Riley's Case , 227 Mass. 55 ( 1917 )

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.