Thibeault v. City of New Bedford

• Decision Date: 03 May 1961
• Citation: 342 Mass. 552,174 N.E.2d 444
• Parties: Jean B. THIBEAULT, Jr. v. CITY OF NEW BEDFORD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 444

174 N.E.2d 444

342 Mass. 552

Jean B. THIBEAULT, Jr. v. CITY OF NEW BEDFORD et al.

Supreme Judicial Court of Massachusetts, Bristol.

Argued March 7, 1961.

Decided May 3, 1961.

William B. Perry, Jr., Asst. City Sol., New Bedford (Bernard Kestenbaum, New Hartford, with him), for respondent.

George A. Cataldo, Boston, for petitioner.

Before WILKINS, C. J., and WILLIAMS, WHITTEMORE, CUTTER and SPIEGEL, JJ.

WHITTEMORE, Justice.

The order in the Superior Court was that a writ of mandamus issue directing the mayor and the acting chief of police of New Bedford to reinstate the petitioner as a patrolman in the police department and that he be considered as having served so much of his probationary period under G.L. c. 31, § 20D, as is represented by the period of time from May 28, 1956, ¹ to September 26, 1956,1 inclusive, that the petitioner be granted leave without loss of pay from November 4, 1956, to February 12, 1957, and that he be restored to his membership in the city's retirement system.

The mayor, the acting chief (hereinafter the chief), and the city, as respondents, claimed exception to the denial of requests for rulings. The issues presented are of law only. Andrews v. Board of Registrars of Voters of Easton, 246 Mass. 572, 576-577, 141 N.E. 507. Compare the appeal, with equity procedure, under G.L. c. 213, § 1D; Murtagh v. Registrars of Voters of Peabody, 340 Mass. 737, 166 N.E.2d 702.

The bill of exceptions does not summarize any evidence. It contains the judge's 'Finding of Facts, Rulings of Law and Order for Decree' and incorporates exhibits. The judge found as follows: On May 28, 1956, the petitioner qualified as a police officer and began his duties as a patrolman; on September 26, 1956, while on duty patroling his beat he suffered chest pain and 'was distressed' until the end of his tour; during the evening he had assisted in ambulance duties, 'involving heavy lifting'; he experienced sharp pains when he climbed stairs on his return home and he awoke with 'belching pains' the next morning. He saw a doctor on September 27; an electrocardiograph on September 28 confirmed a diagnosis of coronary insufficiency; he was taken to the hospital and remained there twenty-six days; he was on vacation and sick leave, and was paid through November 3, 1956; from November 4 to February 7, 1957, his name remained on the police roster; on January 31, 1957, a police sergeant called on the petitioner and learned that he was to take a physical examination around February 6, 1957, and if he passed he would be able to return to light work; by letter of February 9, ² the chief notified the petitioner that since he had not satisfactorily completed his six months' probationary period he had been 'discontinued as a member of this department and * * * [his] name was accordingly taken off the payrolls'; on February 11, 1957, the petitioner by letter of his attorney ³ notified the chief he was ready to return to light duty.

Concluding findings and rulings, which appear ahead of the order that the writ issue, are as follows: 'I find that Thibeault sustained injury in the performance of his duty without fault of his own on September 26, 1956. I find that Thibeault's probationary period of six months had not expired at the time of the notice from the acting chief of police dated February 9, 1957. I find that a copy of such notice was not sent to the director in accordance with G.L. c. 31, § 20D. I find that the physical disability on the part of the petitioner halted temporarily the running of the probationary period.'

The bill states the agreement of the parties that the petitioner on May 3, 1957, demanded of the mayor that he be reinstated as a police officer and the refusal of the demand.

Although the judge's decision impliedly suggests that the conclusion that the petitioner sustained injury in the performance of his duty may be intended as a conclusion on the subsidiary facts found, this does not expressly appear. The rule applies that the decision imports a finding of every fact necessary to sustain it which is not expressly negatived. Matter of Loeb, 315 Mass. 191, 196, 52 N.E.2d 37; M. DeMatteo Const. Co. v. Commonwealth, 338 Mass. 568, 572, 156 N.E.2d 659. See Stowell v. H. P. Hood & Sons, Inc., 288 Mass. 555, 556-557, 193 N.E. 234; Commonwealth v. Hogan, Mass., 170 N.E.2d 327. ⁴ It is not significant, therefore, that the detailed findings in respect of the heart attack, in the absence of expert testimony, appear insufficient to support a conclusion that there was a service connected injury (Vartanian v. Berman, 311 Mass. 249, 253, 40 N.E.2d 867; LeBlanc's Case, 334 Mass. 265, 267, 134 N.E.2d 900; Sevigny's Case, 337 Mass. 747, 749, 151 N.E.2d 258; Berardi v. Menicks, 340 Mass. 396, 164 N.E.2d 544), or that an exhibit tends to show the absence of a basis for such a conclusion. ⁵ Other evidence may have afforded support for the finding.

At issue therefore are the status and rights of a probationary patrolman, injured in the course of his duties.

General Laws c. 31, § 20D, provides, with exceptions not relevant, that 'no person appointed in the official or labor service shall be regarded as holding office or employment therein until after he has actually performed the duties of the office or position for a probationary period of six months [emphasis supplied] * * *. If the conduct or capacity of a person serving a probationary period under an appointment in the official service or labor service, or the character or quality of the work performed by him, is not satisfactory to the appointing authority, he may, at any time after such person has served thirty days and prior to the end of such probationary period, give such person a written notice to that effect, stating in detail the particulars wherein his conduct or capacity or the character or quality of his work is not satisfactory, whereupon his service shall terminate. The appointing authority shall at the same time send a copy of such notice to the director. In default of such a notice, the appointment of such person shall become permanent upon the termination of such period.'

We hold that the probationary period under G.L. c. 31, § 20D, is a six months' period of active duty. See Scott v. Manager State Airport, Hanscom Field, 336 Mass. 372, 376, 145 N.E.2d 706. It follows that February 9, 1957, was before 'the end of such probationary period' and that the notice of termination under § 20D was timely under the express requirements of that section.

As the petitioner when injured was 'a police officer,' G.L. c. 41, § 111F, applied to him. That section provides that 'Whenever a police officer * * * is incapacitated for duty because of injury sustained in the performance of his duty without fault of his own, he shall be granted leave without loss of pay for the period of such incapacity; provided, that no such leave shall be granted for any period after such police officer * * * has been retired or pensioned in accordance with law or for any period after a physician designated by the board or officer authorized to appoint police officers * * * determines that such incapacity no longer exists. All amounts payable under this section shall be paid at the same times and in the same manner as, and for all purposes shall be deemed to be, the regular compensation of such police officer * * *.'

Notice under G.L. c. 31, § 20D, of termination of employment cannot cut off an accrued right to a leave of absence with pay under G.L. c. 41, § 111F. See Yates v. City of Salem, Mass., 174 N.E.2d 368. ⁶ The effect of such a notice given during a leave of absence period is therefore suspended until the end of that period. Similarly a notice given under c. 31, § 20D, during a period of service connected incapacity cannot bar timely application for such disability retirement allowances, if any, as the officer...