Goldstein v. State

• Decision Date: 21 November 1939
• Citation: 24 N.E.2d 97,281 N.Y. 396
• Parties: GOLDSTEIN et al. v. STATE.
• Court: New York Court of Appeals Court of Appeals

281 N.Y. 396

24 N.E.2d 97

GOLDSTEIN et al.

v.STATE.

Court of Appeals of New York.

Nov. 21, 1939.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Morris Goldstein and Becky Goldstein, as administrators of the estate of Jack Goldstein, on a claim filed against the State of New York for damages growing out of the death of plaintiffs' son. From a judgment of the Appellate Division, 257 App.Div. 897, 12 N.Y.S.2d 1009, which affirmed a judgment of the Court of Claims awarding to plaintiffs $17,975.04, the State of New York appeals.

Judgments reversed and claim dismissed.

LEHMAN, J., dissenting. John J. Bennett, Jr., Atty. Gen. (Henry Epstein, Sol. Gen., and Joseph L. Delaney, Leon M. Layden, and Jack Goodman, Asst. Attys. Gen., of counsel), for appellant.

Samuel S. Leibowitz and Julius Applebaum, both of New York City, for respondents.

HUBBS, Judge.

Claimants filed a claim against the State for damages growing out of the death of their son as the result of the negligence of a fellow private of the State militia and an officer thereof. The claim is based on section 130 of the Decedent Estate Law (Consol.Laws, ch. 13).

At the commencement of the trial on the claim before the Court of Claims the State moved to dismiss the claim on the ground that ‘there were only two remedies open to claimants and which were exclusive: (a) under the Military Law of the State; (b) under the Workmen's Compensation Law.’ The motion was renewed at the close of the evidence and subsequently granted. The judgment dismissing the claim was reversed by the Appellate Division, upon the law, and the claim was remitted to the Court of Claims for a new trial. 256 App.Div. 141, 9 N.Y.S.2d 799. At the new trial the record of the first trial was used and by stipulation it is made a part of the record on appeal before this court. Following the decision of the Appellate Division the Court of Claims awarded to the claimants $15,493.50, with interest. The State appealed to the Appellate Division, which unanimously affirmed the judgment and granted permission to appeal to this court. The only points urged in this court by the State are the two grounds quoted above in the motion made by the State for a dismissal of the claim.

It is urged by the State that the deceased, a private of the State militia, who was engaged in active service at the time of the injury which caused his death, and suffered such injury as a result of the negligence of a fellow private and of a militia officer, was an employee of the State and that, therefore, the Workmen's Compensation Law (Consol.Laws, ch. 67) afforded the exclusive remedy. It is conceded that if deceased was an employee of the State covered by that law there can be no recovery in this proceeding.

Section 2 of the Workmen's Compensation Law, in part, defines an employer as follows: ‘3. ‘Employer,’ except when otherwise expressly stated, means a person * * * employing workmen in hazardous employments including the state * * *.'

An employee is defined by section 2, subdivision 4, as follows: ‘4. ‘Employee’ means a person engaged in one of the occupations enumerated in section three or who is in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment upon the premises or at the plant * * *.'

Section 2, subdivision 5, defines employment as follows: ‘5. ‘Employment’ includes employment only in a trade, business or occupation carried on by the employer for pecuniary gain * * *.'

Section 3 reads: ‘1. Hazardous employments. Compensation shall be payable for injuries or death incurred by employees in the following employments: * * *.’

Then follow groups of different employees covered by the statute. Group 16 reads as follows: ‘Group 16. Any employment by the state, notwithstanding the definitions of the terms ‘employment,’ ‘employer’ or ‘employee’ in subdivisions three, four and five of section two of this chapter.'

It is contended that by this group the Legislature intended to bring within the provisions of the Workmen's Compensation Law certain employees of the State who might not be covered in the other groups of employees specified in section 3.

The deceased, while in active service in the militia, received $1.25 per day pay. It is, therefore, urged by the State that as he received pay from the State and was engaged in the service of the State he was an employee of the State within the meaning of group 16 of section 3 of the Workmen's Compensation Law. We cannot accept that conclusion.

The underlying purpose of the Workmen's Compensation Law was an attempt to spread the loss caused by injuries to or death of employees engaged in hazardous occupations so that the entire loss should not fall upon unfortunate employees suffering injuries or, in case of death, upon their dependents. Phoenix Indemnity Co. v. Staten Island Rapid Transit Ry. Co., 251 N.Y. 127, 132, 167 N.E. 194. Gradually, by amendments, the statute has been extended to include many who were not covered by the original statute.

In determining whether particular persons or classes are covered it is necessary to consider the statute as a whole and the purpose embodied in its enactment. When so considered it seems to us to be apparent that it was never intended to cover militiamen while engaged in active service. There are many reasons which lead to that conclusion.

Working men and women, employees of others, under our system of government are free men and women. They have the same standing, rights and privileges possessed by other members of our body politic. They may work or not according to their own free will. If engaged in work they may quit working at any time if they desire without liability therefor unless prevented by the terms of some express contract. They may organize labor unions for the purpose of improving their working conditions. They may engage in strikes against their employers to compel their employers to grant them certain rights or privileges which they deem themselves entitled to. They may even engage in peaceful picketing of their employers' places of business to induce their employers to grant them the rights which they claim.

Upon the other hand, when a man becomes a member of the State militia he must, when in active service, surrender for the benefit of the State certain of the privileges enjoyed by working men who are employees. Under the Military Law (Consol.Laws, ch. 36) a member of the militia may be tried for various military offenses, for acts which are not illegal under any other law. He may be tried and punished by a military tribunal and if found guilty may be punished by fines and in certain cases by imprisonment. He is at all times subject to the commands of his superior officers. He cannot quit while in active service without consent of his superiors. Members of the State militia do not become members for the purpose of receiving the small per diem allowances awarded them by the State while they are in active service. ‘The militia of the state shall consist of all able-bodied male citizens * * * between the ages of eighteen and forty-five, who are residents of the state * * *’ (subject to certain exemptions). Military Law, s 1. The Governor has power, in case of necessity, to order into active service of the State any part of the militia that he may deem proper. Id. s 8. Thus every man who is a resident of the State between the ages of eighteen and forty-five years, subject to certain exceptions, may in case of necessity be required, upon the call of the Governor, to enter the active service of the State as a part of the militia. It seems clear that one who joins the State militia and is engaged in active service therein is in no sense an employee of the State. He is simply performing a duty which he owes to the sovereign State as a resident and citizen. It makes no difference whether he does that voluntarily in time of peace or in response to the call of the Governor in time of trouble. It should also be noted that the Military Law makes provision for compensating those injured in active service and for their dependents in case of death. Military Law, ss 220 to 224. Those provisions were in force long before the enactment of the Workmen's Compensation Law and have never been repealed. We are persuaded that the Workmen's Compensation Law does not cover militiamen while engaged in active service. They are not employees of the State within the meaning of the law. Hays v. Illinois Terminal Transp. Co., 363 Ill. 397, 2 N.E.2d 309.

The question still remains whether the State has waived its immunity from liability to members of the militia and obligated itself to respond in damages for injuries negligently inflicted in active service by one member of the militia upon...