Opinion
August 1, 1961
Appeal by the employer and its carrier from a decision and award of the Workmen's Compensation Board. The record indicates that decedent, a cab driver, while proceeding along Eighth Avenue in New York City stopped his cab at 56th Street, although the light was green in his favor; then when the light turned red, the cab picked up speed, veered across Eighth Avenue and collided with a parked automobile with enough force to cause damage to two other automobiles parked to the rear. Decedent was alive when a policeman came to his assistance but was dead on arrival at a hospital eight minutes later. That decedent died of a heart attack is undisputed. The basic question is whether the heart attack was precipitated or hastened by the impact or whether the heart attack caused the erratic operation of the car. Decedent had no previous history of heart trouble. Unfortunately the one person who could shed the most light on the events leading up to the accident, decedent's passenger, fled immediately after the accident before he could be questioned. There is also testimony that the passenger had started to open the door of the cab to get out when it was stopped at the green light but had quickly closed the door again when the cab started forward. Without the testimony of this passenger, what actually precipitated the accident is only conjecture. Appellants' medical witnesses, including the medical examiner assigned to Manhattan, claim that the heart attack precipitated the occurrence but their diagnosis is premised on the erroneous assumption that decedent was slumped over the wheel at the time the car veered across Eighth Avenue. Claimant's medical witness also appears to have based his diagnosis on more extensive injuries to decedent from the impact than the record warrants. In Matter of Kurash v. Frankin Stores ( 12 A.D.2d 368, 370), this court set down the standard to be applied in these cases as follows: "But where there seems a reasonable basis for a difference in medical opinion on the cause of death, i.e., whether due to the violence of a fall not demonstrated to be due to internal causes; or whether due to internal causes with a resulting violence, there has been a tendency to sustain the presumption invoked by the board where the medical record would be open to a finding either way." We cannot say as a matter of law in the instant case that the medical opinions advanced by appellants' experts as opposed to those advanced by claimant's expert when examined in the circumstances surrounding the accident are such that the board was bound to hold that there was substantial evidence to destroy the presumption under section 21 Work. Comp. of the Workmen's Compensation Law. Appellants also contend that claimant was not legally married to decedent and therefore not entitled to benefits under the Workmen's Compensation Law. Claimant and decedent were married in New York on July 10, 1934 at which time decedent was prohibited from remarrying unless he had the court's permission. It is not disputed that claimant was unaware of this impediment and that she at all times from 1934 considered herself decedent's wife. Respondent does not, however, assert the validity of the marriage ceremony in New York but contends that since she and decedent lived as husband and wife in Florida from March, 1951 to January, 1952 there was established a common-law marriage which this court should recognize ( Matter of Dellaca v. Hughes Constr. Co., 11 A.D.2d 828). There is no question that during the period decedent and claimant lived in Florida common-law marriages were recognized by that State ( Van Derven v. Van Derven, 105 So.2d 805 [Fla.]). Appellants contend, however, that under Florida law a common-law marriage could not be effectuated unless at the time the marital relationship was contracted in Florida the parties were cognizant that the relationship was being created. Appellants' expert and the cases cited by appellants while upholding the necessity of "per verba de praesenti" did not deal with the instant question of continued cohabitation under an assumed valid but, in fact, invalid, ceremonial marriage. Since the law of Florida is not proven, the courts of the State would be warranted in presuming that the common law of Florida is the same as the common law of New York ( International Text Book Co. v. Connelly, 206 N.Y. 188, 201), even though, by statute New York has abrogated its common law ( Selles v. Smith, 4 N.Y.2d 412, 414). We feel, however, that the case of Jones v. Jones ( 119 Fla. 824) cited by neither appellants nor respondent, is determinative of this question. In Jones the husband entered into an absolutely void bigamous marriage ignorant of the existing impediment. While the Florida Supreme Court granted the husband an annulment on the basis of fraud, it held, in order to uphold the legitimacy of the children of the relationship, that upon the death of the wife's first husband a valid common-law marriage was created solely by continued cohabitation as husband and wife after removal of the impediment. This result is in accordance with the New York law on this question ( Matter of Haffner, 254 N.Y. 238; Matter of Dellaca v. Hughes Constr. Co., 11 A.D.2d 828, supra). Decision and award affirmed, with costs to the Workmen's Compensation Board. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ., concur.