Mullen v. Contributory Retirement Appeal Bd.

• Decision Date: 15 February 1962
• Citation: 180 N.E.2d 452,343 Mass. 641
• Parties: Alice T. MULLEN v. CONTRIBUTORY RETIREMENT APPEAL BOARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 452

180 N.E.2d 452

343 Mass. 641

Alice T. MULLEN v. CONTRIBUTORY RETIREMENT APPEAL BOARD.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 3, 1962.

Decided Feb. 15, 1962.

Matthew R. McCann, Worcester, for petitioner.

Edward J. McCormack, Jr., Atty. Gen., and Herbert E. Tucker, Jr., Asst. Atty. Gen., for respondent, submitted a brief.

Before WILKINS, C. J., and SPALDING, WILLIAMS, CUTTER, and KIRK, JJ.

WILLIAMS, Justice.

This is a petition for a writ of certiorari to correct an alleged error of the contributory retirement appeal board in deciding adversely to the petitioner on her appeal from a decision of the Shrewsbury retirement board denying her application for accidental death benefits resulting from the death of her husband George E. Mullen, late chief of the Shrewsbury fire department. The return of the appeal board contained a transcript of the evidence from which the following facts could have been found.

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.' This 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 filed on July 22, 1955. Before the enactment of the State Administrative Procedure Act, St.1954, c. 681, § 1 (now G.L. c. 30A), which became effective July 1, 1955, certiorari was the appropriate remedy for the correction of errors by the appeal board. Hough v. Contributory Retirement Appeal Bd., 309 Mass. 534, 535, 36 N.E.2d 415, and cases cited. Cassier v. Contributory Retirement Appeal Bd., 332 Mass. 237, 238, 124 N.E.2d 516; Hunt v. Contributory Retirement Appeal Bd., 332 Mass. 625, 626, 127 N.E.2d 171. Although it was held in Mathewson v. Contributory Retirement Appeal Bd., 335 Mass. 610, 616, 141 N.E.2d 522, that since the enactment of St.1954, c. 681, § 1, a writ of certiorari does not lie we think that on the facts of the instant case certiorari may be invoked. Under the procedure act the appeal must have been taken within thirty days after the administrative decision (c. 30A, § 14). The procedure act had not become effective when the decision of the appeal board was rendered and the...