Wormstead v. Town Manager of Saugus

• Decision Date: 28 March 1974
• Citation: 2 Mass.App.Ct. 103,308 N.E.2d 921
• Parties: Charles N. WORMSTEAD, III v. TOWN MANAGER OF SAUGUS et al. 1
• Court: Appeals Court of Massachusetts

Page 921

308 N.E.2d 921

2 Mass.App.Ct. 103

Charles N. WORMSTEAD, III v. TOWN MANAGER OF SAUGUS et al. ¹

Appeals Court of Massachusetts, Essex.

Argued Jan. 18, 1974.

Decided March 28, 1974.

Bradbury Gilbert, Town Counsel, Boston (David L. Taylor, Boston, with him), for defendants.

Francis J. Tobin, Lynn, for plaintiff.

Before HALE, C.J., and ROSE, GOODMAN, GRANT and ARMSTRONG, JJ.

GRANT, Justice.

This is a bill for declaratory relief brought by a Saugus police officer who seeks a binding determination that he is entitled, by reason of the provisions of G.L. c. 41, § 111F (as appearing in St.1964, c. 149), ² to be granted leave without loss of pay for the period of an incapacity for duty. The case was referred to a master under Rule 86 of the Superior Court (as amended effective June 1, 1970). A judge, acting in response to various objections filed by the plaintiff, modified the master's report in certain respects and entered an interlocutory decree confirming the report as so modified. The defendants have appealed from that interlocutory decree and from the final decree, which determined that the plaintiff was entitled to the relief prayed for. The following is a summary of the subsidiary facts found by the master.

On the night in question (November 27, 1971) the plaintiff, a captain in the Saugus police department, was the commanding officer of the department's night division. As such, and except as hereinafter indicated, he had charge of the department during his tour of duty (5:00 P.M. to the following 1:00 A.M.), subject only to the orders of the chief of the department; he was cloaked with discretionary authority, in the chief's absence to 'take over' in the event of serious crimes or other emergencies; he supervised the activities of six other officers. His primary duty was in the station. The principal exception to these arrangements was that the plaintiff was not held responsible for what might happen during his scheduled lunch period; the desk officer whom the plaintiff might leave in charge of the station was delegated, and took the responsibility for, the entire night division and what might occur during the plaintiff's lunch period. Only if that officer were faced with a situation he could not handle would he get in touch with the plaintiff. The plaintiff was considered to be 'off duty' while at lunch, although he was paid by the town for the time so spent as it was included in his forty-hour work week.

The particular time for the plaintiff's lunch period (8:00 P.M. to 8:45 P.M.) was established by a written order of the chief scheduling staggered lunch periods for all the members of the night division which were to be observed unless an emergency should arise. The purpose of the lunch periods was to allow each officer to get something to eat during his tour of duty. During his scheduled lunch period the plaintiff, like any other officer, could go anywhere or do anything he wanted so long as he left word at the station as to where he could be reached (by telephone or by walkietalkie) in the event of an emergency.

Like every other officer, the plaintiff was on call twenty-four hours a day, whether on or off duty. There had been occasions when the plaintiff had been recalled to the station during his lunch period. An off-duty officer who observed an accident caused by a driver who was under the influence of intoxicating liquor was expected to stop the offender and arrest him. The plaintiff had, on past occasions, made arrests during his lunch period.

On the night in question the plaintiff started his scheduled lunch period at 8:00 P.M., leaving the desk officer in charge of the station. He drove to his home in his own private automobile. The trousers were the only part of his uniform which he was wearing; he carried his service revolver. At 8:30 P.M. the plaintiff picked up some investigation papers involving a stolen police cruiser which (for some unexplained reason) were in his home. As he was driving back to the station in his own automobile he was involved, without fault on his part, in an automobile accident which, it is agreed, resulted in incapacitating him for further police duty (at least until the time of the hearing before the master).

Immediately following the accident the plaintiff got out of his automobile, identified himself as a police officer to the operator of the other automobile, and raised his arms to push that operator out of the way of traffic passing in the roadway. As he raised his arms he felt a shock of pain across his back and shoulders. He directed traffic around the scene of the accident until other officers arrived. He did not arrest the other operator, who was arrested by another officer and subsequently prosecuted for driving under the influence of intoxicating liquor. He drove his own badly damaged automobile to his home, taking with him the investigation papers previously referred to. ³ He was then taken to a hospital in a police cruiser.

The plaintiff has been refused leave without loss of pay for the reason, as stated by the chief of police (after having sought the advice of town counsel), that the injuries sustained by the plaintiff were 'not considered to be . . . service connected.'

1. We deal first and briefly with the action of the court below in sustaining six of the plaintiff's seven objections to certain findings and conclusions set out in the master's report. The first objection was sustained on the ground that a particular subsidiary finding was not warranted by the evidence. Such action was in error because the evidence before the master was not taken stenographically and because the plaintiff had made no effort to bring any of the evidence before the court in the manner provided by the second paragraph of Rule 90 of the Superior Court (1954). The announced basis for the court's sustaining the plaintiff's second objection was that certain subsidiary findings made by the master did not warrant another subsidiary finding made by him. 'Where the evidence is not reported both the trial judge and the appellate justices are required to treat the master's findings of fact as binding unless they are mutually inconsistent, contradictory, plainly wrong or vitiated in view of the controlling law.' SELECTMEN OF HATFIELD V. GARVEY, MASS., 291 N.E.2D 593, 596.^A The master's findings in this case were not subject to any of the defects just listed. The other four objections may be ignored because they were addressed to ultimate conclusions of the master. ⁴ '(W)here (as here) the master in his report sets forth all of the subsidiary findings upon which he bases an ultimate conclusion, it is the duty of the trial court, and of this court, of draw its own inferences from those findings.' Corrigan v. O'Brien, 353 Mass. 341, 346, 231 N.E.2d 554, 557 (1967). See also BLANCHETTE V. BLANCHETTE, MASS., 287 N.E.2D 459^B and cases cited.

2. As was stated by the Supreme Judicial Court in the case of Pettinella v. Worcester, 355 Mass. 412, 415, 245 N.E.2d 451 (1969), 'The nub of the plaintiff's contention is whether it can be found . . . that he was in the performance of his duty when injured. Boston Retirement Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 109, 162 N.E.2d 821 (1959), held that language similar to that of G.L. c. 41, § 111F, is to be interpreted in a more restrictive sense than the language of § 26 of the Workmen's Compensation Act, G.L. c., 152. ⁵ As was there stated, the statute is to be so interpreted that recovery is predicated on the fact that the employee's injuries resulted from his duties and also that they were sustained while in the performance of those duties. These are conjunctive requirements.' In the Pettinella case it was determined that a police officer who, without fault on his part, was injured and incapacitated while necessarily using his own automobile in connection with an extra-duty traffic detail to which he had been specifically assigned by...