Johnson v. Pennsylvania Railroad

26 Misc. 241, 55 N.Y.S. 1050

• Court: New York Supreme Court
• Decided: February 15, 1899
• Status: Published

Opinion

Gaynor, J.:

Counsel for the defendant presented the single question whether the deceased had not ceased to be employed by the defendant before his death, and asked the court to direct a verdict for the defendant. It is settled by the special verdict that the deceased died before November 28th when the formal letter of defendant to him notifying him of his discharge was mailed. The question therefore is whether he continued in the employment of the defendant until his death. If this depends on the intention of the deceased as manifested by his acts, it may be that it is a question of fact. But it was treated by the defendant’s counsel as a question for the court. No request was made for its submission to the jury, nor is it now claimed that it was a jury question. The court was and is asked to decide it. The rule of the Relief Department of the defendant read in evidence is that “ The responsibility of the Relief Department to any member shall end when he ceases to be employed by the company”, i. e. the defendant. This rule was part and parcel of the contract of the deceased with the defendant as a member of the said relief fund. Within its meaning I think he was still an employee of the defendant at the time of his death. He was in the permanent service of the company. Absence without leave did not 4pso facto end such service. That was for the defendant to say, and it did not say it until November 28th, which was after his death. The fact that the defendant had taken upon itself to administer this relief fund of its employees should not obscure the question. If the employees had their own relief organization, as is common, and this action were against it, the standpoint from which the said rule is to be viewed might be plainer. It would then be seen that the mere fact of an employee leaving work under the influence of liquor might not as matter of law terminate his permanent service. Such service continues until either employer or employed terminates it. The letter of discharge is that the deceased was discharged for intoxication while on duty “ and continued absence ” without permission. This shows that the defendant did not deem him out of its service at once, but only after a continuance of the absence. Eor that it elected to discharge him. I find that the deceased did not intend to terminate his service, and did not do so; nor did the defendant do so during his lifetime.

I direct judgment for the plaintiff for $275 on the special verdict.

Judgment for plaintiff.