325 Mass. 214 | Mass. | 1950
General Laws (Ter. Ed.) c. 41, § 100, as appearing in St. 1945, c. 670, provides that a city “shall indemnify” a fireman or a member of the fire department “to an amount not more than the amount recommended by the board or officer authorized to appoint” such fireman or
This is a petition by a fireman of Chicopee against the mayor of that city, who was the officer authorized to appoint firemen (St. 1897, c. 239, § 20), alleging that on January 5, 1946, the petitioner while serving as a fireman sustained damages, including expense for medicines and medical attendance, and loss of pay by reason of absence from duty because of temporary incapacity caused by injuries suffered through no fault of his own while in the actual performance of duty. The petitioner alleged that on March 23, 1948, he petitioned the board of aldermen for such damages, that such board has authority to order his claim paid upon the recommendation of the respondent mayor, and that the petitioner has often applied to the respondent to grant him a hearing and to determine the amount of his damages and recommend such amount to the board of aldermen for payment, but the respondent has failed and refused to act. The prayer was that a writ of mandamus issue, commanding the respondent mayor to act.
In the Superior Court a demurrer to the petition was sustained after a hearing, and the petitioner appealed to this court.
The main purpose of the amendment of the relevant
The statute did not require him to act “for cause,” and therefore cases holding that action “for cause” implies a preliminary hearing have no application. Such cases are Ham v. Boston Board of Police, 142 Mass. 90, Lacy v. Selectmen of Winchendon, 240 Mass. 118, 121, Murphy v. Casey, 300 Mass. 232, 234, and Higgins v. License Commissioners of Quincy, 308 Mass. 142, 144, 145.
In our opinion the action of the judge was right.
Order sustaining demurrer affirmed.
The Chief Justice and Justice Honan are unable to agree with the foregoing opinion. The statute in plain and direct terms provides that a city “shall indemnify” a fireman for expenses and damages of the kind described in the petition.
The petition states a case for relief and the order sustaining the demurrer should be reversed.
The statute so far as material reads: “A city . . . shall indemnify a police_officer, fireman or a member of the fire department or a person required to assist a police officer in the discharge of his duties, to an amount not more than the amount recommended by the board or officer authorized to appoint police officers, firemen or members of the fire department of such city . . . l'or expenses or damages sustained by him while acting as a police officer, fireman or member of the fire department or as such assistant . . . and such damages shall include loss of pay by reason of absence from duty on the part of such officer, fireman or member because of temporary incapacity caused by injury suffered through no fault of his own while in the actual performance of duty . . .. This section shall be construed to require a city ... to pay compensation, in the manner herein provided, for damages for personal injuries, whether or not death results, and for property damage sustained by a person while assisting a police officer thereof in the discharge of his duty upon his requirement. ...”