Pettinella v. City of Worcester

• Decision Date: 06 March 1969
• Parties: Ferdinand J. PETTINELLA v. CITY OF WORCESTER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 451

245 N.E.2d 451

355 Mass. 412

Ferdinand J. PETTINELLA v. CITY OF WORCESTER et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Jan. 9, 1969.

Decided March 6, 1969.

Harry J. Meleski, City Solicitor, Henry P. Grady, Arthur F. Koskinas, Andrew F. McCarthy, and Stanton H. Whitman, Asst. City Solicitors, for the City of Worcester and others.

Terence F. Riley, Belmont, for plaintiff.

Before WILKINS, C.J., and SPALDING, WHITTEMORE, SPIEGEL and REARDON, JJ.

REARDON, Justice.

This is a bill in equity for a declaratory decree brought under G.L. c. 231A, § 1, seeking a declaration that the plaintiff was eligible for his pay as a policeman under G.L. c. 41, § 111F, ¹ at the time he was injured on November 1, 1962, in Worcester. Following a hearing by a Superior Court judge a decree was entered that the plaintiff 'was entitled to his full pay under Chapter 41, Section 111F for the period of his disability which started on November 1, 1962, up to February 13, 1963, for a period of fifteen (15) weeks,' and that the records of his accumulated sick leave should be corrected accordingly. The evidence is reported and there was a report of material facts. The defendants have appealed from the final decree.

There was evidence that on the night of November 1, 1962 the plaintiff, after a conversation with a police sergeant who was his superior in the Worcester department, proceeded to an assignment to traffic duty on Route 20 in Worcester to be carried out in conjunction with a traffic survey which was then and at that point under way for the State. He was to relieve another police officer at 10 P.M. and work until 7 A.M. the following morning. He was doing this work as extra duty, outside his regular hours, for additional compensation. It was necessary that he drive his own car to this work. After his arrival, while moving his car at the request of the officer he was relieving, he was struck in the rear by another automobile and the plaintiff was hospitalized as a result of injuries sustained in the impact. The judge found that the plaintiff suffered his injury while 'acting as ordered by his superiors in the Police Department * * * acting in the performance of his duty and without fault on his part.'

We deal at the threshold with several of the defendants' contentions which seem to us to lack merit. The defendant city argues that the plaintiff sustained his injuries through his own fault 'by parking his automobile so as to create a traffic hazard in the correction of which * * * (he) was injured.' However, assuming violation of an ordinance, this was simply evidence to be considered. It was a question of fact whether it was a cause of the mishap as opposed to a mere condition. Newcomb v. Boston Protective Dept., 146 Mass. 596, 604, 16 N.E. 555. Leveille v. Wright, 300 Mass. 382, 387--389, 15 N.E.2d 247. There was a specificfinding by the judge that the plaintiff was without fault in the accident, a finding which was amply supported by the evidence. Furthermore, it is far from clear that the plaintiff violated any ordinance or was otherwise negligent in the manner in which he parked his car.

It is also argued by the defendant city that it was injuriously affected by the fact that the plaintiff returned to his position of patrolman in February of 1963 and did not bring suit until August, 1967. But the plaintiff did not know that he was not being paid under c. 41, § 111F, and that his sick leave increments were being charged. Whether the defence of laches was established was a question of fact for the judge. McGrath v. C. T. Sherer Co., 291 Mass. 35, 59--60, 195 N.E. 913. The burden of proof was on the defendant, and while the judge below made no specific finding relative to laches, that he ordered a decree in favor of the plaintiff is sufficient indication that he was not impressed by the defendant's contention in this regard. Certainly the defendant city suffered no hardship. Moseley v. Briggs Realty Co., 320 Mass. 278, 283, 69 N.E.2d 7, and cases cited.

The defendant city further invokes the defence of res judicata based on two prior actions brought in the District Court by the plaintiff in contract for the same cause, one of which was ordered dismissed without prejudice and the second 'discontinued without prejudice to allow the plaintiff equitable relief in the Superior Court.' In support of this contention the defendant city cites Mackintosh v. Chambers, 285 Mass. 594, 190 N.E. 38, and Siegel v. Knott, 318 Mass. 257, 61 N.E.2d 130. However, in these cases the prior action was decided on the merits, which barred the plaintiff in the second action. The nature of the dismissal and discontinuance of the District Court actions makes it clear that the present suit is not barred where the dismissal and discontinuance were 'without prejudice.' Kempton v. Burgess, 136 Mass. 192. Lakin v. Lawrence, 195 Mass. 27, 80 N.E. 578. Corey v. Tuttle, 249 Mass. 135, 144 N.E. 230. We conclude that res judicata does not apply in this case.

The nub of the plaintiff's contention is whether it...