343 Mass. 641 | Mass. | 1962
This is a petition for a writ of certiorari to correct an alleged error of the contributory retirement
On the morning of December 24, 1953, the Shrewsbury fire station was notified by radio of a gas leak at the home of one Perez. The fire truck was brought out and a fireman named Michalak went up and notified Chief Mullen who was in his office on the second floor. The chief came down the stairs in “a minute or so” at his usual “medium rate” of speed and Michalak noticed that he was very pale. Michalak said, ‘ ‘ Chief you don’t look too good. ’ ’ The chief replied, “I don’t feel too good.” He put one arm into his coat which was hanging in the office where Michalak was sitting. He was going to put the other arm into the coat and started to collapse. Michalak rushed to him and held him up. He was taken to a Worcester hospital and died on December 26 from the result of a coronary thrombosis.
Dr. Hunter, the deceased’s physician, testified that the chief “probably had a fairly advanced degree” of coronary sclerosis and “in the effort of coming down the stairs or the excitement of the moment, whatever it was, he developed this attack of coronary insufficiency. . . . That means a spasm of the coronary vessels when the heart is called upon to do additional work than just sitting quietly or lying down, and this coronary insufficiency manifests itself by intense pain in the chest, the anginal pain, so-called. . . . And, the coronary insufficiency leads to coronary thrombosis.”
On August 5, 1954, the appeal board affirmed the denial of the petitioner’s application for accidental death benefits stating that it was not satisfied that she had established her rights to the same and that the decision of the Shrewsbury retirement board was consistent with the facts and the law as applied to those facts. The petition for certiorari was
A judge of the Superior Court dismissed the petition ruling that “ [t]he writ of certiorari lies only to correct errors in law, and not to revise a decision of a question of fact upon the evidence introduced at the hearing before the Board, or to examine the sufficiency of the evidence to support the finding, unless objection was taken to the evidence for incompetency so as to raise a legal question.” It is provided by Gr. L. c. 249, § 4, as amended by St. 1943, c. 374, § 1, that at the hearing upon “ [a] petition for a writ of cer-tiorari to correct errors in proceedings which are not according to the course of the common law ... [i]t shall be open to the petitioner to contend at the hearing upon the petition that the evidence which formed the basis of the action complained of or the basis of any specified finding or conclusion was as matter of law insufficient to warrant such action, finding or conclusion.”
In view of this statute, the judge was probably wrong in ruling that the writ did not lie to examine the sufficiency of the evidence to support the finding, but irrespective of the ruling we think that the petition was rightly dismissed.
A conclusion was not required that the coronary attack was the result of present physical exertion or emotional excitement and strain. Cf. Baruffaldi v. Contributory Retirement Appeal Bd. 337 Mass. 495, 501; McMurray’s Case, 331 Mass. 29, 32.
Order dismissing petition affirmed.