39 Mass. App. Dec. 7 | Mass. Dist. Ct., App. Div. | 1967
The report, as amplified, shows that the plaintiff, a police officer, in the service of the City of Worcester sustained serious injuries on September 25, 1964 when the motor vehicle he was operating collided with a tree. He was driving from his home to the Superior Court where he was to appear as a witness for the Commonwealth. In this action he seeks recovery of payments he alleges to be due him under the provisions of G-.L. c. 41, § 111F which provides that a police officer or fire fighter shall be granted leave without loss of pay when “incapacitated for duty because of injury sustained in the performance of Ms duty without fault of his own”. There was a finding for the defendant and the plaintiff claimed a report.
The trial justice’s findings, rulings and decision, Bet out in the report as first submitted were improperly interlarded with lengthy recitals of evidence — evidence that did not appear elsewhere in the report are required by
Generally, no useful purpose is served by a judge inserting recitals of the evidence in his findings of fact.
The court’s findings of fact are not a part of the trial record and must be supported by reported evidence. Findings cannot supply evidence that the report lacks. Attorney General v. Oliver, 175 Mass. 163. McCarey v. Stop & Shop, Inc., 18 Legalite 103, 106. (February 20,1967).
A proper report should be the careful concern of the parties and the judge and “ (I)f the judge himself does not undertake to oversee the efforts of counsel in settling his report, there may be instances when due to the oversight of counsel for the appellee (and appellant) his
“(W)e should (not) attempt to decide the case on guesswork.” Ruberto v. Thebodo, 338 Mass. 1,3.
As the contents of the report as amplified and corrected are inadequate for us to determine the rights of the parties, justice requires that there be a new trial. So ordered.