Sander v. City of Somerville

• Decision Date: 21 April 1922
• Parties: SANDER v. CITY OF SOMERVILLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 305

135 N.E. 131

SANDER

v.CITY OF SOMERVILLE.

Supreme Judicial Court of Massachusetts, Middlesex.

April 21, 1922.

Case Reserved and Report from Superior Court, Middlesex County; Richard W. Irwin, Judge.

Action by Joseph A. Sander against the City of Somerville. Reserved and reported from the superior court on an agreed statement of facts. Judgment for defendant.

Plaintiff was a member of the fire department of the defendant city and was suspended without pay for three days for violation of an order requiring members of the off-duty platoon not to place themselves so that they could not answer the summons of a second or general alarm. Plaintiff sued for his wages for the time be was suspended.

T. J. Shea, of Boston, for plaintiff.

Frank W. Kaan, of Boston, for defendant.

JENNEY, J.

The plaintiff is and for a considerable time has been a permanent member of the uniformed fire fighting force of the city of Somerville. Statute 1919, c. 132 (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 liberty at all times, except that in case of a conflagration the officer or board having charge * * * shall have full authority to summon and keep on duty all members of the fire fighting force while the conflagration continues.’

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 aldermen. Among them was the following:

‘Any 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 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, 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 ...