Wormstead v. Town Manager of Saugus

• Citation: 366 Mass. 659,322 N.E.2d 171
• Parties: Charles N. WORMSTEAD, Third, v. TOWN MANAGER OF SAUGUS et al. 1
• Decision Date: 20 January 1975
• Court: United States State Supreme Judicial Court of Massachusetts

Page 171

322 N.E.2d 171

366 Mass. 659

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

Supreme Judicial Court of Massachusetts, Essex.

Argued Nov. 6, 1974.

Decided Jan. 20, 1975.

Francis J. Tobin, Lynn, for plaintiff.

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

Before TAURO, C. J., and QUIRICO, BRAUCHER, KAPLAN and WILKINGS, JJ.

QUIRICO, Justice.

The plaintiff, a policeman, brought this bill for declaratory and other relief in the Superior Court to establish his claim of right to be granted leave without loss of pay under G.L. c. 41, § 111F, as appearing in St.1964, c. 149. This statute, in so far as it pertains to this case, grants leave without loss of pay to a police officer 'incapacitated for duty because of injury sustained in the performance of his duty without fault of his own.'

The case was referred to a master, who, after holding hearings, found a number of subsidiary facts and concluded therefrom that the plaintiff's injury was not sustained in the performance of his duty. The trial judge, however, entered an interlocutory decree by which he (a) sustained several exceptions made by the plaintiff to the master's report, (b) ruled that the master's ultimate conclusion was not supported by the subsidiary findings, and (c) found and ruled that the plaintiff's injury was sustained in the performance of his duty within the meaning of G.L. c. 41, § 111F. The judge accordingly entered a final decree granting her relief requested by the plaintiff. The defendants appealed and the appeal was entered in the Appeals Court. That court, holding that the plaintiff's injury was not sustained in the performance of his duty, reversed both the interlocutory and final decrees. It further ordered that a new interlocutory decree be entered confirming the master's report as filed and that a new final decree be entered declaring that the plaintiff is not entitled to leave without loss of pay under G.L. c. 41, § 111F. Wormstead v. Town Manager of Saugus, --- Mass.App. ---, --- - --- ^a 308 N.E.2d 921 (1974). The plaintiff applied to us for further appellate review, and we granted the application. G.L. c. 211A, § 11, inserted by St. 1972, c. 740, § 1. See S.J.C. Rule 3:24, § 7, 359 Mass. 834, and fn. thereon, and 838 (1972).

The order of reference to the master did not require him to report the evidence. In such circumstances, '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. ---, --- ^b, 291 N.E.2d 593, 596 (1973). Where, on the other hand, as in this case, '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, to draw its own inferences from those findings.' Corrigan v. O'Brien, 353 Mass. 341, 346, 231 N.E.2d 554, 557 (1967). These principles apply equally whether the case is before us for initial appellate review or following a decision of the Appeals Court. Ballantine v. Falmouth, --- Mass. ---, --- [366 Mass. 661] fn. 2, ^c 298 N.E.2d 695 (1973). Ford v. Flaherty, --- Mass. ---, ---, and fn. 3, ^d 305 N.E.2d 112 (1973). In view of these rules, we here summarize the findings we consider pertinent to the only issue before us: whether the plaintiff's injury occurred in the performance of his duty as that term is used in G.L. c. 41, § 111F. ²

On November 27, 1971, the plaintiff, a captain in the Saugus police department, was the commanding officer of that department's night division, with a tour of duty from 5 P.M. to 1 A.M. the following morning. He was assigned to the station and had charge of the police department during his tour of duty, subject only to orders of the chief of police. At 8 P.M., the plaintiff took his lunch break, leaving the desk officer in charge of the station, and made the four-minute drive to his home in his own automobile. He was wearing civilian clothes except that he had on his uniform trousers; he carried his service revolver. On arriving home, he had something to eat and then watched television until 8:30 P.M. At that time he collected some police investigation papers which were in his house and left to return to the station. While he was driving back to the station, in the exercise of due care, his automobile was struck in the rear by another vehicle. In this collision the plaintiff was severely injured. He was unable to return to work from the day of the accident until, at least, some time after the master filed his report. The record dose not disclose whether he has returned at all.

The circumstances and nature of the plaintiff's lunch break are clearly of primary significance here. An officer's employment contract provides that he 'shall work 40 hours' a week, and the town pays an officer for a forty-hour week. Provision for a lunch break is not made in the employment contract.

On July 10, 1967, however, the chief of police by written order established a schedule of lunch periods for the night division which was to be followed in the absence of an emergency. The purpose of the break is to allow the officer to get something to eat during his tour of duty. Under the schedule, the lunch period for the captain in charge of the night division was set from 8 P.M. to 8:45 P.M. During his lunch period any officer, including the commanding officer, can go where he pleases, but he must leave word where he can be reached by telephone or walkie-talkie in case of an emergency. The desk officer is left in charge in the absence of the captain. As noted above, time spent during the lunch period is part of an officer's forty-hour work week; it is similarly part of his eight-hour shift. Unless he works beyond these required periods of time, an officer is not paid overtime wages. Exclusive of the luch period, an officer works less than the forty hours weekly for which he is paid.

The plaintiff often performed police functions, such as making arrests, while on his lunch break. On some occasions he was called back to the station when something 'technical' came up. At times, when he was engaged in investigations, he took no break. An officer 'is considered to be 'off duty' while at lunch, that is to say, not acting as a police officer, but if he is notified for example, of robbery and he interrupts his lunch hour to make an arrest, he is then 'on duty. " ³

For reasons hereafter stated, the plaintiff is entitled to leave without loss of pay. We note first, however, that all that must be established in this case to create an entitlement under G.L. c. 41, § 111F, the disability being conceded, is the sustaining of an injury in the performance of duty; the statute does not additionally require proof that the injury specifically resulted from that duty. On this point, G.L. c. 41, § 111F, is in contrast to G.L. c. 32, § 7, relating to accidental disability retirement, which does impose such a restrictive dual requirement. ⁴ Boston Retirment Bd. v. Contributory Retirement Appeal Bd., 340 Mass. 109, 110--111, 162 N.E.2d 821 (1959). Moreover, as we pointed out in Pettinella v. Worcester, 355 Mass. 412, 415--416, 245 N.E.2d 451, 454 (1969): 'It should be noted that the act which we interpret here (G.L. c. 41, § 111F), as originally proposed, contained language which would have permitted continued compensation to police and firemen incapacitated due to 'injuries incurred or illnesses contracted through no fault of their own in the actual performance of duty' . . .. However, the statute as finally enacted changed the requirement for compensation to 'injury sustained in the performance of his duty without fault of his own.'

Thus we cannot construe G.L. c. 41, § 111F, as the defendants request us to do, to require a direct connection between the injury in question and a specific police activity unique to the nature of law enforcement. We do not accept the defendants' arguments: (1) 'it is immaterial that the police officer or employee is being paid for the actual time when the injury was received or that the unjury took place during his tour of duty'; (2) 'the prerequisite (to recovery) is that at the time of injury he is performing a police duty or a specific duty of his employment'; or (3) 'the injury must arise out of a risk or condition peculiar to the employment and not common to all persons.' We reject these arguments in favor of a broader construction of the words 'in the performance of his duty' comparable to the words 'arising out of and in the course of his employment' contained in § 26 of the Workmen's Compensation Act, G.L. c. 152. ⁵

The construction of the 'arising out of' clause is settled law: "An injury arises out of the employment if it arises out of the nature, conditions, obligations or incidents of the employment; in other words, out of the employment looked at in any of its aspects." Papanastassiou's Case, --- Mass. ---, --- - ---, ^e 284 N.E.2d 598, 600 (1972), quoting Caswell's Case, 305 Mass. 500, 502, 26 N.E.2d 328 (1940), and Bator's Case, 338 Mass. 104, 106, 153 N.E.2d 765 (1958). The meaning of the 'in the course of' clause is equally well established. As stated in Locke, Workmen's Compensation, § 261 (1968): 'While the words 'arising out of' refer to the physical cause of the injury and the activity of the employee, the words 'in the course of' refer mainly to the time, place, and circumstances of the injury. Did the injury occur within the hours of work? Was the place where the injury occurred closely enough related to the employment so as reasonably to be included within its risks? Were there any attendant circumstances which would enlarge or restrict the ordinary time or placed covered by the employment?'

In looking at the plaintiff's employment in all of its aspects, as the foregoing...