On appeal from the Superior Court, Law Division.
For reversal -- Chief Justice Weintraub, and Justices Burling, Jacobs, Francis, Proctor, Hall and Schettino. For affirmance -- None. The opinion of the court was delivered by Weintraub, C.J.
The single question presented is whether illegitimate children are "children" within the meaning of the Federal Employers' Liability Act, 45 U.S.C.A. § 51. Upon motion the complaint was dismissed. We certified the appeal before the Appellate Division acted upon it.
The complaint alleged the deceased John Hammond was survived by his five children, all under the age of 21 years, who "were dependent upon the said John Hammond for support, maintenance, nurture and education, all of which have been lost by his death." The federal statute provides that an employer railroad shall be liable in damages for negligence in the case of the death of an employee "for the benefit of the surviving widow or husband and children of such employee; and, if none * * * then the next of kin dependent upon such employee." Illegitimacy of the infants was conceded.
Defendant urges that who are "children" must be determined by state law. In Seaboard Air Line Railway v. Kenney, 240 U.S. 489, 36 S. Ct. 458, 60 L. Ed. 762 (1916), the court, faced with the question whether "next of kin" in this statute (1) required the uniform application of its common-law meaning or (2) embraced current definitions of the term under the law of the state concerned, accepted the latter proposition. This view was reaffirmed in Poff v. Pennsylvania Railroad Co., 327 U.S. 399, 66 S. Ct. 603, 90 L. Ed. 749 (1946). The holding would seem to apply with equal force to "widow" and "husband," since these terms, like "next of kin," involve a status ascertainable only by reference to some rule of law. And the New York Court of Appeals construed Seaboard to require the same approach to "children." Hiser v. Davis, 234 N.Y. 300, 137 N.E. 596 (Ct. App. 1922).
But plaintiffs argue that "children" may readily be identified on the basis of physical relationship. Hence, there being no need to look to state law, it is urged the word should receive an interpretation which will fully satisfy the congressional
purpose to compensate the dependent for financial loss caused by a defendant's wrong. Reliance is placed upon Middleton v. Luckenbach S.S. Co., Inc., 70 F.2d 326, 328 (2 Cir. 1934), certiorari denied 293 U.S. 577, 55 S. Ct. 89, 79 L. Ed. 674 (1934). There the action was brought under the Death on High Seas Act, 46 U.S.C.A. § 761, which provides for recovery "for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative." The court found Seaboard to be inapplicable. It stressed that whereas in Seaboard "the transaction had a substantial contact with the state" as the place of accident and suit, here "the occurrence must be on the high seas, and the federal law obtains as the law of the place where the wrong occurred." It also emphasized that unlike the Federal Employers' Liability Act the statute before it does not use the expression "next of kin," an expression which depends upon some legislative definition, but rather employs words which the judiciary can itself construe. The court held "children" to mean children in fact, whether or not legitimate under state law, a result it found consonant with the purpose of Congress to compensate for deprivation of support, saying (70 F.2d, at page 329):
"There is no right of inheritance involved here. It is a statute that confers recovery upon dependents, not for the benefit of an estate, but for those who by our standards are legally or morally entitled to support. Humane considerations and the realization that children are such no matter what their origin alone might compel us to the construction that, under present day conditions, our social attitude warrants a construction different from that of the early English view. The purpose and object of the statute is to continue the support of dependents after a casualty. To hold that these children or the parents do not come within the terms of the act would be to defeat the purposes of the act. The benefit conferred beyond being for such beneficiaries is for society's welfare in making provision for the support of those who might otherwise become dependent. The rule that a bastard is nullius filius applies only in cases of inheritance. Even in that situation we have made very considerable advances toward giving illegitimates the right of capacity to inherit by admitting them to possess inheritable blood. 2 Kent's Commentaries (12th Ed.) 215."
Thus in Middleton the court found Seaboard to be inapplicable, not upon the ground that the thesis of Seaboard would not apply to "children" under the Federal Employers' Liability Act, but rather because of differences in language in the statutes and in the identification of the tort law which applies to the cause of action. On the other hand, the observations expressed in the quotation above could be brought to bear with equal force upon a claim under the Federal Employers' Liability Act, for that statute too is not one of inheritance and has the same purpose of affording a remedy to a child for the pecuniary loss it suffered. Gulf, Colorado & Sante Fe Railway Co. v. McGinnis, 228 U.S. 173, 33 S. Ct. 426, 57 L. Ed. 785 (1913).
Civil v. Waterman Steamship Corp., 217 F.2d 94 (2 Cir. 1954), involved an action under both the Death on High Seas Act and the Jones Act, 46 U.S.C. § 688, 46 U.S.C.A. § 688. The right of illegitimate children to recover under the Death on High Seas Act was upheld in Middleton, which Civil cited and followed. The court added however, by dictum, that illegitimate children also qualify as beneficiaries under the Jones Act. The Jones Act provides that in the case of a seaman's death, the personal representative may maintain an action in which "all statutes of the United States conferring or regulating the right of action for death in the case of railway employees shall be applicable." The reference accordingly is to the Federal Employers' Liability Act. On the other hand, in De Sylva v. Ballentine, 351 U.S. 570, 581, 76 S. Ct. 974, 100 L. Ed. 1415 (1956), rehearing denied 352 U.S. 859, 77 S. Ct. 22, 1 L. Ed. 2 d 69 (1956), the majority opinion cited Seaboard in a fashion which may indicate "children" in that statute calls for a reference to state law.
In the light of the foregoing we cannot say with confidence that "children" here was intended by Congress to refer solely to a physical relationship without regard to any impact on the local policies of the several states. For the reason about ...