2 Mass. App. Ct. 103 | Mass. App. Ct. | 1974
This is a bill for declaratory relief brought by a Saugus police officer who seeks a binding determination that he is entitled, by reason of the provisions of G. L. c. 41, § 111F (as appearing in St. 1964, c. 149),
On the night in question (November 27, 1971) the plaintiff, a captain in the Saugus police department, was the commanding officer of the department’s night division. As such, and except as hereinafter indicated, he had charge of the department during his tour of duty (5:00 p.m. to the following 1:00 a.m.), subject only to the orders of the chief of the department; he was cloaked with discretionary authority, in the chief’s absence, to
The particular time for the plaintiffs lunch period (8:00 p.m. to 8:45 p.m.) was established by a written order of the chief scheduling staggered lunch periods for all the members of the night division which were to be observed unless an emergency should arise. The purpose of the lunch periods was to allow each officer to get something to eat during his tour of duty. During his scheduled lunch period the plaintiff, like any other officer, could go anywhere or do anything he wanted so long as he left word at the station as to where he could be reached (by telephone or by walkie-talkie) in the event of an emergency.
Like every other officer, the plaintiff was on call twenty-four hours a day, whether on or off duty. There had been occasions when the plaintiff had been recalled to the station during his lunch period. An off-duty officer who observed an accident caused by a driver who was under the influence of intoxicating liquor was expected to stop the offender and arrest him. The plaintiff had, on past occasions, made arrests during his lunch period.
On the night in question the plaintiff started his scheduled lunch period at 8:00 p.m., leaving the desk
Immediately following the accident the plaintiff got out of his automobile, identified himself as a police officer to the operator of the other automobile, and raised his arms to push that operator out of the way of traffic passing in the roadway. As he raised his arms he felt a shock of pain across his back and shoulders. He directed traffic around the scene of the accident until other officers arrived. He did not arrest the other operator, who was arrested by another officer and subsequently prosecuted for driving under the influence of intoxicating liquor. He drove his own badly damaged automobile to his home, taking with him the investigation papers previously referred to.
The plaintiff has been refused leave without loss of pay for the reason, as stated by the chief of police (after having sought the advice of town counsel), that the injuries sustained by the plaintiff were “not considered to be . . . service connected.”
1. We deal first and briefly with the action of the court below in sustaining six of the plaintiff’s seven exceptions to certain findings and conclusions set out in the master’s report. The first exception was sustained on the ground that a particular subsidiary finding was not
2. As was stated by the Supreme Judicial Court in the case of Pettinella v. Worcester, 355 Mass. 412, 415 (1969), “The nub of the plaintiff’s contention is whether it can be found . . . that he was in the performance of his duty when injured. Boston Retirement Bd. v. Contributory Retirement Appeal Bd. 340 Mass. 109 [1959], held that language similar to that of G. L. c. 41, § 111F, is to be interpreted in a more restrictive sense than the
/ In the Boston Retirement Bd. case (340 Mass. 109) which was cited in the Pettinella case it was held that an operating room nurse who was injured, while on her way home to lunch, when she tripped and fell on a flight of stairs located in the hospital where she was employed was not entitled to the benefit of a statute (G. L. c. 32, § 7, as amended) which provided for the retirement for accidental disability of an employee “who becomes ... incapacitated for further duty ... by reason of a personal injury sustained ... as a result of, and while in the performance of, his duties . . ..” In the immediately ensuing case of Boston Retirement Bd. v. Contributory Retirement Appeal Bd. 340 Mass. 112 (1959), a like result was reached under the same statute with respect to a matron who was injured, while returning from lunch, when she fell in a hole on the premises of the stadium ^where she was employed.
We are bound (see point 1 above) by the subsidiary findings of the master to the effect that the plaintiff was “off duty” during his lunch period, which was when the accident occurred. That being so, we are of the opinion that the principles enunciated and the results reached in
We are not impressed with the plaintiff’s argument concerning the chief’s order establishing the time for the plaintiff’s lunch period; as we read the findings, there was nothing in that order which required the plaintiff to eat or to take his lunch, period away from the station. We do not think it important that the plaintiff was on call during his lunch period; he had not, in fact, been recalled at the time of the accident. We attach no significance to the plaintiff’s possession of investigation papers at the time of the accident. We reject any notion that a captain of police should be preferred over a probationary patrolman in determining the proper construction to be placed on § 111F. The fact that the plaintiff experienced pain when he raised his arms to protect the operator of the other vehicle involved in the accident did not tend to prove that the injuries (or the resulting incapacity) sustained in the course of the accident were compensable under the statute. Contrast Voutour v. Medford, 335 Mass. 403 (1957). Other arguments do not merit individual discussion.
3. The defendants in their brief request us to remand the case to the Superior Court for a determination by it of amounts which the town has paid to the plaintiff pursuant to a “restraining order,” and for the entry of an order requiring the plaintiff to refund such amounts to the town. The record and the docket entries before us disclose that upon the filing of the bill a short order of notice was issued to the defendants to show cause why a preliminary injunction should not be issued, and that on the return day of that order an interlocutory decree was entered for the speedy completion of the pleadings. No temporary restraining order or preliminary injunction appears to have been entered. There are certain docket entries which suggest a possibility that the trial judge
The interlocutory decree with respect to the master’s report and the final decree are reversed. A new interlocutory decree is to be entered confirming the master’s report as filed. A new final decree is to be entered declaring that the plaintiff is not entitled to leave without loss of pay under the provisions of G. L. c. 41, § 111F, as amended.
So ordered.
“Whenever a police officer ... of a ... town ... is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own, or a police officer . . . assigned to special duty by his superior officer, whether or not he is paid for such special duty by the . . . town, is so incapacitated because of injuries so sustained, he shall be granted leave without loss of pay for the period of such incapacity . . ..”
Those papers were still in the plaintiff’s home at the time of the hearing before the master.
The master’s ultimate findings (expressly stated to be based on his subsidiary findings and on admissions in the pleadings) include ones to the general effect that insofar as it was a question of fact (or of mixed law and fact) the plaintiff’s injury was not sustained “in the performance of his duty” within the meaning of G. L. c. 41, § 111F.
See, under G. L. c. 152, § 26, Rupp’s Case, 352 Mass. 658, 659-660 (1967). Contrast Jarek’s Case, 326 Mass. 182, 183-184 (1950).