Ziegler v. P. Cassidy's Sons (In re State Workmen's Comp. Comm'n)

• Decision Date: 27 February 1917
• Citation: 115 N.E. 471,220 N.Y. 98
• Parties: ZIEGLER v. P. CASSIDY'S SONS et al. In re STATE WORKMEN'S COMPENSATION COMMISSION.
• Court: New York Court of Appeals Court of Appeals

220 N.Y. 98

115 N.E. 471

ZIEGLER

v. P. CASSIDY'S SONS et al.In re STATE WORKMEN'S COMPENSATION COMMISSION.

Court of Appeals of New York.

Feb. 27, 1917.

Appeal from Supreme Court, Appellate Division, Third Department.

Proceedings for workmen's compensation by Anna Ziegler against P. Cassidy's Sons, employer, and the Employers' Liability Assurance Corporation, Limited. From an order of the Appellate Division (171 App. Div. 959,155 N. Y. Supp. 1151), unanimously affirming an award of the State Industrial Commission, the employer and insurance carrier appeal by permission. Affirmed.

Collin, Hogan, and Cardozo, JJ., dissenting.

Bertrand L. Pettigrew, of New York City, for appellants.

Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for State Industrial Commission.

Frank A. Spencer, of New York City, for respondent Ziegler.

HISCOCK, C. J.

The decedent, John Ziegiler, was killed while in the employment of the defendant employer in a class of work and under circumstances which entitled his widow, if one were left, to compensation under the Workmen's Compensation Law (Consol. Laws, c. 67). The respondent, Anna Ziegler, filed a claim for such compensation, alleging that she was such widow, and the principal controversy on the hearing before the Commission arose over this claim of widowhood. The Commission made what we regard as a finding of fact that the decedent ‘left him surviving his widow, Anna Ziegler, the claimant herein,’ and, inasmuch as the award based upon such finding has been unanimously affirmed, we should be precluded from passing on its correctness if there were nothing more. The record, however, presents other features which require us in the first place to determine a question of practice involved in the hearing before the Commission.

[1] The record discloses that on the first hearing before the Commission this claim was dismissed on the ground that there was no evidence of a valid marriage by claimant to decedent. On the second hearing the commissioners announced that, as the result of further consideration, they had reached the conclusion that a so-called common-law marriage, which had existed, was valid, and their award was expressly based upon the advice of counsel to that effect, and counsel for the defendant then and there gave notice of his intent to appeal from said determination. The query is whether under such circumstances a question of law was raised which survives the unanimous affirmance by the Appellate Division for consideration by this court. We think that we should hold that there was.

The question whether or not a common-law marriage was valid at the time when claimant alleges that she was married to decedent is a very substantial one, and its answer is not entirely free from doubt. The Workmen's Compensation Law (Cons. Laws, c. 67) expressly provides that a hearing before the Commission of such a claim ‘shall not be bound by common-law or statutory rules of evidence or by technical or formal rules of procedure.’ There was no way in which defendant's counsel could compel the Commission in any more formal way than it did to rule upon this question. He was not entitled to require a finding of fact or a conclusion of law which would present it, and a formal exception was not required or contemplated. Everything was done that was necessary plainly to present the question, and apparently every one interestedthought it was being presented, and the commissioners ruled on it. Under these circumstances we think that what was said by them amounted either to a ruling upon the law, or a finding of fact that the marriage between the parties was a common-law marriage, and that the question thus involved was one of law which was sufficiently raised and survives the unanimous affirmance. The statutory provision eliminating the application of technical rules is one which has been and ought to be liberally applied in accordance with the spirit of the provision for the protection of claimants against technicalities, and equal justice requires that it should be so applied as to permit to a defendant consideration of a substantial question like the present one which has been raised as this one was in the only way open to him.

Adopting the view that the question was raised and is presented whether in 1909, when claimant's alleged marriage took place, a so-called common-law marriage was valid, we pass to the consideration of that question for the purpose of determining whether the Commission was in error in holding that it was thus valid. Ever since the Revised Statutes were adopted in 1827 it has been provided by statute that marriage in this state should be regarded as a civil contract. The present statutory provision (Consol. Laws, c. 14, § 10) upon that subject is:

‘Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.’

The statutes upon this subject simply declare what was the prior common law in this state. Fenton v. Reed, 4 Johns, (N. Y.) 52, 4 Am. Dec. 244.

[2] It is undisputed, and therefore the proposition need not be supported by review of statutes or citation of authorities, that prior to 1901 a common-law marriage, that is, a contract of marriage made per verba de presenti and evidenced by cohabitation and various other acts and not effectuated by any formal solemnization, was valid in this state.

In 1901 this law was changed by important statutory enactments. Chapter 339 of the laws of that year amended section 11 of chapter 272 of the Laws of 1896 relating to marriages, by entitling the section ‘How a Marriage must be Solemnized,’ and providing that ‘a marriage must be solemnized by either’ certain persons there enumerated, including clergymen, municipal officials, various judicial officers, or by a written contract of marriage signed by the parties and witnessed as therein provided, and which contract it was provided should be filed within a given time in the office of the clerk of the town or city in which the marriage was solemnized, and certain benefits in the way of registration and otherwise were secured to parties entering into a marriage contract in one of the methods there prescribed.

Because this statute used the mandatory word ‘must’ in prescribing the manner in which a marriage should be solemnized, it is argued that it thereby made it imperative that, with the exceptions specifically made in the statute, marriage should be solemnized in one of the enumerated methods, and in effect prohibited and rendered invalid any other form of marriage contract including common-law marriages. I do not so interpret the statute.

In the first place, I think that the great weight of authority is to the effect that such a statute will be regarded as directory or as prescribing the essential requirements of a formal solemnization of a marriage such as may be necessary to secure the benefits of registry, etc., and will not be regarded as invalidating a form of marriage contract otherwise valid, in the absence of some provision expressly declaring or necessarily implying that result.

It is true that the statutes which were being construed in some of the cases cited below did not employ words which in ordinary usage would be regarded as so mandatory as those employed in the statute which I have quoted, but I think that the rule which on the whole is sustained by the authorities rises above this difference in the language of different statutes, and is applicable to our statute. Darling v. Dent, 82 Ark. 76, 100 S. W. 747;Askew v. Dupree, 30 Ga. 174;Teter v. Teter, 101 Ind. 129, 51 Am. Rep. 742;Pegg v. Pegg, 138 Iowa, 572, 115 N. W. 1027;Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534,72 Am. St. Rep. 350;Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Rep. 164;State v. Worthingham, 23 Minn. 528;Gibson v. Gibson, 24 Neb. 434, 39 N. W. 450;Carmichael v. State, 12 Ohio St. 553;Matter of McCausland's Estate, 213 Pa. 189, 62 Atl. 780,110 Am. St. Rep. 540;Becker v. Becker, 153 Wis. 226, 140 N. W. 1082, L. R. A. 1915E, 56.

It is impossible within reasonable limits to quote at length from these cases, but the rule is fairly stated in the case of Meister v. Moore, 96 U. S. 76, 78, 24 L. Ed. 826, and from the opinion in that case the following language may be quoted:

‘Marriage is everywhere regarded as a civil contract. Statutes in many of the states, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle that, where a statute creates a right and provides a remedy for its enforcement the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the Legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstandingthe statutes, unless they contain express words of nullity. * * * In most cases, the leading purpose is to secure a registration of marriages, and evidence by which marriages may be proved; for example, by certificate of a clergyman or magistrate, or by an exemplification of the registry.’

But in the second place, if any doubt otherwise arose...