with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled. In such case the subscriber shall repay to the association the extra compensation paid to the employee. If a claim is made under this section the subscriber shall be allowed to appear and defend against such claim only."

G. C. Dickson, for the insurer.

T. H. Sullivan, for the employer.

J. H. Mathews, for the employee, submitted a brief.

BRALEY, J. The subscriber and the insurer, having waived at the argument any irregularities as to the composition and membership of the arbitration committee, concede that the evidence amply warranted a finding that the employee's injuries arose out of and in the course of his employment, for which he was entitled to compensation for total incapacity during the period stated, based on one half of his average weekly wages, with an additional reasonable allowance for medical and hospital services rendered in the first two weeks following the injury. St. 1911, c. 751, Part II, §§ 1, 5, 9.

But independently of this concession they contend, that the evidence did not warrant doubling the amount, as provided in St. 1912, c. 571, § 1, under which the subscriber as well as the insurer is allowed to appear and defend "against such claim only."

The negligence of the subscriber in furnishing for the use of its employees an elevator so thoroughly out of repair as to be unsafe, and in permitting the use of the elevator which the board could find the superintendent considered was in a "dangerous condition," while abundantly shown by the evidence, Finnegan v. Winslow Skate Manuf. Co. 189 Mass. 580, 582, Moylon v. D. S. McDonald Co. 188 Mass. 499, does not rise to the degree of serious and wilful misconduct of a subscriber or of any person regularly entrusted with and exercising the powers of superintendence, for which under § 3 as amended, the injured employee shall be awarded double compensation. As said by Sheldon, J., "Serious and wilful misconduct is much more than mere negligence, or even than gross or culpable negligence. It involves conduct of a quasi criminal nature, the intentional doing of something either with

the knowledge that it is likely to result in serious injury or with a wanton and reckless disregard of its probable consequences." Burns's Case, 218 Mass. 8, 10.

The inquiry ordinarily is a question of fact, yet, where as in the present case all the evidence is reported, whether it is sufficient to warrant such conclusion is a question of law. Nickerson's Case, 218 Mass. 158, 160. Kallio v. Worcester Consolidated Street Railway, 222 Mass. 121, 123, and cases cited. Pigeon's Case, 216 Mass. 51. Diaz's Case, 217 Mass. 36. Buckley's Case, 218 Mass. 354. Comerford's Case, 224 Mass. 571.

The result is that the award is erroneous in amount. It is not, however, necessary to reverse the decree, which in all other particulars is supported by the evidence and is in conformity with the statute. The requisite data for making the computations being stated fully in the record, the decree is to be modified by deducting the excess, leaving the award to stand as if the compensation had not been doubled, and when so modified it is affirmed. St. 1911, c. 751, Part III, § 11, as amended by St. 1912, c. 571, § 14. McNicol's Case, 215 Mass. 497, 502. Pigeon's Case, 216 Mass. 51, 54, 55.

Ordered accordingly.

COMMONWEALTH vs. VAN K. ALLISON.

Suffolk. March 30, 1917. - May 24, 1917.

Present: RUGG, C. J., BRALEY, DE COURCY, CROSBY, & PIERCE, JJ.

Distribution of Obscene Literature. Advertising Means for Prevention of Conception. Constitutional Law. Words, "Advertises."

A count in an indictment charging the defendant with the violation of R. L. c. 212, § 20, as amended by St. 1913, c. 259, by distributing pamphlets entitled "Why and How the Poor Should not have many Children" and "Don't have Undesired Children," containing "obscene, indecent and impure language, manifestly tending to corrupt the morals of youth, the same being too lewd and obscene to be more particularly set forth," supported by a bill of particulars filed under R. L. c. 218, § 39, containing copies of the pamphlets named in the indictment, is sufficient.

A count in an indictment, supported by a bill of particulars, charging the defendant with the violation of R. L. c. 212, § 26, by advertising certain enu

merated drugs, medicines, instruments and articles for the prevention of conception, and a count charging the defendant with the violation of R. L. c. 212, § 16, as amended by St. 1905, c. 316, by knowingly circulating, distributing and publishing a pamphlet, described by its title, containing words conveying notice, hint or reference to places where designated means for the prevention of conception may be obtained, in each count following the words of the statute, are sufficient.

The statutes named above under different sections of R. L. c. 212, as amended, contravene no provision of the Constitution and each of them is a proper exercise of one of the most obvious and necessary branches of the police power. INDICTMENT found and returned in the county of Suffolk on August 12, 1916, with thirteen counts, of which the second and eleventh were withdrawn by the district attorney, as described in the opinion, the titles of the pamphlets there referred to being "Why and How the Poor Should not have many Children" and "Don't have Undesired Children."

The defendant filed a motion to quash the indictment, assigning as to the first, third, fourth, fifth, sixth and seventh counts the following reason: "Because said count does not contain a reasonably specific description of the obscene, indecent and impure language tending to corrupt the morals of youth, which it is alleged the pamphlet amongst other things contains," and assigning as to the eighth, ninth, tenth, twelfth and thirteenth counts the following reason: "Because each of said counts does not set out nor allege any excuse for not setting out verbatim or according to its tenor the words or the advertisement relied upon to sustain the indictment," also assigning the alleged unconstitutionality of St. 1913, c. 259, of R. L. c. 212, § 26, and of St. 1905, c. 316, "And that each of the counts contained in said indictment has set forth no crime or offence known to law."

The motion to quash was heard by Sisk, J., who ordered the district attorney to file a bill of particulars of the offences charged in the indictment. A bill of particulars was filed containing copies of the pamphlets named in the indictment, and the judge then made an order denying the motion to quash. The defendant excepted to the ruling.

Thereafter the defendant was arraigned at the bar and pleaded guilty upon all the counts except the second and eleventh which had been withdrawn. In pleading guilty the defendant stated that he did not waive his exceptions, and the exceptions alleged by him were allowed by the judge. In the allowance of the

exceptions a provision was inserted in the bill of exceptions that the bill of particulars filed by the Commonwealth on account of the nature of the pamphlets contained in it was not to be printed but that certified copies of the pamphlets were to be transmitted to this court.

R. L. c. 212, § 20, as amended by St. 1913, c. 259, is as follows: "Whoever imports, prints, publishes, sells or distributes a book, pamphlet, ballad, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to corrupt the morals of youth, or an obscene, indecent or impure print, picture, figure or description, manifestly tending to corrupt the morals of youth, or introduces into a family, school or place of education, or buys, procures, receives or has in his possession any such book, pamphlet, ballad, printed paper, obscene, indecent or impure print, picture, figure, image or other thing, either for the purpose of sale, exhibition, loan or circulation or with intent to introduce the same into a family, school or place of education shall be punished by imprisonment for not more than two years and by a fine of not less than one hundred nor more than one thousand dollars.”

R. L. c. 212, § 16, as amended by St. 1905, c. 316, is as follows: "Whoever knowingly advertises, prints, publishes, distributes or circulates, or knowingly causes to be advertised, printed, published, distributed or circulated, any pamphlet, printed paper, book, newspaper, notice, advertisement or reference, containing words or language giving or conveying any notice, hint or reference to any person, or to the name of any person, real or fictitious, from whom, or to any place, house, shop or office where, any poison, drug, mixture, preparation, medicine or noxious thing, or any instrument or means whatever, or any advice, direction, information or knowledge, may be obtained for the purpose of causing or procuring the miscarriage of a woman pregnant with child or of preventing, or which is represented as intended to prevent, pregnancy, shall be punished by imprisonment in the State prison or jail for not more than three years or by a fine of not more than one thousand dollars."

R. L. c. 212, § 26, is as follows: "Whoever sells, lends, gives away, exhibits or offers to sell, lend or give away an instrument or other article intended to be used for self-abuse, or any drug,