CITY OF EVERETT vs. CITY OF REVERE.

SPALDING, J. This is an action of contract brought by the city of Everett for reimbursement for accidental disability pension payments made to Domenic Coveluzzi, a former member of its fire department. The judge found for the plaintiff in the amount of $13,402.66. The defendant excepted to the finding, two rulings on evidence, and the denial of several requests for rulings.

We summarize the evidence as follows: On August 3, 1953, Coveluzzi, a member of the contributory retirement system, responded with his company to a fire alarm in Revere under a "mutual aid plan." At the fire Coveluzzi was observed to be in an "exhausted condition" and later "appeared to be in pain." On August 5, he failed to report for duty and "was reported sick"; he never returned to duty after that date. The medical panel's report showed that Coveluzzi was suffering from heart trouble. On June 30, 1954, Coveluzzi filed an application for accidental disability retirement with the Everett retirement board, and the board voted to grant him a pension as of July 31, 1954. There was no evidence of any notice given to the defendant of the retirement hearing. It was agreed by counsel that proper notices were sent to the defendant's treasurer with reference to the plaintiff's claim for reimbursement under the provisions of G. L. c. 32, Section 7 (4) (a) and (b).

Some time between 1922 and 1925 the chiefs of the fire departments of Everett, Chelsea, and Revere met for the purpose of establishing a mutual aid plan. Under the plan "the fire alarm systems of each municipality were connected with each other so that an alarm which was sounded in Revere would also be recorded in [the alarm system of] Chelsea and . . . Everett." Assignment cards were drawn up which provided that "when an alarm was rung in any

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one of the cities under the mutual aid plan each respective city would perform the assignment designated by said cards." Coveluzzi came to the fire in Revere on August 3, 1953, in accordance with the prearranged assignment prescribed in these cards. A city not a party to the mutual aid system would have to call upon another city for aid and the furnishing of such aid by the city called upon would rest in the discretion of its fire chief.

The judge found that Coveluzzi, since deceased, "was a member of the contributory retirement system at the time of his injuries as covered by G. L. c. 32, Section 7 (4) (a) and (b)," and that with respect to his "eligibility to receive the accrued benefits all matters have been complied with."

The plaintiff's case is grounded on G. L. c. 32, Section 7 (4) (a) and (b) (as appearing in St. 1945, c. 658, Section 1), [Note 1] which imposes a mandatory requirement on a governmental unit receiving assistance to reimburse the assisting governmental unit for any pensions paid on account of injuries to its members.

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The defendant requested rulings that "3. This cause is covered by the provisions of G. L. c. 48, Section 59A." and "4. The law of c. 32, Section 7 (4) (a) and (b), is not applicable in this action." These requests were denied. It is the defendant's contention that G. L. c. 48, Section 59A (as amended through St. 1960, c. 14), [Note 2] controls, in which event reimbursement by the city of Revere would not be mandatory, for Section 59A provides that "[a]ny city . . . aided under and in accordance with this section . . . may reimburse . . . [any city rendering aid under this section] in whole or in part for any payments lawfully made to any member of its fire department . . . on account of injuries or death suffered by him in the course of rendering aid as aforesaid or of death resulting from such injuries" [emphasis supplied].

We are of opinion that G. L. c. 48, Section 59A, governs rather than G. L. c. 32, Section 7 (4). The former deals specifically and in detail with the subject of mutual aid between fire departments; the latter is a general provision dealing with any aid rendered by one governmental unit to another. The statutes to some extent overlap, for the aid mentioned in Section 7 (4) could include fire protection; but it could include many other kinds of assistance. The schemes under each, however, are quite different. As the defendant argues, the "whole purpose . . . of the mutual aid plan [established under Section 59A] is to create an enduring obligation with the respective benefits and burdens clearly established and

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agreed upon between the . . . [municipalities]." Under Section 7 (4) the aid that one unit would be called upon to give to another would be discretionary and not in pursuance of a prearranged plan.

The evidence establishes that the aid furnished by the plaintiff in the case at bar was pursuant to a mutual aid plan, and no contention is made to the contrary. If we were to construe c. 32 as covering the case at bar, then G. L. c. 48, Section 59A, would, for all practical purposes, be nugatory. We do not believe the Legislature intended such a result, especially in view of the fact that Section 59A was amended as recently as 1960. "A statute is to be interpreted with reference to the pre‰xisting law. . . . If reasonably practicable, it is to be explained in conjunction with other statutes to the end that there may be an harmonious and consistent body of law. . . . Statutes `alleged to be inconsistent with each other, in whole or in part, must be so construed as to give reasonable effect to both, unless there be some positive repugnancy between them.' Brooks v. Fitchburg & Leominster Street Railway, 200 Mass. 8, 17." Walsh v. Commissioners of Civil Serv. 300 Mass. 244, 246. We perceive no such repugnancy here. The defendant's exceptions to the denial of its third and fourth requests are sustained.

A question of evidence requires discussion, as it is likely to arise on a retrial of the case. Thomas J. McCarrick, who was the fire chief of the defendant's fire department on August 3, 1953, after describing the mutual aid plan, was asked: "Now in connection with this mutual aid fire system, what are the arrangements pertaining to injury to firemen or damage to fire equipment of each city while responding under the agreement to a fire in the other city?" An objection by the plaintiff was sustained. The defendant excepted and stated that the witness would testify that "it was understood and agreed that each fire department would take care of their own firemen both as to injury and as to pensions and that each city would take care of the damage suffered by their equipment while at the other city fire."

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Unless this evidence was excluded under the best evidence rule -- and it is not apparent that it was -- it should have been received, as it was offered to show the "conditions and restrictions" [Note 3] agreed upon by the parties touching the subject of payment for injuries. Passanessi v. C. J. Maney Co. Inc. 340 Mass. 599, 604.

Exceptions sustained.