241 Mass. 305 | Mass. | 1922
The plaintiff is and for a considerable time has been a permanent member of the uniformed fire fighting force of the city of Somerville. St. 1919, c. 132 (see now G. L. c. 48, § 59), was duly accepted by that city in November, 1919. Thereafter there were two platoons, designated respectively as day and night forces, which alternated in hours of service every third day. The statute fixed the hours and provided that “one force shall be at
The ordinances of Somerville authorized the chief engineer of the fire department to make regulations, subject to the mayor’s approval, for the proper government of the department and for the extinguishment of fires. On February 2, 1920, certain regulations made by the chief of the fire department of Somerville became effective. They had been approved by the mayor, and it is not now contended that they required the approval of the aider-men. Among them was the following: “Amy fire that necessitates the sounding of a second or general alarm is for a conflagration in its incipiency, and the full fighting strength of the apparatus, and men will be required to prevent it getting beyond control, therefore either such alarm shall summon to the fire, the members-of the off duty platoon (excepting those on the twenty-four hours leave, and then only if they so elect) whose companies respond to the fire. No member shall so place himself that he cannot answer the summons, and any neglect to respond shall be reported to this office.”
On April 1, 1920, in the early afternoon, a second alarm was sounded by order of the chief of the fire department for a fire in Union Square. The fire was confined to the two upper floors and roof of a four-story building with exterior walls of brick, whose roof was covered with slate, and whose interior construction was of wood.
The fire department consisted of four engine companies, three ladder truck companies, and four combination hose and chemical companies; of these, three engine companies, two ladder truck companies, and three combination hose and chemical companies were called to the fire by said second alarm. The company of which the plaintiff was a member responded to said alarm and was dismissed at 4:38 p.m. The all-out signal was sounded at 6.22 P.M. On the day of the fire, the plaintiff’s hours of duty ended at 8 a.m. and again commenced at 6 p.m. ; he was not in Somerville when the second alarm sounded, and, as he did not hear or know of it, did not respond thereto.
Subsequently, the plaintiff was summoned before the chief
The ordinances of Somerville relating to its fire department provide that “Any member who in any way shall neglect or refuse to perform his duty or to abide by the regulations of the chief engineer . . . may be punished by a forfeiture of pay for a, period not exceeding four weeks, by the order of the mayor. The chief engineer shall have the right to suspend any member, with loss of pay, for a period not exceeding seven days.”
Notwithstanding his suspension, the plaintiff reported for duty on each of the days for which he had been suspended, but was not permitted to render service.
He now sues to recover compensation for tne time he was suspended. The case by consent of parties has been reported for the determination of this court upon an agreed statement of facts, and without any decision thereon. G. L. c. 231, § 111.
By reason of the statutory provision that one force shall be at liberty at all times, except as limited by the authority to summon and keep on duty all members in case of a conflagration and while the conflagration continues, the plaintiff contends that the quoted regulation requiring him to be in readiness to respond to a second or general alarm is invalid, unless there was in fact a conflagration, because it unreasonably restricts the “liberty” secured to him by the statute. He urges that when off duty he could go where he pleased unless a conflagration in fact existed; and that there was no conflagration when he failed to respond to the alarm on April 1, 1920, because the fire was confined to one building.
It is assumed that the word “conflagration” as used in the statute relates to a fire extending to many objects or over a large space. The “liberty” to which the plaintiff was entitled was not absolute; it necessarily was subject to such reasonable regulation as rendered practicable the provision for his presence in case of a conflagration, and as was consistent with that obligation.
The regulation in question clearly is reasonable; it provides in a practical way for compliance with the statute. One subject to its terms may be anywhere within or without the city providing he does not place himself so that he cannot answer a second or general alarm; the further requirement that such alarms shall be answered also is valid because it provides in a reasonable way for
As the regulation was valid and as the plaintiff failed to observe its provisions and neglected to respond to the second alarm, the chief of the fire department properly could suspend him with loss of pay for a period not exceeding seven days. No question is made as to the validity of the ordinance creating the power of suspension. It follows that this action cannot be maintained and in accordance with the terms of the report judgment is to be entered for the defendant, without costs.
So ordered.
