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01/18/78 DAVID K. JONES v. TOWN WAYLAND *FN1

January 18, 1978

DAVID K. JONES
v.
TOWN OF WAYLAND *FN1



Middlesex. Bill in equity filed in the Superior Court on March 22, 1972. The suit was heard by John P. Sullivan, J., on a master's report. After review by the Appeals Court the Supreme Judicial Court granted leave to obtain further appellate review.

Hennessey, C.j., Quirico, Braucher, Wilkins, & Abrams, JJ.

SYLLABUS BY THE COURT

Police, Incapacity, Resignation, Municipality's liability. Practice, Civil, Appeal, Costs. Damages, For tort. Words, "Police officer."

The opinion of the court was delivered by: Abrams

Subsidiary findings made by a master who was not directed to report the evidence are open to attack only on the basis that they are clearly erroneous. [254-255]

Where subsidiary findings are reported by a master, both the trial Judge and the appellate court are obligated to draw their own inferences from the findings. [255]

The provisions of G. L. c. 41, § 111F, were applicable to a "special" police officer appointed to a six-month term of employment. [255-257]

In an action seeking compensation under the provisions of G. L. c. 41, § 111F, evidence was sufficient to support findings that the plaintiff was "incapacitated for duty because of injury sustained in the performance of his duty without fault of his own" and that the physician appointed by the board of selectmen to examine police officers injured while discharging their functions did not make a determination that "such incapacity no longer exists." [257-259]

A police officer's resignation, upon its acceptance by a town's board of selectmen, terminated his right to payments under G. L. c. 41, § 111F. [259-261]

In an action by a police officer to recover payments due him under the provisions of G. L. c. 41, § 111F, the Judge erred in refusing to reduce the defendant's liability by the amount paid to the officer for lost wages under an insurance policy. [261-263]

The plaintiff, David K. Jones (Jones), brought an action pursuant to G. L. c. 231A, § 1, seeking a declaration that he is entitled to compensation from the defendant town of Wayland (Wayland), under G. L. c. 41, § 111F, as appearing in St. 1964, c. 149, *fn2 as a police officer "incapacitated for duty because of injury sustained in the performance of his duty without fault of his own."

As ordered by a Judge of the Superior Court, hearings were held before a master. The order of reference to the master did not require him to report evidence except as necessary for consideration of questions of law. The master concluded that the plaintiff was entitled to recover compensation under the statute from the date of his injury to the date of the expiration of his appointment. On September 24, 1973, the plaintiff moved to confirm the master's report and for entry of a final decree. The defendant then filed its objections to the master's report as required by former Rule 90 of the Superior Court and moved for recommittal to the master for the purpose of furnishing an "accurate and fair summary of so much of the evidence as shall be necessary to enable the Court to determine the questions of law [raised by the defendant's objections]." The motion was allowed, and the report of the master on recommittal was filed on December 3, 1973. On January 10, 1975, the Superior Court Judge filed an opinion based on his adoption of the master's subsidiary findings and on additional evidence presented in the Superior Court. On March 20, 1975, he declared the rights of the parties and ordered the entry of judgment for the plaintiff. The defendant noted its appeal on March 28, 1975.

On December 28, 1976, the Appeals Court reversed the judgment of the Superior Court Judge and ordered the cause remanded "for a redetermination of the net amount of the town's liability (if any) to the plaintiff." Jones v. Wayland, 4 Mass. App. Ct. 725, 737 (1976). We granted the plaintiff's application for further appellate review. Since we are in substantial agreement with the Appeals Court, we reverse the judgment of the Superior Court, and we remand the case for further proceedings consistent with the views expressed herein.

The relevant facts, as recounted by the master in his subsidiary findings which were adopted by the trial Judge, are as follows. On October 29, 1970, the plaintiff was appointed a special police officer by Wayland for a term expiring on April 30, 1971. He was paid at the rate of $3.70 an hour for an eight-hour day. His duties were similar to those performed by regular police officers: cruiser patrol, traffic direction, and appeance in court for the ...


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