Jones v. Town of Wayland

• Decision Date: 28 December 1976
• Citation: 4 Mass.App.Ct. 725,358 N.E.2d 822
• Parties: David K. JONES v. TOWN OF WAYLAND et al. 1
• Court: Appeals Court of Massachusetts

Page 822

358 N.E.2d 822

4 Mass.App.Ct. 725

David K. JONES

v. TOWN OF WAYLAND et al. ¹

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 9, 1976.

Decided Dec. 28, 1976.

c. Peter R. Gossels, Boston, Daniel J. Paci, Stoneham, for defendants.

Robert S. Wolfe, Boston, for plaintiff.

Before HALE, C.J., and GRANT and BROWN, JJ.

GRANT, Justice.

This is a bill for declaratory relief by which the plaintiff, a former special police officer in the town of Wayland, seeks a binding determination of his rights (if any) under the provisions of G.L. c. 41, § 111F, as appearing in St.1964, c. 149. ² The defendants have appealed from a final judgment of the Superior Court which determines the town's liabilities to the plaintiff under § 111F (a) up to the date approximately two months prior to the date of the judgment and (b) thereafter 'until such time as . . . (the plaintiff) is retired, pensioned or determined to be no longer incapacitated in accordance with the provisions of' that section.

1. We find it necessary at the outset to give our reasons for not considering a number of the arguments advanced by the parties in their briefs before us. This case was referred to a master under a form of order which tracked the language set out in Form B found in the fourth paragraph of Rule 86 of the Superior Court, as amended effective June 1, 1970, and as in effect until July 1, 1974. ³ Both the form and the actual order of reference were explicit on the point that the master should 'not report any evidence except as . . . the second paragraph of Rule 90 . . . (might) apply.' On the second day of the hearing before the master the defendants secured the court's allowance of a motion under G.L. c. 221, 91C (inserted by St.1967, c. 138), ⁴ that certain stenographers named therein ⁵ 'report the testimony to be heard by . . . (the master) and that said stenographer(s) shall file a certified transcript thereof in the Clerk's Office pursuant to the provisions of Rule 79 of the Superior Court.' ⁶

The defendants filed with the master a number of objections to his report which purported to raise questions as to the sufficiency of the evidence to warrant particular findings appearing in the report. The defendants' requests for summaries of the evidence relied on in support of the challenged findings were ignored by the master, who filed his report with only the objections appended thereto. On the defendants' motion the court recommitted the report to the master for the purpose of providing the summaries which had been originally requested by the defendants. The master thereupon provided and filed the relevant summaries, with citations to specifically numbered pages of the transcript of the proceedings where (the master said) there could be found the evidence relied upon by him to support each of the findings in question.

The entire transcript of the proceedings before the master was subsequently filed in the clerk's office, as well as all the exhibits which had been introduced in evidence before the master. See Rule 50 of the Superior Court (1974) and Mass.R.Civ.P. 53(e)(1), as amended effective February 24, 1975, 365 Mass. --- (1975). ⁷ The judge by whose order the final judgment was ultimately entered appears to have read the transcript in its entirety before adopting the master's subsidiary findings of fact. ⁸ The judge, acting under Mass.R.Civ.P. 53(e)(2), 365 Mass. 820 (1974), entertained further evidence on the question whether a physician referred to in the master's findings had been 'designated by the board or officer authorized to appoint police officers' within the meaning of G.L. c. 41, § 111F. The master had made no finding on this point; the judge's findings on this point were based solely on the evidence heard by him.

In their brief before us the defendants have sought to develop numerous arguments to the effect that the judge's subsidiary findings (which were really those of the master except on the one point on which the judge himself entertained testimony) were not supported by the evidence or were 'clearly erroneous.' Such arguments are buttressed by copious references to the transcript of the proceedings before the master and to the exhibits before him, all of which have been reproduced in the defendants' appendix. Only two of these arguments are truly addressed to the sufficiency of the evidence to warrant particular subsidiary findings of the master to which timely objections had been taken under the first paragraph of Rule 90 of the Superior Court (1954); we have examined the evidence relied on by the master in response to those objections (both as summarized by him and as appearing in the specific pages of the transcript referred to by him) and have concluded that there is no merit to either objection.

On analysis, the balance of the defendants' arguments addressed to the judge's (master's) subsidiary findings turn out to be ones to the effect that many of those findings were contrary to the weight of the evidence before the master. However, as has already been explained, the master had been specifically directed not to report any of the evidence before him 'except as . . . the second paragraph of Rule 90 . . . (might) apply.' Accordingly, none of the evidence introduced before the master was properly before the judge (or is properly before us ) except as incorporated in the master's summaries and only for the limited purpose of determining the sufficiency of the evidence as matter of law to warrant the two particular findings to which timely objections had been taken. Michelson v. Aronson, --- Mass.App. ---, --- - --- ^a, 344 N.E.2d 423 (1976). That limited purpose was served in those two instances.

Nor does the defendants' invocation of the provisions of G.L. c. 221, § 91C (note 4, supra), require a conclusion different from any of those reached in the Michelson case. The provisions of that section are directed to entirely different situations, ones in which there may subsequently be a disputed question of fact as to what the evidence was before a master or in which the evidence before a master may become material for some other reason at a subsequent trial of the same issues. See, e.g., ROSLINDALE GEN. HOSP. INC. V. BECKWITH ELEVATOR CO., --- MASS.APP. --- , 324 N.E.2D 631 (1975)^B. Their only effect on the long established practice before masters in non-jury cases is to substitute the court's approval for that of the master in the selection of the stenographer who is to take and transcribe the proceedings before the master. See the second sentence of the second paragraph of each of Rule 90 of the Superior Court (1954) and Rule 49, § 7, of the Superior Court (1974).

It follows from what has been said that we do not entertain any of the defendants' arguments concerning the validity of the judge's (master's) subsidiary findings except in the two instances already considered and decided adversely to the defendants. Accordingly, we proceed under the well established rule that 'both the trial judge and the appellate justices are required to treat the master's (subsidiary) findings of fact as binding unless they are mutually inconsistent, contradictory, plainly wrong or vitiated in view of the controlling law.' Wormstead v. Town Manager of Saugus, --- Mass. ---, --- ^c, 322 N.E.2d 171, 172 (1975). MICHELSON V. ARONSON, --- MASS.APP. AT --- , 344 N.E.2D 423.^D As we see no inconsistency in or contradiction between the subsidiary findings in the single instance which has been urged by the defendants, we proceed to the substantive questions of law raised by the appeal.

2. The master's findings, as slightly reworded by the judge, include the following: 'On August 23, 1970, Jones, who was then 21 years of age, filed an application with the Town to become a part-time police officer. On October 29, 1970 he was appointed a Special Police Officer by the Board of Selectmen, which was the appointing authority of the Town. The term of the appointment was to expire on April 30, 1971. On the date of his appointment he was added to the payroll at $3.70 per hour for an 8-hour day. . . . Following his appointment, Jones followed all the orders of the Chief of Police . . .. His duties included practically all those performed by Regular Police Officers, specifically: arrests, traffic duty, cruiser duty; securing protection for homes and business establishments, and appearances at Court to testify. He was assigned a uniform, badge and a revolver for use when necessary in the performance of his duties . . .' (emphasis supplied). It is agreed that there was no change in the plaintiff's status as a 'special police officer' during the period between the date of his appointment and November 30, 1970, when, in the course of responding to a civil disorder, he sustained the injury which incapacitated him for duty.

The defendants argue that the provisions of G.L. c. 41, § 111F (note 2, supra), do not apply to a 'special' police officer, as opposed to one who is a 'regular' police officer or works full time. There is nothing in the language of § 111F itself or in the relevant statutory history of that section ⁹ which lends any support to the defendants' contention. The word 'regular' which appears in the second sentence of the section modifies the word 'compensation,' not the words 'police officer,' ¹⁰ and there are too many instances in which the Legislature has seen fit to qualify the generality of the words 'police officer' (G.L. c. 41, § 111F) or their ilk (G.L. c. 32, §§ 85E and 89; c. 41, §§ 96, 96A, 100, 100B and 111H; c. 147, §§ 17A and 17E; and see c. 152, § 69) by the use of such words as 'regular' (G.L. c. 31, §§ 5 (24th par.) and 48; c. 32, § 89; c. 41, §§ 96B, 108E, 108G, 108K, 108L, 111A, 111D and 111L; c. 147, §§ 17B, 17C and 17G), 'permanent' (G.L. c. 31, § 48; c. 32, §§ 83, 83A(b), 85, 85A, 85B, 85E and 89; c. 41, § 96B; c. 147, §§ 17B and 17G), 'full time' (G.L. c. 41, §§ 96B, 98D and 108L), 'reserve' (...