GR 10765; (December, 1916)

EN BANC

G.R. No. 10765 December 22, 1916

PACIENTE TAMAYO, father of the minor, Brualio Tamayo, plaintiff-appellee,

vs.
CARLOS GSELL, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant.
Modesto Joaquin for appellee.

TRENT, J.:

This is an action for damages against the defendant Gsell for personal injuries suffered by Braulio Tamayo, minor son of the plaintiff. From a judgment in favor of the plaintiff in his capacity as guardian ad litem of Braulio Tamayo for the sum of P400, without costs, except P25 fees for the attorney of the Bureau of Labor, the defendant appealed and now urges that the trial court erred:

1. In permitting the attorney of the Bureau of Labor to conduct the case and awarding him P25 fees.

2. In finding that Garlos Gsell is the owner of the factory wherein Braulio was injured.

3. In finding that the accident occurred because Braulio Tamayo was assigned to work to which he was not accustomed and did not understand, without any previous warning as to the dangers thereof or instructions as to the manner of doing the work, in order to avoid being injured.

4. In finding that the negligence of the defendant or the persons for whom he is responsible was the cause of the accident.

5. In declining to sustain the defendant’s defenses of contributory negligence and assumption of risks.

6. In awarding damages against the defendant in the absence of a showing that the injuries in any way diminished Braulio Tamayo’ earning capacity.

Act No. 1868, approved June 18, 1908, creating the Bureau of Labor, provides in section 2 that the purpose of the Bureau shall be to see to the proper enforcement of all existing laws and those which shall be enacted hereafter with reference to labor and capital in the Philippine Islands and to promote the enactment of all other legislation which shall tend to establish the material, social, intellectual, and moral improvement of workers; to acquire, collect, compile, systematize, and submit from time to time reports to the Secretary of Commerce and Police, statistical data relating to the hours and wages of labor, the number of workers in each trade or occupation, etc., and to inspect all shops, factories, industrial and commercial establishments and “to take the proper legal steps to prevent the exposure of the health or lives of laborers and to aid and assist by all proper legal means laborers and workers in securing just compensation for their labor, and the indemnity prescribed by law for injuries resulting from accidents when engaged in the performance of their duties.” Sections 2 and 3 of Act No. 1868 were amended by Act No. 2258, but such amendments do not affect the issues involved in the instant case. Act No. 2385 amends subsection (d) of section 2 and section 3 of Act No. 1868 and adds several paragraphs to the end of section 4 of that Act and repeals Act No. 2258. Subsection (d) of section 2, as thus amended, reads:

To secure the settlement of difference between employer and laborer and between master and servant and to avert strikes and lockouts, acting as arbitrator between the parties interested, summoning them to appear before it, and advising and bringing about, after hearing their respective allegations and evidence, such arrangement as these may, in his judgment, show to be just and fair.

The pertinent provision added to section 4 and provide that the Bureau of Labor shall also have an attorney who shall be paid a fixed salary per annum.

Said attorney shall assist the Director or Assistant Director of Labor in all legal questions by them submitted to him, and shall bring suit gratuitously, in the proper courts, for laborers or servants when he shall deem this proper after the failure of the endeavors to bring about a friendly settlement made by the Director or Assistant Director of Labor in the performance of the duties imposed had the exercise of the powers conferred upon them by subsection (d). . . . Provided, however, That the attorney of the Bureau of Labor shall not bring suit under this Act unless the plaintiff shall have previously secured a certificate of indigency from the proper court.

The sentences of the courts trying cases under this Act shall provide, in case of judgment in favor of the plaintiff, for the payment by the defendant of the sum of twenty-five pesos as costs of the attorney of the Bureau of Labor, which sum shall be collected in the same manner as other costs and turned into the Insular Treasury and credited to the general funds.

It is argued that in conferring the power and duty upon the Director of the Bureau of Labor “to secure the settlement of difference between employer and laborer and between master and servant and to avert strikes and lockouts” the legislature never intended to bring negligence cases resulting in personal injuries under the jurisdiction of the Director. If the attorney of the Bureau of Labor is authorized to represent the plaintiff in actions such as the one under consideration he could, it is said, appear on behalf of a laborer charged by his employer with larceny of materials or on behalf of an employee under prosecution for assaulting his master. We think this result does not necessarily follow. The Director is given the power and it is made his duty to aid and assist by all legal means laborers and workers in securing the indemnity prescribed by law for injuries resulting from accidents. If this cannot be done by “a friendly settlement,” then the attorney “shall bring suit gratuitously” for the employee if such employee is too por to employ private counsel. No additional right of action is given laborers and workers by this legislation.

It was only the intention of the Legislature, as expressed in the acts, to provide the services of an attorney for pauper employees in certain cased and to tax a portion of the costs of such services against the defendant if the suit be successful. This, it is true, is advanced legislation when compared with similar Acts in the United States. In Missouri the Bureau of Labor is in most cases chiefly an instrument for gathering statistics. The arbitration of disputes between employers and employees is given to a board distinct form the Bureau of Labor (Ann. Sta., 1906). Minnesota (Statutes of 1894) provides for a Bureau of Labor to gather statistics and inspect factories, with the power to enforce the laws pertaining to the welfare of the workingmen, but gives it no power to prosecute civil actions for individuals. In Nebraska the Bureau of Labor is a statistic gatherer, a factory inspector, and protector of the laborer to the extent that the commissioner may file a complaint for a violation of the Act creating the Bureau and defining its powers, which the county attorney must prosecute. (Statutes of Nebraska, 1911.) Other States have similar statues. Some State provide for public defenders in criminal cases. In this jurisdiction provisions are made for the defense of pauper criminals and section 35 of the Code of Civil Procedure authorizes the Supreme Court and the Courts of First Instance to assign any lawyer to render professional aid to a p[arty in any pending action, free of charge, if such court, upon full investigation, shall find that the party is destitute and unable to employ a lawyer. The statute under consideration requires a certificate of indigency from the court before an attorney of the Bureau of Labor can institute the action. The only essential difference between the two systems is a small amount for the services of the attorney of the Bureau of Labor, which is taxed against defendants when the plaintiffs are successful, but it cannot be done except in cases where “a friendly settlement” has failed. Considering the scope and purposes of the Acts, in connection with the fact that the plaintiffs are paupers, we see no reason for holding that the provisions attacked are in violation of public policy or transcends the power of the Legislature. Therefore, the first assignment of error is without merit.

The second assignment of error has no merit. The plaintiff testified positively that the defendant is the owner of the factory and when another witness was asked who the owner was, counsel for the defendant stated,” We do not dispute the ownership.” No other testimony was offered on this point and all proceeded thereafter upon the theory that there was no question about the fact that the defendant is the owner of the match factory, yet counsel, in their printed brief, say that “there is not one syllable of evidence in the testimony or anywhere else in the record as to the ownership of this factory.”

The other assignments of error raise both questions of fact and law. The trial court’s findings of fact are these:

The facts proven in the case are as follows:

1. That the boy Braulio Tamayo, whose age neither he nor his father, Paciente Tamayo, knows, nor does it appear of record, but which, in the opinion of the court, is about eleven or twelve years, was one of the workmen employed in the match factory, situated in Santa Ana, Manila, and owned by the defendant, Carlos Gsell. On the 13th of March, 1914, the boy met with an accident which consisted of an injury caused by the knife of one of the machines of the factory which cut the little ring fingers on the right hand, the latter of which was severed.

2. That the accident arose by reason of his being assigned by Eugenio Murcia, one of the foremen employed in the factory, to perform work to which he was not accustomed. He was put at the machine of Arcadio Reyes only the day of the accident, in spite of his persistent and manifest opposition to assist the machinist; his work was to recover strips, used in the manufacture of match boxes, from the machine, Exhibit 1, which were extracted from the said machine from the wood placed therein. At the same time he had to clean out the pieces of wood form said strips, which stuck in the machine and obstructed its proper working. Prior to the date in question the only work entrusted to the boy, Braulio Tamayo, was to pick over the piles of wood from which the strips used in the manufacture of match boxes were made and select the best pieces for the purpose.

3. Due to his inexperience in the work to which, for the first item and without any preparation or instruction, he had been assigned in essaying to clean that part of the machine where the pieces of wood from the strips were stuck, he was caught by the knife of the machine and the right finger of his right hand was served. He was thereupon taken to the General Hospital, where he received medical treatment until he was released.

4. The plaintiff complied with the provision contained in section 4 of Act No. 1874, advising the employer, who is the defendant herein, of the accident which had occurred to his son.

In view of the facts as they were shown in the record, in spite of the conflicting testimony of the witnesses of both sides, the court is obliged to give credit to the testimony of the witnesses for the plaintiff, and since it was not contradicted by Eugenio Murcia, to whom is attributed the determination to assign Braulio Tamayo, on the date and hour in question, to another machine and to give him, inspite of his tender years, work of a class to which he was not accustomed, the responsibility contracted by the employer to indemnify the injured workman, represented by his father, for the damage and injury which he has suffered, according to the Act cited, is very clear.

Eugenio Murcia was one of the foremen employed in the factory; he knew the kind of work which was assigned to each of the employees in relation to their respective ages and he must have known that it is not the same thing to select wood lying on the ground, work in which Braulio Tamayo had been employed ever since he entered the employ of the factory, as to receive the strips delivered from the machine, Exhibit 1, and to clean the said machine, even while it was running, of those parts of the strips which might interfere with its working, and he should not have suddenly ordered Braulio Tamayo, taking into account his youth, to temporarily take the place of a workman who ordinarily performed the work we have spoken of on Arcadio Reyes’ machine, especially without first preparing him and giving him the necessary instruction in order to avoid an accident such as that which occurred and one to which a boy of the age of Braulio Tamayo would be exposed.

After a careful examination of the record we are convinced that the foregoing findings of fact are supported by a fair preponderance of the evidence. This being true and the findings being the result found by the trial court from conflicting testimony, we certainly are not justified in reversing the judgment upon this branch of the case. In United States vs. Benitez and Lipia (18 Phil. Rep., 513, 517), Justice Moreland, speaking for the court said:

In a conflict of testimony such as is presented in this case, this court must reopened to a considerable extent upon the discernment of the judge who sits at the trial. A careful and discriminating trial judge has unequaled advantages in determining the relative credibility of opposing witnesses. If he exercises his facilities with shrewdness and sagacity, he performs a most valuable work for the appellate court. We have considered this case in a very painstaking manner. We have searched the record for any evidence indicating that the learned trial court was mistaken in his judgment as to the relative credibility of the witnesses or that he had overlooked some fact or circumstances of weight or influence in passing upon the evidence, or that he had misinterpreted the significance of the facts as proved. We have been unable to find from the record that the learned trial court has fallen into such error; and, in accordance with the rule which we have so often laid down, namely, that this court will not interfere with the judgment of the trial court in passing upon the relative credibility of opposing witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or its significance misinterpreted by him, we decline to interfere with the judgment of the trial court upon the facts in this case.

The foregoing well considered rule is perfectly applicable to the case under consideration.lawphi1.net

Dr. Vasquez of the General Hospital, who attended Braulio Tamayo at the time he was injured, testified in reference to the nature and character of the injuries as follows:

Q. Do you know in what condition the child’s finger was? — A. The finger was mashed.

Q. Are you sure that it was mashed? — A. Mashed and severed.

During the trial of the case counsel for the defendant made this statement:

I wish to appear of record that the right hand of the child shows that the severed finger was cut at the first joint. It also bears a diagonal scar inside (interior?) and near the tip of the next finger, the little finger.

With reference to whether there was a dimunition in the earning capacity of Braulio Tamayo due to the injuries received and as to the payment of expenses and salary while he was being treated for the injuries, Geiser, superintendent of the defendant’s factory, testified that the defendant paid the hospital bill and Braulio’s regular salary of fifty cents a day during the time he was absent; that after Braulio left the hospital he (the witness) tried to get him to return to work at the same salary, but he refused to do so; and that Braulio could occupy any place in the factory which his age would permit, as his hand had been cured. While this witness did not definitely state that Braulio’s injuries did not diminish his earning capacity for the work he was doing in the factory, yet it may be inferred, and we so decide, that the boy can perform his former works in the factory just as well as now as he could before the accident, or in other words, the injuries caused no dimunition of his ability to perform such work. As to the character of the injuries, we have the finding of the trial court to the effect that the little and ring fingers on the right hand were cut, the latter of which was severed, and the statement of counsel that the ring finger was cut off at the first joint and the little finger showed a diagonal scar on the inside of the end.

The result is that we have a case where a foreman of a match factory, owned and operated by the defendant, put a young ignorant employee to work at dangerous machinery without any previous preparation or instruction. The boy was only 11 or 12 years old and so ignorant that he did not know before the accident, which resulted in the severing of his ring finger on his right hand at the first joint, doing only the very simplest work, in the performance of which he had nothing to do with the machinery. He was ordered against his persistent and manifest opposition to assist in cleaning out the pieces of wood “which stuck in the machinery and obstructed its proper working,” without any previous warning of the dangers incident to such work or previous instruction as to how he should do the work in order to avoid accidents. He was entirely unfamiliar with that kind of work, which required at least some knowledge of the working of the machine. The machine was not defective and the danger resulting from putting one’s finger under the knife was obvious. To this extent the established facts are against the contentions of the defendant.

The questions of law require an investigation touching the scope and purposes of Act No. 1874, known as the Employer’s Liability Act. We will first inquire into the origin and history of this Act.

By a joint resolution of the two Houses, dated February 1, 1908, there were appointed on April 30, 1908, a committee of twenty-one for the purpose of “preparing and submitting to the president of the Commission and the Speaker of the Assembly its recommendations on the Labor Accident Bill presented by the Representative for the Second District of Manila, Honorable Fernando Ma. Guerrero, and to study, prepare, and submit also any other recommendations deemed pertinent in the premises.” (Vol. 2, p. 289 of the Commission Journal of 1908.)

Before this committee met for the purpose, as indicated two other bills were drafted, one by another member of the Assembly and the other by the Secretary of Commerce and Police, who was then a member of the Legislature. During the sessions of the committee the three bills were discussed and by a majority vote a fourth bill was prepared and its passage recommended. The Assembly then passed a bill substantially the same as that recommended by the committee. The committee of the Commission, to whom the Assembly bill was referred, recommended in its report of June 13, 1908, various amendments. These amendments were adopted by the Commission and the bill, as thus amended, was passed by that body. The bill in its amended form was returned to the Assembly and passed by it, and became law (Act No. 1874) on June 19, 1908. The chairman of the joint committee, in his report to the President of the Commission and the speaker of the Assembly, in referring to the bill prepared by the Secretary of Commerce and Police, said:

One of these (bills) was prepared in the Department of Commerce and Police for submission to the committee, which was drawn substantially along the lines which have prevailed in the State of Massachusetts some years and upon which interpretations have been made by the Masachusetts courts defining the exact meaning of the provisions of the law. (Vol. 2, p. 298, Commission Journal of 1908.)

A comparison of Act No. 1874 with that of the State of Massachusetts of 1902 shows that the former is essentially a copy of the latter. The first section of each is exactly the same and, in so far as the question under consideration are concerned, there are no differences in the other sections of the two acts.

It appears from the official proceedings of the joint committee that the Guerrero bill, which was rejected by the committee and the Legislature, was based on the Spanish law. This is shown from the following extract from these proceedings:

The clause contained in the Guerrero bill was based on a similar clause found in the Spanish law, which was put in the same order to make provision for the damage and detriment caused by work in the mercury mines, and as the Guerrero bill was based on the Spanish law this clause was put in. . . . For this reason I move that the amendment proposed by Mr. Javier be rejected but the section as it is drawn up be adopted.

Act No. 1874 does not attempt to define generally the rights of master and servants, and is not a codification of the law. Reference must be made to some other law to define who are masters, who are servants, what is the scope of the employment, and whether the injury was the approximate result of the negligence; and negligence itself must be determined by that other law and not by the Act. The Act does not impose any obligation on the master to employ competent servants nor to instruct or warn his servants about their work or the dangers of it. These obligations, if they exist, must be found elsewhere. Neither does the Act define the word “damages” by setting forth the element thereof, nor does it fix any general rules for determining the measure of damages in personal injury case brought under it. It does provide, however, that in those case where damages are awarded for the death of an employee the same shall be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable. The Act also fixes the minimum and maximum amounts which may be awarded if deaths results from the injuries, and the maximum amount of damages for personal injuries not resulting in the death of the employee. In determining the important question here involved for the purpose of ascertaining the intention of the Legislature, must we look to the Civil Code and the decision of this court in construing its provisions for our guidance or was the statute adopted with the construction given to it by the court in the country from which it was copied?

The Massachusetts statute was “copied verbatim, with some variations of detail, from the English statute (43 and 44 Vict. ch. 42). Therefore, it is proper, if not necessary, to begin by considering how the English act had been constructed before our statute was enacted.” (Ryalls vs. Mechanics’ Mills, 150 Mass., 190; 5 L. R. A., 667.)

The Employers’ Liability Act of Alabama, first enacted in 1855 (Civil Code 1907, Ch. 80, sec. 3910), is a substantial, if not an exact copy, of the English Act of 1880.

This court is not finally concluded by the decision of any other State court or the British court, in their construction of a similar statute, but the opinion of learned courts upon similar questions are entitled to great weight, and this is specially true when the statute, from which ours was copied had been construed prior to its enactment by our legislature. (Brimingham Ry & Electric Co. vs. Allen, 99 Ala., 359, 371; 20 L. R. A., 457.)

The Employers’ Liability Act of Colorado (Laws 1893, chap. 77; Mill’s Annotated Statutes, Supp. 1891-1896, sec. 1511a) was copied from the Massachusetts Act of 1887 and the Colorado Legislature “presumably adopted the Act with the construction that had been given it by the courts of that state.” (Colorado Milling & Elevator Co. vs. Mitchell [1899], 26 Colo., 284.)

Generally speaking, when a statute has been adopted from another State or country and such statute has previously been construed by the courts of such State or country, the statute is deemed to have been adopted with the construction so given it. (Cerezo vs. Atlantic, Gulf & Pacific Co., 33 Phil. Rep., 425, citing 2 Lewis Sutherland on Stat. Const., sec. 783.)

The law being so clearly traced to its source and the intention of the Legislature being so apparent, it is necessary to ascertain and be guided by the decisions of the courts in the United States construing essentially the same law. Further reference will be made to the same question in considering the sixth assignment of error.

Dresser on Employers’ Liability (vol. 1, sec. 2), says:

It is apparent that the act has not attempted to define generally the rights and duties of master and servants, and is not a codification of the law. . . . Constant reference must be made to the common law to define who are master and who servants, what is the scope of the employment, and whether the injury was the proximate result of the negligence; and negligence itself is determined by the common law, and not by the act. The act, moreover, is silent concerning certain terms of the contract of service. It does not impose any obligations on the master to employ competent servants, nor to instruct or warn his servants about their work or the dangers of it. These obligations were too well settled and important to be taken away by implication merely, and the courts have held that the act was remedial, and a concurrent, instead of an exclusive remedy. (Citing cases from Massachusetts, Alabama, Colorado, and England.)

The courts in the United States, in order to ascertain what changes have been made by the Employers’ Liability Acts in the “fellow servant rule,” held that at common law the master impliedly agreed to provide competent workmen, and in so doing he was bound to exercise that measure of care which reasonably prudent men do so under similar circumstances, that the master is not an insurer, and that it was only necessary that the danger in the work be not enhanced through his fault. The servant on his part, by entering the employment, was held to impliedly agree to take upon himself the perils arising from the carelessness and recklessness of those were in the same employment, without regard to their grade, rank or authority in the service, provided that the act causing the injury was not in the performance of any personal duty of the master intrusted to the negligent servant. The whole doctrine in brief was a denial as to the employee of the principle of respondent superior. Under the latter, a stranger invited upon the master’s premises could recover for the injuries received through the negligence of the employees. It was this right which was denied to the employees. The effect of section 1 of the Employers’ Liability Act, the same courts held, is to exempt from the class of fellow servants, the result of whose negligence the servant was held to have assumed, such persons as are intrusted by the master with duties of superintendence while in the exercise of them. The persons must be superintendents within the meaning of the Act and the negligent acts must have been done in the exercise of the controlling functions of superintendent. Applying these principles to the instant case, there can be no doubt that Eugenio Murcia, one of the foremen employed in the defendant’s factory, was exercising the controlling functions of superintendent when he ordered Braulio Tamayo to assist in keeping the machine clean. Consequently, if such act constitutes negligence, the defendant is liable in damages for the injures caused thereby, if it were, under the circumstances, the duty of the defendant or the foreman to warn Braulio Tamayo as to the dangers incident to such work and instruct him how the work should be done in order to avoid accidents.

As to whether it was the duty of the defendant or the superintendent to thus warn and instruct Braulio Tamayo, it is urged that no such duty was imposed on either of them because, as the danger of putting one’s fingers under the knife was obvious, Braulio assumed all the risks of the work which he was ordered to do. It is further urged that the defendant is not liable because Braulio Tamayo was not in the exercise of due care at the time he received the injuries. In other words, the defendant here interposes the common law defense of assumption of risks and contributory negligence. Some confusion has arisen with reference to these two defenses. The Supreme Court of the United States explained the distinction between the two in the following language in the recent case of Seaboard Air Line Railway vs. Horton (233 U. S., 492, 503):

The distinction, although simple, is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employees, and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employees. The risks may be present, notwithstanding the exercise of all reasonable care on is part. Some employments — danger that must be and is confronted in the line of his duty. such danger as are normally and necessarily incident to the occupation are presumably taken into account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise put of the failure to providing a safe place of work and a suitable and safe appliances for the work. These the employee is not treated as assuming until he becomes aware of the defect and risk alike are so obvious that an ordinarily prudent person under the circumstance would have observed and appreciated them. These distinctions have been recognized and applied in numerous decisions of this court. (Choctaw, Oklahoma & Gulf R. Co. vs. McDade, 191 U. S., 64, 68; Schlemmer vs. Buffalo, Rochester & Pittsburg Ry. Co., 220 U. S., 590, 596; Tex & Pac. Ry. Co. vs. Harvey, 228 U. S., 319, 321; Gila Valley Ry. Co. vs. Hall, 232 U. S., 94, 102, and cases cited.)

In Southern Ry. Co. vs. Crockett (234 U. S., 725), the Supreme Court of the United States, in passing upon the question as to what effect the Federal Employers’ Liability Act of April 22, 1908, has had upon the common law defense of assumption of risks, said:

Upon the merits we of course sustain the contention that by the employers’ Liability Act the defense of assumption of risk remains as at common law, saving in the cases mentioned in section 4, that is to say: “Any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”

In England it was said in the case of Thomas vs. Quartermaine (18 Q. B. D., 685) that the act had not variated the effect of the maxim volenti non fit injuria, so far as it involves the ordinary risks inherent in the particular employment. To the same effect is O’Malley vs. South Boston Gas Light Co. (158 Mass., 135); Birmingham Ry. & Electric Co. vs. Allen (99 Ala., 359); Whitcomb vs. Standard Oil Co. (153 Ins., 513.) There has been, however, a noticeable difference in the application of the doctrine in favor of the workman since the enactment of the Employers’ Liability Act, but this change does not affect the issues involved in the instant case. So it is quite clear that the Legislature in enacting Act No. 1874 intended to establish in this jurisdiction, if it did not already exist, the defense of assumption of risks; that is, the servant assumes such dangers as are normally and necessarily incident to the occupation.

At common law the defense of contributory negligence is always available in actions for compensation for negligence and if proved, defeats the action. The Act has not deprived the employer of this defense. (Halsbury’s Laws of England, vol. 20, p. 138.) In Massachusetts it was said that assuming the negligence of the superintendent, the servant could not recover if he were guilty of contributory negligence. (Regan vs. Lombard, 192 Mass., 319.) This doctrine, however, has been more recently partially abrogated by statutes. Under the Federal Employers’ Liability Act of April 22, 1908 (35 Stat. 65; U. S. Comp. Stat., Supp., 1911, p. 1322), the defense of contributory negligence “is abrogated in all instances where the employer’s violation of a statute enacted for the safety of his employees contributes to the injury.” And in several states the doctrine of comparative negligence, as to some industries, has been established by statute. (Cerezo vs. Atlantic, Gulf & Pacific Co., supra, and cases cited.) But such is not the case in this jurisdiction in so far as the application of Act No. 1874 is concerned.

That the defense of contributory negligence, as it is understood in the United States, is recognized in the Act (Act No. 1874) with all its force and effect, is clear because the first section requires as an essential requisite that the employee be “in the exercise of due care” at the time of the injury in order to hold the employer liable for damages. (Cerezo vs. Atlantic, Gulf & Pacific Co., supra.)

The Civil Code does not recognized such a complete defense. (Rakes vs. Atlantic, Gulf & Pacific Co., 7 Phil. Rep., 359, 366; Eades vs. Atlantic, Gulf & Pacific Co., 19 Phil. Rep., 561.)

While the defenses of assumption of risks and contributory negligence are available to masters in actions for personal injuries brought under Act No. 1874, these defenses have their limitations when interposed in actions for personal injuries of minor or infant employees. These limitations rest upon the well-established principle that it is the duty of masters or their superintendents to warn such employees as to the dangers of the work and instruct them as to the manner of doing the work in order to avoid accidents.

The master is bound to warn and instruct his servant as to all dangers which he knows, or in the exercise of reasonable care ought to know, and which he has reason to believe the servant does not know and would not by the exercise of reasonable care discover.

The duty continues during the employment, and cannot be delegated by the master. (Dresser on Employers’ Liability, sec. 99.)

In cases where the servant assumes the risks, there is no duty on the part of the master to warn or instruct him in regard to the work. The obligation of warning “is imposed mainly for the sake of the young who have not the experience or power to look out for themselves, which are to be expected in adults, o, in the case of adults, where there are concealed defects.” (Robinska vs. Lyman Mills, 174 Mass., 432, 433; O’Neal vs. Chicago & I. C. Ry. Co., 132 Ind., 110.)

And “it is clear that, in respect to all matters wherein a young and inexperienced employee is competent to understand and avoid the dangers, such employee stands upon the same footing with an experienced adult.” (Levey vs. Bigelow, 6 Ind. App., 677.)

The distinction between the adult and the child becomes important when it is necessary to presume knowledge from the character of the danger, and determine whether it was obvious to a person of the plaintiff’s apparent capacity. (Dresser on Employers’ Liability, sec. 99.)

The dangers of a particular position or mode of doing work are often apparent to a person of capacity of knowledge of the subject, while other, from youth, inexperience, or want of capacity, may fail to appreciates them; and a servant, even with his own consent, is not to be exposed to such dangers, unless with instructions and cautions sufficient to enable him to comprehend them and to do his work safely, with proper care on his part. This is particularly so when the master employs for a hazardous work, a child, young person, or other person without experience, and of immature judgment. In such a case, the master is bound to point out the dangers of which he has, or ought to have, knowledge, and give to the employee such instructions as will enable him to avoid injury by the exercise of reasonable care, unless both the danger and the means of avoiding it are apparent, and within the comprehension of the servant. But a master is not culpable simply because he hires a minor servant for the performance of dangerous duties. Shearman and Redfield on Negligence (vol. 1, sec. 218) state the rule as follows:

Where a servant is set at dangerous work, the mere fact of his minority does not render the master liable for the risk, if the servant has sufficient capacity to take care of himself, and knows and can properly appreciate the risk.

The following statement of the law relating to the employment of young children occurs in 4 Thompson on Negligence, sec. 3826, and is quoted with approval in Fitzgerald vs. Furniture Co. (131 N. C. 636):

The law, says Thompson on Neg., 978 “puts upon a master, when he takes an infant into his service, the duty of explaining to him fully the hazards and dangers connected with the business, and of instructing him how to avoid them. Nor is this all; the master will not have discharged his duty in the regard unless the instructions and precautions given are so graduated to the youth, ignorance and inexperience of the servant as to make him fully aware of the danger to him, and to place him, with reference to it, in substantially the same state as if he were an adult.”

In Taylor vs. Wootan (50 Am. St. Rep., 200) it was held that:

It is an actionable wrong for a person to place or employ a child of such immature judgment as to be unable to comprehend the danger to work with or about a machine of a dangerous character likely to produce injury, . . .

With reference to the nature and character of the risks assumed by infant employees, the court, in Saller vs. Friedman Brothers Shoe Co. (130 Mo. App., 712) said:

Generally, an employee assumes such risks as are open and obvious or which he would have observed he had used ordinary caution; but children are not expected to observe closely the construction of machines at which they are put to work or to appreciate the ordinary risks incident to their operation, and for this reason are not held to assume the ordinary risks of their operation, or such risks as they do not perceive and apprehend, and of which they are not informed and warned against. (Vansler vs. Boc Co., 108 Mo. App., l. c. 628-9, 84 S. W., 201, and cases cited.)

The law with reference to contributory negligence on the part of infant employees is fairly well settled in the United States.

In Wynne vs. Conklin (86 Ga., 40) the court held that whether the plaintiff [a boy of 13 years of age] knew of the hazard or peril; whether he was of sufficient age and capacity to appreciate the same and to provide against danger, are questions of fact which “. . . must be left to the consideration of a jury.”

In Bare vs. Crane Creek Coal Co. (61 W. Va., 28) the court said:

It is actionable negligence for an employer to engage and place at a dangerous employment a minor who, although instructed, lacks sufficient age and capacity to comprehend and avoid the dangers of the employment if the employer has, or should have, notice of the minor’s age and lack of capacity. (Thomp. on Neg. sec. 4689; 20 Am. & Eng. Enc. Law, supra; Golf vs. Norfolk & W. R. Co. supra; 1 Shear. & Redf. Neg., supra.)

In Saller vs. Friedman Brothers Shoe Co., supra, the court said:

Plaintiff, on cross-examination, testified he knew if his fingers were caught between the upper and lower halves of the molder when they came together, they would be crushed. Of course he knew this; the simplest child would know as much if it observed the operation of the machine, but it might not, and probably would not make the observation. Plaintiff’s evidence tends to prove that though he knew his fingers would be mashed if caught between the two halves of the molder when they came together, yet he swore he never thought of getting hurt. His evidence shows that the idea that he might be hurt never entered his mind until he was hurt; while his evidence shows he knew he might be hurt in the manner he was hurt, yet he never thought of or appreciated the danger of getting hurt in that manner. It is because of this very thoughtlessness and on account of the inexperience of minors that the law does not hold them to the exercise of the same degree of care as it requires of adults.

In the Brand Case (64 Fla., 184) cited in the recent case of Coons vs. Pritchard (L. R. A., 1915 F, 558) the court held:

As a matter of fact an employees who is an inexperienced youth may not be free from fault when he is injured, yet in law his youth and inexperience may excuse his fault, and when the employer has placed him at work the dangers and risks of which the youth does not appreciate, and the youth is injured because of the dangers of the work, the employer is liable.

The court in Coons vs. Prichard, supra, lays down this rule:

In employing a minor, the duty devolves upon the employer to fully instruct such employee, and in such cases the master is bound to consider the age, mentality, and lack of capacity and experience of his infant employee, and make such instructions so full and explicit as to bring the dangers incident to the employment to the complete comprehension of the minor. The theory seems to be that a minor presumably ignorant of the use of machinery or dangers incident to his occupation, or to risks incident to the use of defective machinery, would, without such instructions, be exposed to those dangers which he could have avoided had his master fully discharged this duty.

The infant employee’s capacity is the criterion of his responsibility. As he grows older, he becomes more and more amenable to the rules of law in respect to assumption of risk and contributory negligence applicable to adults, and whether such infant employee has assumed the risks or been negligent are questions to be answered by the jury in the United States and by the courts in this jurisdiction.

There is another point ion the case at bar which should be taken into consideration and which bears upon the defendant’s defenses of assumption of risks and contributory negligence, and that is, the injuries did not occur while Braulio Tamayo was engaged in the particular work and class of work for which he was employed. On the contrary, he was at the time engaged in a work outside the ordinary contract of employment and wholly disconnected with it. “To pick from piles of wood from which the strips used in the manufacture of match boxes were made and select the best pieces” is a very different thing from assisting in keeping the machine clean in order that it would not be obstructed in its proper working. While the record is silent as to who made the contract of employment, yet, taking into consideration the age of the boy and the interest which the father was taking in his welfare, we may at least presume that the father consented to the boy’s entering the factory and doing the ordinary work which he had been engaged in before he was ordered to work at the machine, and the father, in so doing, had the right to presume that neither the defendant nor those who represented him would expose his son to such perils. If the order had been given to a person of mature years, who was not engaged to do such work, although enjoined to obey the directions of the foremen, it might, with some possibility, be argued that he should have disobeyed it, as he must have known that its execution was attendant with danger, or, if he chose to obey that order, he took upon himself the risks incident to such work. Bur Braulio Tamayo occupied a very different position. He was a mere child without, as we have said, any experience in that kind of work, and not familiar with the machinery.

In Union Pacific Railroad Co. vs. Fort (84 U. S., 553), Fort brought suit to recover damages for injury to his son, age 16 years, resulting in the loss of an arm while in the employment of the railroad company. The boy was employed in the machine shop as a workman or a helper under the superintendence and control of one Collett and had been chiefly engaged in receiving and putting away mouldings as they came from a molding machine. After the service had been continued for a few months, the boy, by order of Collett, ascended a ladder, resting on a shaft, for the purpose of adjusting a belt by which a portion of the machinery was propelled and which had gotten out of place. While engaged in an endeavor to execute the order, his arm was caught in the rapidly revolving machinery and torn from his body. The injury found that he had been engaged to serve under Collett as a workman or helper and was required to obey his orders; that the order by Collett to the boy (in carrying out which he lost his arm) was not within the scope of his duty and employment, but was within that of Collett’s; that the order was not a reasonable one; that its execution was attended with hazard to life and limb; and that a prudent man would not have ordered the boy to execute it. A verdict and judgement in favor of Fort was sustained.

Applying the foregoing principles, which are founded upon reason and justice, to the case under consideration, we conclude that the trial court did not err in rejecting the defenses of assumption of risks and contributory negligence interpose by the defendant.

We now come to the consideration of damages. As above stated, the record fails to disclose to what extent, if any, the earning capacity of Braulio Tamayo has been diminished by reason of the injuries. He could not, therefore, recover any amount if this action had been brought under the Civil Code, as the services for medical attendance and salary during the confinement have been paid by the defendant. (Marcelo vs. Velasco, 11 Phil. Rep., 287; Algarra vs. Sandejas, 27 Phil. Rep., 284). But this court has never held that slight lameness or permanent injuries and pain and suffering are not elements of damages, but simply that damages cannot be allowed for the former, unless the extent of the diminution of the earning power or capacity is how, and that the Civil Code does not include damages for the latter.

The English rule as to the measure of damages which may be awarded for personal injuries is stated in Halsbury’s Laws of England (vol. 10, p. 323), as follows:

In actions for personal injuries, whether such actions are founded on breach of contract to carry safely, or upon negligence, the jury are to award damages not only for the actual pecuniary loss occasioned by the injury, but also for the pain and suffering of the plaintiff and the diminution of his capacity for the enjoyment of life, as well as in respect of the probable inability of the plaintiff to earn an income equal to that which he has earned in the past; and the probability that but for the injury the plaintiff might have earned an increasing income is to be taken into account.

Shearman and Redfield on the Law of Negligence (vol. 3, p. 1994 [6th ed.]) in discussing the measure of damages for personal injuries, say:

In an action for negligent injury to the person of the plaintiff, he may recover the expense of his cure, the value of the time lost by him during his disabilities, and a fair compensation for the bodily and mental suffering caused by the injury, as well as for any permanent reduction of his power to earn money, provided, of course, that such damage is a proximate result of the injury. As already stated, allowance should be made for all such damages, future as well as past, if reasonably certain to occur. (Citing numerous authorities, including various decisions of the Supreme Court of the United States.)

As these rules, if not exclusively, upon the Anglo-American common law, it becomes necessary to inquire just what changes, if any, have been brought about by the enactment of the Employers’ Liability Acts.

Dresser on Employers’ Liability, section 18, says:

Subject to the limitation upon the amount, damages are to be measured in accordance with the common-law rules.

Reno’s Employers’ Liability Acts (2nd ed.), section 186, says:

The Massachusetts statute limits the amount of damages recoverable by an employee when his injury does not result in death to a sum not exceeding four thousand dollars. It does not prescribe any criterion for estimating the amount, but leaves the question to be settled upon general principles of law.

And further on (sec. 198) the same author states:

In Alabama it has been decided, in an action under its Employers’ Liability Act, that such (Exemplary or punitive) damages are not receivable where the injury results in death. The statute does not limit the amount of damages recoverable, and the measure of damages is determined upon common-law principles.

Labatt’s Master and Servant ([2d ed.], vol. 5, sec. 1730) lays down this rule:

The provisions specifying the amount recoverable by an injured servant do not give a measure of damages, but merely fix a limit beyond which the jury cannot award compensation. Within that limit the measure of damages is left to be determined upon the ordinary principles which regulate the assessment of the indemnity in actions for personal injuries.

Section 1 of the Federal Employers’ Liability Act (Act of Congress of April 22, 1908) provides “That every common carrier by railroad, while engaging in commerce between any of the several States or Territories, . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . .” The Supreme Court of the United States in Michigan Central R. R. Co. vs. Vreeland (227 U. S., 59, 65), in referring to the measure of damages recoverable under the Act, said:

It (the Act) plainly declares the liability of the carrier to its injured servant. If he had survived he might have recovered such damages as would have compensated him for his expense, loss of time, suffering, and diminished earning power.

And in St. Louis & Irom Mtn. Ry. vs. Craft (237 U. S., 648) the Supreme Court of the United States sustained a judgment, in an action brought under the Federal Employers’ Liability Act, of the State court in favor of the father of the deceased employee for $6,000, being $1,000 for the pecuniary loss to the father and $5,000 for the pain and suffering of the deceased.

What is the scope of the word damages as used in Act No. 1874? Did the Legislature intend that the measure of damages should be the same as that in the United States, from the country the Act was copied, or did it intend that the recovery should be limited to those elements of damages provide for by the Civil Code in personal injury cases?

In determining these questions it must be borne in mind that the intent of the Legislature is the law; that the legislative meaning is to be extracted from the statute as a whole. Its clauses are not to be segregated, but every part of a statute is to be construed with reference to every other part and every word and phrase in connection with its context, and that construction sought which gives effect to the whole of the statute — its every word; that the history of the statute from the time it was introduced until it was finally passed may afford aid to its construction; that where one legislature adopts, without change of phraseology, or with only a merely immaterial change a legislative act of another jurisdiction, if antecedent to its adoption, the statute has received a settled construction in the jurisdiction from which adopted, the Legislature is presumed to have adopted the construction along with the statute; and that a remedial statute is to be liberally construed to accomplish the purpose of its enactment. (Vol. 11, Encyclopedia of United States Supreme Court Reports under “Construction,” and cases cited.)

In Cerezo vs. Atlantic Gulf & Pacific Co. (supra), the court said:

We do not doubt that it was, prior to the passage of Act No. 1874 and still is, the duty of the employer in this jurisdiction to perform those duties, in reference to providing reasonably safe places, and safe and suitable ways, works, and machinery, etc., in and about which his employees are required to work, which, under the common law of England and America, are termed personal duties, and which in the United States are held to be such that the employer cannot delegate his responsibility and liability to his subordinates. (Rakes vs. Atlantic, Gulf & Pacific Co., 7 Phil. Rep., 359.)

The employer or master also impliedly agrees to furnish competent workmen (article 1903 of the Civil Code; Chaves and Garcia vs. Manila Electric R. R. & Light Co., 31 Phil. Rep., 47). Therefore, the master, under the Civil Code, can defend against an action by his servant by proving his own freedom from negligence; that the negligence of the servant was the immediate cause of the injury or that the accident happened through one of the ordinary risks of employment. On the other hand the servant can recover a portion of the damages resulting from the injuries, although he may be guilty of contributory negligence. (Rakes vs. Atlantic, Gulf & Pac. Co., supra.) And the Civil Code does not fit the maximum amount of the recovery.

Act No. 1874 should be liberally construed in favor of employees. The main purpose of the Act, as its title indicates, was to extend the liability of employers and to render them liable in damages for certain classes of personal injuries for which they are not liable under the Civil Code. And one of these classes of cases is that where injuries are cause to employees through the negligence of the master’s “superintendent,” although the master may have used due care in the selection of his superintendent. To this extent the master’s liability or responsibility has, in fact, been extended. But the defense of contributory negligence, as it is understood in the United States, is recognized in the Act with all its force and effect, as the first section requires as an essential requisite to recovery that the employee be “in the exercise of due care” at the time of the injury. The Act does not recognize the rule of comparative negligence. It fixes the maximum amount which the injured servant may recover. As to these matters, the Act restricts the master’s liability. And if the measure of damages is limited to conform with the Civil Code, the master’s liability would be further restricted.

If reference must be made to the Anglo-American common law to define the rights and duties of master and servants, as above indicated, what reasons exist for saying that the Legislature intended that the courts must look to the Civil code for the meaning and scope of the word “damages,” a word, according to the origin and history of the Act, of purely English origin, different in its scope from the Spanish word “daño“? It is said that the Act is an Employers’ Liability Act and not a law of damages. This contention is without foundation in law because “to extend and regulate the responsibility of employers’ means to enlarge their pecuniary liability, otherwise the phrase would be meaningless. One’s responsibility is his liability or obligation. The Act is remedial. By remedial is not meant that it pertains to a remedy in the sense of procedure such as the character and form of the action, the admissibility of evidence, etc. The Act defines certain rights which it will aid, and specifies the way in which it will aid them. So far as it defines, thereby creating, it is “substantive law.” So far as it provides a method of aiding and protecting, it is “adjective law,” or procedure. The right to damages is the essence of the cause of action. It is a substantive right granted by the Act. Take this away and the injured employee has nothing of value left. No one in this country has a vested interest in any rule of the Civil Code and the great office of the Act is to remedy defects in the Civil Code rules as they are developed.

The Congress of the United States, in conferring upon the personal representative of a deceased person, whose death was the result of a wrongful act, neglect or fault of any person or corporation in the District of Columbia, a right of action for damages, provided “that in no case shall the recovery under this Act, exceed the sum of $10,000.” (31 Stat. at Large, 1394, chap. 854.) The Federal Employers’ liability Act, referred to above, does not limit the amount of damages which may be recovered in actions brought thereunder. In Hyde vs. Southern Railway Co. (31 App. D. C., 466) the court held that the recovery under the last named Act was not limited to $10,000 as provided in the former Act. To the same effect is the case of Devine vs. C. R. I. & R. R. Co. (266 Ill., 248).

The inevitable conclusion is, therefore, that the Legislature intended that the measure of damages in personal injury cases brought under Act No. 1874 shall be the same as that in the country from which the Act was taken. The result is that Braulio Tamayo is entitled to recover, through his guardian ad litem, damages for pain and suffering and permanent injury, such damages being as they are the approximate result of the injuries. Bodily disfigurement is included in his permanent injury. It needs no proof to show that the severing of the ring finger at the first joint caused pain and suffering and a permanent injury and bodily disfigurement, although slight. The fact that damages for such injuries cannot be ascertained with mathematical exactness does not and should not defeat recovery for a reasonable amount.

In Gagnon vs. Klauder-Weldon Dyeing Mach. Co. (174 Fed. Rep., 477), the plaintiff was awarded $4,000. This was reduced to $3,000, the court saying:

As to the damages, there was no evidence that Gagnon has received less wages since his injury than he did before. He was out nothing. His wages were continued while laid up, and then he was given employment by defendant and later by others at no less wages than he had been receiving. But he suffered pain and permanent disfigurement of one hand. He lost two fingers and that part of the hand immediately below or behind them. His power to lift and handle things is interfered with and lessened. In some stations or businesses his earning power or ability to perform his duties would not be interfered with at all; in others it would be materially. What his future will demand of him cannot be foretold. As a mechanical blacksmith his ability to do work, handle things, is impaired. I do not think the jury was affected by passion or prejudice against corporations. They were carefully cautioned against this. While damages in such cases are largely discretionary with a jury, still that discretion is always within the control of the court. The pain and suffering in this case was not of long continuance, the disfigurement is confined to the one hand, the arm is not injured, the plaintiff can pick up and handle articles and handle all ordinary tools. I am of the opinion that the damages were excessive, all things considered, and that they should be reduced to $3,000.

In “City of Panama” vs. Phelps (101 U. S., 453) the court said:

Damages, in such a case, must depend very much upon the facts and circumstances proved at the trial. When the suit is brought by the party for personal injuries, there cannot be any fixed measure of compensation for the pain and anguish of body and mind, nor for the permanent injury to health and constitution, but the result must be left to turn mainly upon the good sense and deliberate judgment of the tribunal assigned by law to ascertain what is a just compensation for the injuries inflicted.

In Gahagan vs. Aeromotor Co. (67 Minn., 252) the plaintiff was awarded $1,800. this was reduced to $1,200, the court saying:

The only remaining question is whether the damages awarded are excessive. The boy, one of eight children, was between 8 and 9 years of age. Aside from doing such chores about the house as he was bidden by his parents, the only work he had ever engaged in was selling newspapers on the village streets. His father was a buthcer, whose occupation was to peddle through the country the flesh of animals which he bought and slaughtered. The injury to the boy consisted of the mangling of the ends of the ring and middle fingers of the left hand so as to require their amputation, — the one at the first joint, and the other just below the first joint. This was successfully done at one operation, and the fingers healed satisfactorily. Of course, this was necessarily accompanied by considerable pain; and there is some evidence to the effect that the ends of the finger may always be somewhat more sensitive to heat and cold than if not amputated. There was, also, the opinion of a physician that the muscles supplying those fingers will not develop as fully as they would if the whole fingers were there. It is also true that the amputation of the ends of these fingers constitutes something of a disfigurement of the person. We have no desire to belittle the right which every one, even in the humblest walks of life, has to the possession of all his faculties, both mental and physical, unimpaired. but we are compelled to the conclusion that, in any view of the case, the damages awarded to the boy are excessive. There are certain profession, such as that of instrumental music, where the loss of the ends of two fingers, even on the left hand, would be quite serious; but it is self-evident, without the aid of evidence, that in all the ordinary occupations of life the injury to the boy will be almost inappreciable. We have often had occasion to say that the question is not for what sum of money will compensate for it as far as money can compensate at all; and, where a person asks for pecuniary compensation, he cannot complain if the loss is estimated on a strictly pecuniary basis.

In Rittel vs. Souther Iron Co. (127 Mo. App., 463) in reducing the award from $4,500 to $3,000 and in disposing of the contention of the appellant that there was no evidence that the plaintiff’s earning capacity had been diminished by reason of the injuries, the court said:

Plaintiff, as stated, was a young man twenty-one years old at that time of the accident, and as far as appears he made his living by work similar to that he was doing when hurt; he was not a mechanic, but a common laborer. He testified that he had done no work from the date of the injury to the time of the trial; that prior to said time he had been earning nine dollars a week, and in his opinion he was unable to do the same kind of work he had been doing theretofore. We think it is a matter of general knowledge that a laboring man who has the thumb and forefinger of his right hand mashed has suffered a diminution of earning power.

Similar holdings appear in Olsen vs. Tacoma Smelting Co. (50 Wash., 128); Rommen vs. Empire Furniture Mfg. Co. ([1911] 118 Pac., 924); Duskey vs. Green Lake Shingle Co. (51 Wash., 145); Barclay vs. Puget Sound Lumber Co. (48 Wash., 241); Adams vs. Peterman Mfg. Co. (47 Wash., 484); Ball vs. Peterman Mfg. Co. (47 Wash., 653); Johnson vs. City of Bay City (164 Mich., 251).

This opinion is quite long, necessarily made so by the importance of the questions raised. The judgment being strictly in accordance with law and the merits of the case, the same is hereby affirmed, with costs against the appellant. So ordered.

Torres, Carson and Araullo, JJ., concur.

 

 

 

Separate Opinions

 

MORELAND, J., dissenting:

The proposition stated in the decision of the court in this case to which I propose to direct my attention is that the Employers’ Liability Act was intended by the Legislature of the Philippine Islands to be not only a law enunciating the principles of legal liability resulting from negligent acts and omissions in certain cases, but a law governing the measure of damages in such cases also. The process of reasoning by which the court reached this conclusion is, in the main, this: the Employers’ Liability Act of the Philippine Islands is a copy of the Employers’ Liability Act of the State of Massachusetts; and, says the court, that being so, it necessarily follows that the Legislature of the Philippine Islands, when it copied and passed the Employers’ Liability Act of the State of Massachusetts, intended, by virtue of the mere act of copying, to bring to the Islands not only the Employers’ Liability Act of the state of Massachusetts but the law of that State governing the measure of damages also.

I cannot bring myself to agree either with the position or with the arguments adduced to support it. nothing far short of an express declaration of the Philippine Legislature to that effect ought to be held to abrogate the settled principles of law governing the measure of damages in personal injury cases laid down in the Civil Code and to substitute in place thereof the law of a foreign country. There is no such declaration in the Employers’ Liability Act. I can find nothing in the Act which, in the remotest way, would suggest in my opinion, an intention to that effect.

The question under consideration arises in this way: A young boy working with dangerous machinery had the ends of some of his fingers of one hand cut off. On the trial he proved no pecuniary or actual damages. No one disputes this. The sole question is whether he can recover damages other than pecuniary or actual damages. The Supreme Court in its opinion states expressly that, under the law of the Philippine Islands as found in the Civil Code, he would not be entitled to recover damages for pain, suffering or mental anguish; and that, therefore, under the Civil Code, he could not maintain this action as he could prove no damages apart from those arising from pain and suffering. The court has, however, met this difficulty by asserting, as I have before indicated, that the law of damages of the Philippine Islands does not govern the case at bar for the reason that, the Employers’ Liability Act having been taken bodily for the state of Massachusetts and brought to the Philippine Islands, it necessarily follows that the law of the State of Massachusetts governing the measure of damages was brought along to the Islands with it; and that it is the law of the state of Massachusetts and not the Civil Code which governs the measure of damages in the Philippine Islands.

As I have already stated the Supreme Court holds in this very case that, under the law of the Philippine Islands, the plaintiff is not entitled to damages, as he proved no damages except those arising from pain and suffering. It says:

We now come to the consideration of damages. As above stated, the record fails to disclose to what extent, if any, the earning capacity of Braulio Tamayo has been diminished by reason of the injuries. He could not, therefore, recover any amount if this action had been brought under the Civil Code, as the services for medical attendance and salary during the confinement have been paid by the defendant. (Marcelo vs. Velasco, 11 Phil. Rep., 287; Algarra vs. Sandejas, 27 Phil. Rep., 284). But this court has never held that slight lameness or permanent injuries and pain and suffering are not elements of damages, but simply that damages cannot be allowed for the former, unless the extent of the diminution of the earning power or capacity is shown, and that the Civil Code does not include damages for the latter.

Before going forward with the discussion, I regard it necessary to examine the statement contained in the last sentence of the quotation. I confess that I cannot grasp its meaning except in part. The portion of the statement which I can not understand is this: “But this court has never held that. . . . pain and suffering are not element of damages, but
simply . . . that the Civil Code does not include damages for the latter,” that is, pain and suffering. If the court has held that the Civil Code does not authorize, and, therefore, does not permit, damages for pain and suffering, and, if the Civil Code contains all the law of the Philippine Islands on the subject of damages, which no one denies, how can it be said that “this court has never held that . . . pain and suffering are not elements of damages?” This court has held again and again that pain and suffering are not an element of damage under the law of the Philippine Islands; and has again and again refused to allow damages therefor. (Marcelo vs. Velasco, 11 Phil. Rep., 287; Algarra vs. Sandejas, 27 Phil. Rep., 284) The refusal was based on the finding that there was no law in the Philippine Islands authorizing damages to be given upon that ground. The court admits in the statement quoted that it has heretofore held “that the Civil Code does not include damages for the latter,” that is, for pain and suffering. How, then, is it possible for the court now to hold that pain and suffering are elements of damage? And how can it say that the court has not held that pain and suffering are not element of damage? The mere holding that there was no law in the Philippine Islands authorizing damages on such ground is of itself a declaration that pain and suffering are not an element of damage. If the court has declared that there is no law authorizing relief of a certain kind, it is equivalent to a declaration that the courts are not authorized to grant such relief.

I proceed with the discussion of the position taken by the court on the main question.

It must be said at the outset that the court rests its decision mainly on the statement that the law of damages of Massachusetts came here by virtue of the mechanical act of the draftsman of the Legislature of copying a statute of that State — a statute, by the way, entirely different from the one which this court holds was brought over. So far as I can see, there is no discussion of the grounds of this statement; no examination of the Act copied; no quotation of or even reference to any provision of law or statute to support the allegations; nothing except a naked statement of the court that it was brought over. The contention that the mere mechanical act of the copying of the Employers’ Liability Act of the State of Massachusetts by the Philippine Legislature produced necessarily the momentous result of repealing the law of this country regulating an important subject and of introducing in place thereof the law of Massachusetts, appears on its face, it seems to me, so unsound, that the most agent and powerful reason should be assigned to support it. The court has neglected to refer to any Act of the Philippine Legislature, to any statue, or to any other law to sustain its assertion. It simply says that the mere act of copying the Massachusetts Employers’ Liability Act is all that was necessary to enact into law not the Massachusetts Employers’ Liability Act by the Massachusetts law of damages.

There is possibly one exception to the statement that the court has neither cited nor referred to any statute, law, decision, principle or custom to support so strange a theory. It has referred to the word “damages” which it found in the Employers’ Liability Act. But that is all. It does not even quote or cite the sentence in which the word appears. It is wrenched from its setting and torn form the context and examined as a thing separate and apart, a species with no family or genus, something for a philologist, but not for a court. This reference by the court to the word “damages” and the argument based upon that isolated word, may be called an exception to or a qualification of my statement. I hesitate to admit it; for the reference is of such a nature that it serves only to prove the correctness of the statement. If the court could find nothing more in the Act of the Philippine Legislature to support its contention than a lone word taken from the statute, then is my statement, I believe, more than justified.

The quotation made from the opinion of the court is the opening statement in its argument to support the proposition that the Philippine Legislature brought from the State of Massachusetts with the Employers’ Liability Act the Massachusetts law of damages in negligence cases. As I regard this conclusion as erroneous I propose to follow the steps of the court in its argument for the purpose of determining where the difficulty lies. Immediately after the statement quoted comes a discussion of the rule of damages in negligence cases in England and in the various States of the Union and as set down by the Federal courts. Cases are cited to show that pain and suffering are element of damage under the common law. The court quotes from the Federal Employers’ Liability Act of the United States in cases arising under it to show that the rule of damages as laid down by the Federal courts includes compensation for pain and suffering. It is to be noted, however, that, when the Supreme Court was discussing and applying the law of damages in those cases it was not discussing, interpreting or applying the Federal Employers; Liability Act. It was construing and applying the law governing the measure of damage; and the law of damage has no more relation to the law governing the principles of legal liability than the law of bailments has to the law property. It must be said, therefore, that the whole discussion of the court concerning the measure of damages at common law, and its citations of and quotations from decisions of courts on that subject, are immaterial to the discussion of the very first proposition necessary to be established in this case to sustain the decision of this court; and that is that the Massachusetts law governing the measure of damages in personal injury cases was brought to the Philippine Islands by and along with the Employers’ Liability Act and is now force here. Until it is established that the Massachusetts law is here, it is idle to discuss what that law is. Now, what is the proof offered to demonstrate the correctness of the contention that the Massachusetts law of damages is a part of the Philippine law? Until that contention is shown to be correct beyond question, what good, I repeat, can result from a disquisition on the measure of damage at common law? Again, I ask, what has been offered on that subject?

Proceeding with its argument, the court says:

What is the scope of the word damages as used in Act No. 1874 (the Employers’ Liability Act)? Did the Legislature intend that the measure of damages should be the same as that in the United States, from which country the Act was copied, or did it intend that the recovery should be limited to those elements of damages provided for by the Civil Code in personal injury cases?

With this inquiry before me I see no reason for the existence of the previous steps in the discussion taken by the court. What may have been the law of damages as laid down by the Federal courts, the State courts, or the English courts has nothing to do with the discussion as to whether the Legislature of the Philippine Islands introduced into this country the law of damages of the State of Massachusetts. The discussion as to what is the measure of damages in England and in the various States of the Union would be material, as I have already said, only after the proposition had been established that the law of damages of England and of the United States had been imported into the Philippine Islands. But the question whether that law was actually imported into the Philippine Islands has nothing to do with the question as to what that law really is.

I note what I have before intimidated, that the court does not cite the provision or provisions of the Employers’ Liability Act of the Philippine Islands which shows that the law of damages of the State of Massachusetts or of England or of the United States was brought over to the Islands along with the Act itself. I should be interested to have the court point out the particular provision on which it relies to accomplish the striking result which its decision produces. I confess I can find no provision which I can even remotely construe into producing such an effect. In order that the whole Act be before us I have reproduced it in a footnote, including the title; ¹ and an examination of it discloses instantly that there is not a provision in it which, so far as I can judge, can be held to introduce into the Philippine Islands the law of damages of the State of Massachusetts or of any other state or country. Nor can I obtain such a result by viewing the Act as a whole. The title says that it is “An Act to extend and regulate the responsibility of employers for personal injuries and deaths suffered by their employees while at work.” In the marginal note of the official Act it is called “Employers’ Liability Act.” All the Act does or purports to do is to alter in some particular the principles of legal liability governing negligent acts or omissions then operative in the Philippine Islands. It does not touch and does not profess to touch the legal principles upon which damages are assessed in such cases, that is, the law governing the measure of damage. The law governing legal liability is quite distinct and separate from the law governing damages. The former tells us whether an action will lie or not; the latter tells us how much plaintiff’s judgment will be. The former tells us what must be proved to establish liability; the latter how to prove the amount to recovered. While the former lays down the foundation for the latter, they are, nevertheless, separate branches of the law, wholly unlike, wholly apart from each other, and governed by principles which have nothing in common. They are treated separately by courts, text books and encyclopedias. They have no more relation to each other than the law of wills and the law of waters.

This being so, how do the following remarks of the court, which immediately follow the last quotation, assist it to the conclusion that the law of damages of the State of Massachusetts came to the Philippine Islands with the Employers’ Liability Act?.

In determining these questions it must be borne in mind that the intent of the Legislature is the law; that the legislative meaning is to be extracted from the statute as a whole. Its clauses are not to be segregated, but every part of a statute is to be construed with reference to every other part and every word and phrase in connection with its context, and that construction sought gives effect to the whole of the statute — its every word.

Speaking generally, I have no objection to the principles enunciated in this quotation. But, it seems to me, the court has not applied them. It would seem, rather, that the court has disregarded them. Let us examine Act and admit that “the intent of the Legislature is the law,” that “the legislative meaning is to be extracted from the statute as a whole,” that “its clauses are not to be segregated,” and that we must give effect to “its every word,” and what is the result? Are we, in the light of these principles, to say that the Legislature intended to enact a law governing the measure of damages in the Philippine Islands when the title which the Legislature itself gave to the Act for the express purpose of telling us in a summary way what it proposed to do, shows that it tended to deal solely with the principles of legal liability and not with a distinct and separate branch of the law known as the measure of damage? Are we to say this when, so far as my judgment goes, the provisions of the Act are in absolute conformity with its title and both which seem to refute the contention that the Legislature intended that the Act, in addition to being a liability Act, should also be an Act dealing with the measure of damage which should change in a marked degree the present law on that subject? Can the Legislature be said to have intended such a sweeping change? Is there anything in the Act which justifies the repeal of numerous and important articles of the Civil Code, and the reversal of the decisions of the Supreme Court interpreting and supplying them? Where is the provision in the Act which declares that this country, a country of the Roman law, of the civil law, of the Spanish law, shall be agitated and confounded by a fundamental change in its century old system of damages in personal injury cases? Read the law, “its every word,” and then say whether the Legislature intended that one law of damages should apply to personal injuries sustained by one class of persons and a different law to injuries sustained by another class of persons; or that a person who had both legs cut off through the negligence of his employer should be able to obtain damages for pain and suffering, while his brother, who had both legs cut off through the negligence of a railroad company not his employer, should not be able to recover such damages?

It seems to me that such results should not be held to have been produced except upon the clear and explicit provisions of the statute. Where are these provision? Is not the invasion of an established and settled system, by a foreign law, of sufficient importance to require at least a reference to the specific authority under which the invasion occurs? And if there is any doubt about the authority should the invasion be permitted to succeed?

But the court seems to think that it has found a sufficient reason for the invasion. It says, as I have already intimated, that it finds somewhere in the statute the word damages.” The discovery of this word is that which provoked the question put by the court, already quoted, in which it asks “What is the scope of the word damages as used in Act No. 1874? Did the Legislature intend that the measure of damages should be the same as that in the United States, from which country the Act was copied, or did it intend that the recovery should be limited to those elements of damages provided for by the Civil Code in personal injury cases?”

These questions are immediately followed by the statement, also quoted, of the principles governing the conduct of one who desires to ascertain the intent of the Legislature; but I am afraid that the court did not follow those principles when it seized upon the lone word “damages,” discovered in the Act as the talisman which would disclose the intent which governed the Philippine Legislature when it passed the Employers’ Liability Act; for, while the court has just declared that the intent of the Legislature “is to be extracted from the statute as a whole,” that its words and clauses “are not to be segregated,” that “every part . . . is to be construed with reference to every other part and every word and phrase in common with its neighbors,” nevertheless, it seizes upon the single word “damages,” and, upon this word segregated from its “context,” and, without even a reference to any other line or word in the statute, bases a doctrine which changes in large part the nature of the Act. The result thus obtained violates, it seems to me, the enacting clause, destroys the distinction between legal liability and measure of damage which the Act respects, introduces into the Philippine Islands a new system of law, repeals important provisions of the Civil Code, and makes unjust distinctions between employees and other classes of persons equally deserving.

I cannot agree to this reasoning which is, in my judgment, the only item of argument or discussion in the opinion which is directed to the point to which my dissent and discussion refer:

If references must be made to the Anglo-American common law to define the rights and duties of master and servants as above indicated, what reasons exist for saying that the Legislature intended that the courts must look to the Civil Code for the meaning and scope of the word “damages,” a word, according to the origin and history of the Act, of purely English origin, different in its scope from the Spanish word “daño?” It is said that the Act is an Employers’ Liability Act and not a law of damages. This contention is without foundation in law because “to extend and regulate the responsibility of employers” means to enlarge their pecuniary liability, otherwise the phrase would be meaningless. One’s responsibility is his liability or obligation. The Act is remedial. By remedial is not meant that it pertains to a remedy in the sense of procedure such as the character and form of the action, the admissibility of evidence, etc. The act defines certain rights which it will aid, and specified the way in which it will aid them. So far as it define, thereby creating, it is “substantive law.” So far as it provides a method of aiding and protecting, it is “adjective law,” or procedure. The right to damage is the essence of the cause of action. It is a substantive right granted by the Act. Take this away and the injured employee has nothing of value left. No one in this country has a vested interest in any rule of the Civil Code and the great office of the Act is to remedy defects in the Civil Code rules as they are developed.

Let us examine the argument in detail. We may start out by doubting the correctness of the inferential statement found in the very first sentence of the quotation. I did not know that it was necessary to refer “to the Anglo-American common law to define the rights and duties of master and servant, as indicated above,” I had supposed that the very purpose of the Employers’ Liability Act was to define those rights and duties, so far as they relate to injuries occuring to employees while at work. I had believed that the precise object of employers’ liability acts in the States was the abrogation of the so-called Anglo-American common law, and of the Employers’ Liability Act of the Philippine Islands to abrogate the civil law as contained in the Civil Code by substituting in its place a statute which specifically and in detail defines those rights and duties. While the statute may be held to have given an additional remedy, certainly, when the remedy conferred by the statute is selected by the employee the common law in the States, the civil law here, ceases to operate. I had supposed, also, that where there is a statute dealing with a given subject, and which completely covers it, the statute is exclusively that to which we must look to ascertain the law on that subject. It is true that, if any word or provision of the statute is ambiguous and needs interpretation or construction before it can be applied, then we might, under certain circumstances, go to the decisions of the courts of a foreign state to ascertain what ideas they have expressed under similar conditions. But no such reference is permitted unless the provisions of the statute to be applied in the particular case are so ambiguous and uncertain as to require interpretation of construction before application is possible. The statute is the law and the only law concerning the matter of which it treats.

I must, therefore, doubt the correctness of the first sentence of the court’s only argument. There is no ambiguity in those provisions of the statute applicable to the case at bar. No one claims there is. The court asserts none. Until we know what provisions the court has held applicable we cannot know whether they are ambiguous or not. The case before us is a simple one, only three questions being involved — (First.) Was the defendant’s superintendent negligent in placing a child at work with dangerous machinery? (Second.) Was the child guilty of contributory negligence? (Third.) Was there damage proved and how much? The statute specifically covers every question of law in this case. It does not, of course, cover the questions of fact. Neither does the common law nor the civil law. But it covers every legal aspect of he case and clearly and definitely and without ambiguity lays down the rules which govern it; and I believe it to be erroneous to say that “reference must be made to the Anglo-American common law to define the rights and duties of master and servants.” The Employers’ Liability Act is the sole source of authority on that subject in the Philippine Islands in cases where it is invoked and is applicable. Reference to the common law is unnecessary. Aside from the fact that, in the absence of the Act, we would refer to the Civil Code and not to the common law, it may be said that the Act is itself sufficient for every purpose and the courts have no right to go outside of it on the assumption that interpretation is necessary. As we said in the case of Lizarraga Hermanos vs. Yap Tico (24 Phil. Rep., 504, 513):

The first and fundamental duty of courts, in our judgment, is to apply the law. Construction and interpretation come only after it has been demonstrated that application is impossible or inadequate without them. They are the very last functions which a court should exercise. The majority of the laws need no interpretation or construction. They require only application, and if there were more application and less construction, there would be more stability in the law, and more people would know what the law is.

Let us proceed to the next sentence. “It is said,” continues the court, “that the act is an Employers’ Liability Act and not a law of damages. This contention is without foundation in law because ‘to extend and regulate the responsibility of employers’ means to enlarge their pecuniary liability, otherwise the phrase would be meaningless.”

It seems to me that there is here a failure to grasp the difference between extending one’s liability and increasing the amount one must pay after liability is established. All that the Act does is to increase the number of occasions on which the employer will have to respond in damages. In other words, it makes it easier for his injured employee to establish his liability. It removes from his path certain hindrances and obstructions. Where the employer would not have been liable before the act was passed, he is liable now. Where, before the act was passed, a certain amount of proof was required, now less is required. The act changes the source from which the injured employee draws his rights; and, in changing the source, it at the same time increases the number of rights and the ease with which they may be exercised. But the change in the source of rights and the increase in the ease with which they may be exercised is very far from an increase in the amount of the judgment the employee will get as the ultimate result of an exercise of those rights. A right of action has nothing whatever to do with the amount of recovery; yet these are precisely the two things the court has confused to such an extent as to call them the same. To increase the number of occasions in which an employer will be liable is an entirely different thing from increasing the amount of damages which he will have to pay on each of the increased occasions. ² Moreover, looked at from a standpoint other than principle, it would be mulcting the employer from both pockets at the same time. The occasions of his liability would be increased and the amount he would have to pay on each of those increased occasions would also be augmented by the amount of damages allowed for pain and suffering. That the Legislature did not intend such a result is evident from the fact that, while the Act increased the occasions on which employers would be liable and the ease with which the employee might take advantage of those occasions, at the same time and as a partial compensation, the act limited the amount of the latter’s recovery in certain cases.

I pass over the intervening sentence of the quotation and come at once to these: “The right to damages is the essence of the cause of action. It is a substantive right and granted by the Act. Take this away and the injured employee has nothing of value left.” “One’s responsibility is his liability or obligation.” Let all this be admitted, and still we may properly put the question, what has it to do with the matter in hand? Here again, it seems to me, is the confusion between a right of action and the amount of the recovery. No one is denying the employee his right of action. Indeed, as for myself, I am contending that the Act increases the number of occasions on which he will have a right of action. All I am doing is combating the proposition that an increase in the number of occasions on which the employer is liable means an increase in the amount of the recovery in any given occasion. I desire to maintain the distinction between a right of action and the amount of the recovery; the liability and the amount to be paid; the principles governing legal liability and those governing the measure of damages.

Having arrived at the conclusion that no damages was proved, I do not pass on the other questions discussed by the court.

Footnotes

1 No. 1874. — AN ACT TO EXTEND AND REGULATE THE RESPONSIBILITY OF EMPLOYERS FOR PERSONAL INJURIES AND DEATHS SUFFERED BY THEIR EMPLOYEES WHILE AT WORK.

By authority of the United States, be it enacted by the Philippine Legislature, that:

SECTION 1. If personal injury is caused to an employee, who, at the time of the injury, is in the exercise of due care, by reason of —

First, a defect in the condition of the ways, works, or machinery connected with or used in the business of the employer, which arose from, or had not been discovered or remedied in consequence of, the negligence of the employer or of a person in his service who had been intrusted by him with the duty of seeing that the ways, works, or machinery were in proper condition; or

Second, the negligence of a person in the service of the employer who was intrusted with and was exercising superintendence and whose sole or principal duty was that of superintendence, or, in the absence of such superintendent, of a person acting as superintendent with the authority or consent of such employer; or

Third, the negligence of a person in the service of the employer who was incharge or control of a signal, switch, locomotive engine, or train upon a railroad; the employee, or his legal representatives, shall, subject to the provisions of this Act, have the same rights to compensation and of action against the employer as if he had not been an employee, nor in the service, nor engaged in the work, of the employer.

A car which is in use by, or which is in possession of, a railroad corporation shall be considered as part of the ways, works, or machinery of the corporation which uses or has it in possession, within the meaning of clause on of this section, whether it is owned by such corporation or by some other company or person. One or more cars which are in motion, whether attached to an engine or not, shall constitute a train within their meaning of clause three of this section, and whoever, as part of his duty for the time being, physically controls or directs the movements of a signal, switch, locomotive engine, or train shall be deemed to be a person in charge or control of a signal, switch, locomotive engine, or train within the meaning of said clause.

SEC. 2. If, as the result of the negligence of the employer or that of a person for whose negligence the employer is liable under the provisions of section one, an employee is killed or dies by reason of injuries received, his widow, or legal heirs, or next of kin who at the time of his death were dependent upon his wages for support, shall have a right of action for damages against the employer.

SEC. 3. If, under the provisions of this Act, damages are awarded for the death, they shall be assessed with reference to the degree of culpability of the employer or of the person for whose negligence the employer is liable.

The amount of damages which may be awarded in an action under the provisions of section one for a personal injury to an employee, in which no damages for his death are awarded under the provisions of section two, shall not exceed two thousand pesos.

The amount damages which may be awarded in such action, if damages for his death are awarded under the provisions of section two, shall not be less than five thousand pesos nor more than two thousand five hundred pesos for both the injury and the death.

SEC. 4. No action for damages for injuries or death under this Act shall be maintained if a report thereof is not furnished to the employer within ninety days of the date, place, and cause of the injury or in the action is not brought within one year from the time of the accident causing the injury or death. The report required by this section shall be made in writing and signed by the person injured or by another in his name, or if, on account of physical or mental disability, it is impossible for the person injured to give the notice within the time provided by this section, the same may be given within ten days after such disability shall have been removed, and in case of death without said report having been given and without the person having for ten days at any time after the period above mentioned been able to give such notice, the widow, legal heirs, or next of kin dependent upon his wages for support, may give such notice within thirty days following the death of the laborer. No report given under the provisions of this Act shall be considered void or insufficient by reason only of some inaccuracy sa regards the date, place, or cause of the injury, if there was no intention to mislead or the employer has not been misled by reason of such inaccuracy.

SEC. 5. All actions for damages which may be brought under this Act shall have preference over all other matters save and except criminal cases and habeas corpus matters on the dockets of the courts of first instance, and shall be promptly tried by the court and decided within fifteen days after final submission of the case to the court for decision.

On application to the court by the party injured or by his duly authorized representatives, the court may make a proper allowance for food and medical attendance during the pendency of the action and while medical attendance is till necessary by reason of the injury: Provided, however, That the defendant in the action shall be given an opportunity to be heard before any such allowance is made.

SEC. 6. If an employer enters into a contract, written or verbal, with an independent contractor to do part of such employer’s work, or if such contractor enters into a contract with a subcontractor to do all or any part of the work comprised in such contractor’s contract with the employer, such contract or subcontract shall not bar the liability of the employer for injuries to the employees of such contractor or subcontractor caused by any defect in the condition of the ways, works, machinery, or plant, if they are the property of the employer or are furnished by him and if such defect arose or had not been discovered or remedied through the negligence of the employer or of some person intrusted by him with the duty of seeing that they were in proper condition.

SEC. 7. An employer who shall have contributed to an insurance fund created and maintained for the mutual purpose of indemnifying an employee for personal injuries for which compensation may be recovered under the provisions of this Act or who shall have contributed to any relief society for the same purpose may prove in mitigation of the damages recoverable by an employee under the provisions of this Act such proportion of the pecuniary benefit which has been received by such employee from any fund or society on account of such contribution of said employer as the contribution of such employer to such fund or society bears to the whole contribution thereto.

SEC. 8. An employee or his legal representatives shall not be entitled under the provisions of this Act to any right of action for damages against his employer if such employee knew of the defect or negligence which caused the injury and failed within a reasonable time to give or cause to be given information thereof to the employer or to some person superior to himself in the service of the employer who was intrusted with general superintendence.

SEC. 9. This Act shall not be applicable to domestic servants or agricultural laborers.

SEC. 10. Any agreement to renounce the benefits of this Act made by the laborer prior to the occurrence of any accident resulting in his injury or death shall be null and void.

SEC. 11. This Act shall take effect on its passage.

Enacted, June 19, 1908.

2 This principle was expressly applied in the recent case of Dharamdas vs. Haroomall (35 Phil. Rep., 183), where the headnote reads:

”Where a statute deals exclusively with the principles touching the liability of persons in a specified class of cases it will not be held to affect the law of the land governing damages applicable in such cases when liability has been established.”

In the body of the opinion the court said:

”This, as will be seen at a glance, simply confers the right to bring a civil action to obtain the relief which, formerly, could be secured only in a criminal action. No rule or measure of damages is laid down by the Act; and the statute having for its only purpose the giving of an `additional remedy’ and not revoking, repealing or modifying `any other civil remedy which the existing law may afford,’ affects in no way the law of the land relating to the rule or measure of damages in such cases. The statute really affects method only. It does not interfere with the substantive law. The right always existed in all cases. The statute simply offers another method of making that right effective. The nature of the right and the results flowing therefrom, both criminally and civilly, are unaffected by the Act.”

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