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HEIBERG v. HASLER

July 1, 1942

HEIBERG et al.
v.
HASLER



The opinion of the court was delivered by: BYERS

BYERS, District Judge.

This is the renewal or continuation of a motion for summary judgment made by defendant, which was discussed in a memorandum of this Court dated March 19, 1941.

On April 5, 1941, an order was made appointing a Special Master to take testimony and report his findings to the Court as to the state of the law of the Republic of France as it existed on July 23, 1937, when the first-named plaintiff was injured in that country.

 It is common ground that the plaintiff is required to demonstrate a cause of action under French law.

 A Report of the Special Master was filed, dated February 9, 1942, which states:

 "* * * as of July 22, 1937 the plaintiff Gigg Heiberg was entitled to avail herself of the provisions of the French Workmen's Compensation Act (Law of 9th of April (1898), as amended). I further find that the liability of the defendant pursuant to the French Workmen's Compensation Act is exclusive and in place of any other liability whatsoever and more specifically that the plaintiffs are not entitled to recover from the defendant according to the common law of the Republic of France existing on July 22nd, 1937."

 In terms, there is no motion now pending to confirm the Report of the Special Master, although this motion could not be granted unless the Court were persuaded to the same extent that it would be if a motion to confirm had been made and granted.

 The first-named plaintiff had been in the employ of the defendant as a housemaid, when the latter was in Florida; some time in the Spring of 1937 the defendant came to New York, bringing the said plaintiff with her; finding it necessary to employ a lady's maid or companion, a new employment was entered into in this state, whereby said plaintiff undertook to perform duties in the latter capacity. Thereafter the defendant took the plaintiff with her to Europe, and on July 23rd the defendant's automobile, which was driven by a chauffeur employed by her, was en route from Dieppe to Deauville, France; the defendant and the said plaintiff were riding in the back seat, and in a memorandum the Master states, in effect, that the said plaintiff was then functioning as the defendant's lady's maid. The car was driven into collision, for which the defendant was held liable in local criminal litigation.

 Under these facts, it would seem that the said plaintiff had apparent cause to institute this cause against her employer.

 The Master has concluded, after taking voluminous testimony and hearing expert witnesses pro and con, that the only right of recovery possessed by the plaintiff is that accorded to her by the French Workmen's Compensation Act, which applies to a domestic servant, not a citizen or resident of France, who was injured in the course of her employment, although the defendant employer was not a citizen or resident of France.

 The said Report and memorandum are to the effect that the said plaintiff has no greater rights than she would have had in the event of her being a citizen or resident of France, in the employ of a defendant of the same status.

 Apparently the rights which an injured person, being a citizen of France, would possess against her employer under the common law of France were superseded by the French Workmen's Compensation Act, the applicable sections of which are quoted and commented upon as follows:

 "Art. 2 (Law of March 22, 1902): 'The workers and employees designated in the preceding article may not avail themselves of any other provisions than those within this Act for ...


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