United States Court of Appeals Second Circuit.: No. 183, Docket 27668
United States Court of Appeals Second Circuit.: No. 183, Docket 27668
United States Court of Appeals Second Circuit.: No. 183, Docket 27668
2d 241
Robert G. Farrell, of Stapleton, Flynn & Lilly, New York City (Daniel
Flynn, New York City, of counsel), for defendant-appellant.
Sydney Schmukler, Brooklyn, N.Y., for plaintiff-appellee.
Kenneth Heller, New York City, amicus curiae, on behalf of infant child
Mario Orona.
Before CLARK, KAUFMAN and HAYS, Circuit Judges.
PER CURIAM.
Decedent and his widow were married in December 1952, and established a
Decedent and his widow were married in December 1952, and established a
home in New York. Santiago went to sea shortly thereafter, but visited his wife
every few weeks and contributed to her support for the next two years. The
couple was then separated, and Santiago made no further contributions to his
wife's support. He died on May 11, 1959. Appellant argues that because
decedent did not contribute to the support of his wife during the five years
immediately preceding his death, and because she made no attempt to compel
him to do so, she had no reasonable expectation of support, and accordingly is
barred from recovery.
This argument was rejected by this court in Civil v. Waterman S.S. Corp., 217
F.2d 94 (2d Cir. 1954), a case involving strikingly similar facts. We there said:
'Both the co-libelant, Anne, and the respondent urge that the allocation of any
damages to the lawful widow, Elise, was improper, since Syville had long ago
ceased to support her. The juones Act and the Death on the High Seas Act
explicitly name the widow as beneficiary without reference to her dependency
on the deceased. 45 U.S.C. 59, incorporated by reference in 46 U.S.C. 688; 46
U.S.C. 761. See Poff v. Pennsylvania R.Co., 327 U.S. 399, 400, 66 S.Ct. 603,
90 L.Ed. 749. It is clear that under state law Elise could at any time have forced
Syville to contribute to her support, since they had been neither legally
separated nor divorced. Kyff v. Kyff, 286 N.Y. 71, 35 N.E.2d 655. Hence Elise
suffered a financial loss because of Syville's death for which she was entitled to
substantial damages. New Orleans & N.E.R.Co. v. Harris, 247 U.S. 367, 38
S.Ct. 535, 62 L.Ed. 1167; Lawson v. United States, D.C.S.D.N.Y., 88 F.Supp.
706, 710, modified on other grounds, 2 Cir., 192 F.2d 479, certiorari denied
343 U.S. 904, 72 S.Ct. 635, 96 L.Ed. 1323; Southern Ry. Co. v. Miller, 4 Cir.,
267 F. 376, certiorari denied 254 U.S. 646, 41 S.Ct. 15, 65 L.Ed. 455. These
appear to us to be fairly explicit affirmative rulings not explained away by any
particular facts or circumstances. And there is literally no authority to the
contrary; for these cases cannot be considered as limited by cases of nonwidow
claimants, where admittedly dependency must be shown. And the opposite
result seems unusually harsh; a husband may be killed with impunity Civilly if
he has been faithless.' (217 F.2d at 99. )
See also Diaz v. Lykes Bros. S.S. Co., 229 F.2d 269 (2d Cir. 1956); McGlothan
v. Pennsylvania R.R., 170 F.2d 121, 127-28 (3d Cir. 1948); In re Uravic's
Estate, 142 Misc. 775, 255 N.Y.S. 638 (Surr.Ct. 1932); cf. Clemmons v. United
States, 105 F.Supp. 260, 262-63 (N.D.Fla.1952).
The extent of decedent's past contributions to his spouse does, however, bear on
the issue of damages. McGlothan v. Pennsylvania R.R., supra; cf. Michigan
Central R.R. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417 (1913). The
trial judge quite properly took this factor into account in his computations.
10
Affirmed.
To the extent that the dicta in Tweedy v. Esso Standard Oil Co., 190 F.Supp.
437, 441-42 (S.D.N.Y.1960), aff'd on other grounds, 290 F.2d 921 (2d Cir.),
cert. denied, 368 U.S. 920, 82 S.Ct. 241, 7 L.Ed.2d 135 (1961) suggest a
contrary result the language therein is disapproved