Hiser v. Davis

• Decision Date: 28 November 1922
• Citation: 137 N.E. 596,234 N.Y. 300
• Parties: HISER v. DAVIS, Director General of Railroads.
• Court: New York Court of Appeals Court of Appeals

234 N.Y. 300

137 N.E. 596

HISER

v.DAVIS, Director General of Railroads.

Court of Appeals of New York.

Nov. 28, 1922.

Action by Mabel Burke Hiser, as administratrix, against James C. Davis, Director General of Railroads. Judgment for plaintiff, entered on a verdict, was unanimously affirmed by the Appellate Division (201 App. Div. 213,194 N. Y. Supp. 275), and defendant appeals by permission.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

William Mann and Alexander S. Lyman, both of New York City, for appellant.

Thomas J. O'Neill and Leonard F. Fish, both of New York City, for respondent.

HISCOCK, C. J.

This action was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) to recover damages for the death of plaintiff's intestate alleged to have been caused by the negligence of the defendant. On this appeal two propositions of substance have been argued. They are the ones, first, that intestate at the time of his injury and death was not engaged in interstate commerce; and, second, that no recovery was permissible in behalf of the intestate's alleged child for whose benefit alone recovery was allowed.

[1] In the brief presented upon this appeal no exception is specified which survives unanimous affirmance and presents the question whether intestate was engaged in interstate commerce at the time of his death. On the argument, however, our attention was called to an exception which it is claimed does present this question, and I shall assume for the purposes of this discussion that such is the situation of the appeal. Assuming this, nevertheless, I think that the evidence permitted the jury to find that the intestate was engaged in interstate commerce, and that therefore action might be brought under the federal statute.

The defendant was engaged in operating a ferry between the foot of Forty-Second street, New York City, and Weehawken, N.J. This, of course, was interstate commerce. It had a building at the New York terminus, in which were located boilers, and from these boilers steam was supplied for heating the waiting room, lavatories, and ticket offices in the ferry house adjacently located, and also in furnishing hot water for the ferryboats. Intestate was one of a gang of men who were engaged in removing an old smokestack upon the boiler building for the purpose of replacing it with a new one. While he was thus engaged, one of defendant's ferryboats entered the slip, as claimed without any appropriate warning, and intestate was caught between the apron, so called, and the dock, and was so injured that he died. We thus have it that the intestate was at work upon a building or appliance which was an essential instrumentality in carrying on defendant's business of interstatecommerce. It was not, in my opinion, an instrumentality so remote from the operations of interstate commerce that the intestate, while working thereon, could not be said to be engaged in helping to carry on the processes of commerce. Erie R. Co. v. Collins, 253 U. S. 77, 40 Sup. Ct. 450, 64 L. Ed. 790;Pedersen v. D., L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153;Shanks v. D., L. & W. R. Co., 239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797;Guida v. Penn R. Co., 224 N. Y. 712, 121 N. E. 871.

The other proposition urged by appellant is much more troublesome. Plaintiff was married to a man named Burke. After having two children by her, Burke abandoned her and entered the war, and thereafter plaintiff claims to have heard from his brother that he was dead. Then after a short interval she married the intestate, by whom she had a child in 1918. Intermediate her marriage to the intestate and the birth of said child her former husband appeared and commenced an action against her for divorce, in which he obtained the ordinary judgment dissolving the marriage on the ground of adultery. After Burke's reappearance intestate commenced an action against plaintiff for the annulment of his marriage with her, which, of course, was bigamous, and an interlocutory decree was entered therein annulling the same. At the time this decree was entered section 1749 of the Code of Civil Procedure, as amended by Laws 1919, c. 202, provided:

‘If a marriage be declared a nullity or annulled upon the ground that the former husband or wife of one of the parties was living, the former marriage being in force, if it appears, and the judgment determines, that the subsequent marriage was contracted by at least one of the parties thereto in good faith, and with the full belief that the former husband or wife was dead or that the former marriage had been annulled or dissolved, or without any knowledge on the part of the innocent party of such former marriage, a child of such subsequent marriage is deemed the legitimate child of the parent who at the time of the marriage was competent to contract. If either or both parties to such subsequent marriage were incompetent to contract, the court by the judgment may decide that a child of the marriage is the legitimate child of such an incompetent.’

The evidence before us indicates that the court might fairly have found that intestate contracted his marriage with plaintiff in good faith and upon this finding it might properly have adjudicated that his child by her was legitimate. Through the ignorance or indifference of counsel, however, the court apparently did not consider this phase of the case; it made no finding upon the subject and its judgment contained no provision legitimatizing the infant, and such was the situation at the time intestate was killed.

The federal Employers' Liability Act, by section 1 (U. S. Comp. St. § 8657), provides that:

‘Every common carrier by railroad while engaging in commerce between any of the several states, * * * shall be liable * * * in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such * * * death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier. * * *’

[2][3] The interpretation of the word ‘child’ or ‘children’ in such a federal statute,as including or not illegitimate children, depends upon the law of the state wherein the statute is being enforced. Seaboard Air Line v. Kenney, 240 U. S. 489, 36 Sup. Ct. 458, 60 L. Ed. 762. It is not claimed by respondent that under the law in this state the word ‘child,’ in a statute or will, without any other description, would include an illegitimate child. It would be useless for her to make any such contention, because the law is the other way. Bell v. Terry & Tench Co., 177 App. Div. 123,163 N. Y. Supp. 733, and cases cited; Decedent Estate Law (Consol. Laws, c. 13) § 89, and section 98, subd. 15.

With the death of intestate and the desire to recover therefor under the federal statute for the benefit of his infant child, realization came to plaintiff and her then counsel of the serious omission which impaired the judgment in the annulment suit through failure to procure findings and decree legitimatizing such child. Plaintiff thereupon procured herself to be appointed administratrix of intestate and also general guardian of the child, and application was made to the Supreme Court in which the annulment suit was pending to open the interlocutory decree and the proceedings in said action, so as to permit the appropriate findings and decretal provisions legitimatizing the child under the section of the Code heretofore referred to. This application was granted. Appropriate...