FERDINAND J. PETTINELLA vs. CITY OF WORCESTER & others.

REARDON, J. This is a bill in equity for a declaratory decree brought under G. L. c. 231A, Section 1, seeking a declaration that the plaintiff was eligible for his pay as a policeman under G. L. c. 41, Section 111F, [Note 1] at the time he was injured on November 1, 1962, in Worcester. Following a hearing by a Superior Court judge a decree was entered that the plaintiff "was entitled to his full pay under Chapter 41, Section 111F for the period of his disability which started on November 1, 1962, up to February 13, 1963, for a period of fifteen (15) weeks," and that the records of his accumulated sick leave should be corrected accordingly. The evidence is reported and there was a report of material facts. The defendants have appealed from the final decree.

There was evidence that on the night of November 1, 1962 the plaintiff, after a conversation with a police sergeant who was his superior in the Worcester department, proceeded to an assignment to traffic duty on Route 20 in Worcester to be carried out in conjunction with a traffic survey which was then and at that point under way for the State. He was to relieve another police officer at 10 P.M. and work until 7 A.M. the following morning. He was doing

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this work as extra duty, outside his regular hours, for additional compensation. It was necessary that he drive his own car to this work. After his arrival, while moving his car at the request of the officer he was relieving, it was struck in the rear by another automobile and the plaintiff was hospitalized as a result of injuries sustained in the impact. The judge found that the plaintiff suffered his injury while "acting as ordered by his superiors in the Police Department . . . acting in the performance of his duty and without fault on his part."

We deal at the threshold with several of the defendants' contentions which seem to us to lack merit. The defendant city argues that the plaintiff sustained his injuries through his own fault "by parking his automobile so as to create a traffic hazard in the correction of which . . . [he] was injured." However, assuming violation of an ordinance, this was simply evidence to be considered. It was a question of fact whether it was a cause of the mishap as opposed to a mere condition. Newcomb v. Boston Protective Dept. 146 Mass. 596, 604. Leveillee v. Wright, 300 Mass. 382, 387-389. There was a specific finding by the judge that the plaintiff was without fault in the accident, a finding which was amply supported by the evidence. Furthermore, it is far from clear that the plaintiff violated any ordinance or was otherwise negligent in the manner in which he parked his car.

It is also argued by the defendant city that it was injuriously affected by the fact that the plaintiff returned to his position of patrolman in February of 1963 and did not bring suit until August, 1967. But the plaintiff did not know that he was not being paid under c. 41, Section 111F, and that his sick leave increments were being charged. Whether the defence of laches was established was a question of fact for the judge. McGrath v. C. T. Sherer Co. 291 Mass. 35, 59-60. The burden of proof was on the defendant, and while the judge below made no specific finding relative to laches, that he ordered a decree in favor of the plaintiff is sufficient indication that he was not impressed by the defendant's contention in this regard. Certainly the defendant

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city suffered no hardship. Moseley v. Briggs Realty Co. 320 Mass. 278, 283, and cases cited.

The defendant city further invokes the defence of res judicata based on two prior actions brought in the District Court by the plaintiff in contract for the same cause, one of which was ordered dismissed without prejudice and the second "discontinued without prejudice to allow the plaintiff equitable relief in the Superior Court." In support of this contention the defendant city cites Mackintosh v. Chambers, 285 Mass. 594, and Siegel v. Knott, 318 Mass. 257. However, in these cases the prior action was decided on the merits, which barred the plaintiff in the second action. The nature of the dismissal and discontinuance of the District Court actions makes it clear that the present suit is not barred where the dismissal and discontinuance were "without prejudice." Kempton v. Burgess, 136 Mass. 192. Lakin v. Lawrence, 195 Mass. 27. Corey v. Tuttle, 249 Mass. 135. We conclude that res judicata does not apply in this case.

The nub of the plaintiff's contention is whether it can be found, as the judge found, that he was in the performance of his duty when injured. Boston Retirement Bd. v. Contributory Retirement Appeal Bd. 340 Mass. 109, held that language similar to that of G. L. c. 41, Section 111F, is to be interpreted in a more restrictive sense than the language of Section 26 of the Workmen's Compensation Act, G. L. c. 152. 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. Certain decisions elsewhere are helpful. See People ex rel. Donovan v. Retirement Bd. 326 Ill. 579; State ex rel. Schoedinger v. Lentz, 132 Ohio, 50. In the latter case a policeman shot himself to death at home while cleaning his gun, and his death was held to have occurred "while in the performance of his duty."

It should be noted that the act which we interpret here, as originally proposed, contained language which would

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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 (emphasis supplied)." 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."

Of moment also is the view defined in Hayes v. Lumbermens Mut. Cas. Co. 310 Mass. 81, where an insurance policy barred recovery if the insured met his death while performing his duty as a policeman. The insured had a special assignment of traveling about the State to lecture on safety and was killed after leaving a meeting held in connection with his work and while on his way to a relative's home to spend the night. Recovery was barred under the policy. The Boston Retirement Bd. case has distinguished the Hayes case on the ground that in the Hayes case it could not be said that the insured's duties had come to an end when the accident occurred. In the present case the plaintiff had reported on orders of his superior in his uniform to an assignment pursuant to a contract between the city and a firm engaged in conducting traffic surveys. He was to carry out his work in a location which necessitated his driving his car to a point some miles from the city. He arrived on that location consequent upon the instructions given to him by his superior and was there injured. It is our view that there was no error in the finding of the judge that he was "in the performance of his duty" when the injury occurred.

Decree affirmed with costs.