Cerezo vs. The Atlantic Gulf & Pacific Company

An employer is not liable under the Employers' Liability Act (Act No. 1874) for the death of an employee who, at the time of injury, was at a place outside the scope of his employment and to which his duties did not call him and which he was not permitted to use. Under the Civil Code, an employer is not liable for an unforeseeable accident where ordinary care did not require the precaution alleged to be lacking. Act No. 1874 is remedial and concurrent, not exclusive; it does not curtail remedies existing under the Civil Code.

Clara Cerezo was the mother of Jorge Ocumen, a day laborer employed by The Atlantic Gulf & Pacific Company, which was engaged in laying gas pipes in Manila. The action implicated Act No. 1874, the Employers' Liability Act, which was essentially a copy of the Massachusetts Employers' Liability Act and, through it, the English statute, and which modified certain common-law defenses available to employers in personal-injury actions. The decision also considered the Civil Code provisions on foreseeability, fault or negligence, and vicarious liability.

Clara Cerezo brought an action for damages against The Atlantic Gulf & Pacific Company for negligently causing the death of her son, Jorge Ocumen, on July 7, 1913; Ocumen was her only means of support. At the time of the accident, Ocumen was employed by the company as a day laborer assisting in laying gas pipes on Calle Herran in the City of Manila. The company had dug a trench on Calle Herran, completed both ways from a cross-trench in Calle Paz, and the pipes had been laid therein up to that point. The men of Ocumen's gang were filling the west end of the trench, and no work was in progress at the east end.

Shortly after Ocumen entered the trench at the east end to answer a call of nature, the bank caved in, burying him to his neck in dirt; he died before he could be released. It was not shown that he had received orders from the company to enter the trench at that point, that the trench had been prepared as a water-closet, or that the company acquiesced in its use for that purpose. The trench at the place of the accident was between 3 and 4 feet deep. Nothing remained to be done there except to refill the trench as soon as the pipes were connected, and the refilling was delayed at that place until the connection was completed. At the time of the accident, the place where Ocumen's duty of refilling the trench required him to be was at the west end, and there was no contention that refilling the trench involved any danger.

The plaintiff insisted that the company was negligent in failing to shore or brace the trench at the place where the accident occurred. The company, on the other hand, urged that it was under no obligation, insofar as Ocumen was concerned, to brace the trench absent a showing that the soil was loose or the place itself dangerous, and that although the relation of master and servant may not have ceased for the time being, it was under no duty to Ocumen except to do him no intentional injury and to furnish him with a reasonably safe place to work.

The evidence included testimony from Gideon, city engineer of Manila, that trenches considered very dangerous were shored with sheathing piles and braces, while shallow or safe-ground trenches were simply excavated, with precautions depending on an experienced engineer's judgment. Seaver, chief of police of Manila, and Captain Ordax of the police department testified that the slide came principally from the side of the trench farthest from the street-car tracks. Another witness testified that the distance from the tracks to the trench was only a few feet, but that the trench had been open for a week. No witness established that there was water at the bottom, although some said it was damp. The trench was only three and one-half to four and one-half feet deep. Ocumen's death was caused not by the weight of the earth but by suffocation; he was sitting or squatting when the slide gave way, and had he been even half-erect it was highly probable that he would have escaped suffocation or serious injury. The accident was therefore of a most unusual character, and the walls had maintained themselves for a week without indication of giving way.

• Negligence in Failing to Shore or Brace: Plaintiff maintained that the defendant was negligent in failing to shore or brace the trench at the place where the accident occurred.

• No Duty to Brace Absent Danger: Defendant urged that it was under no obligation, insofar as the deceased was concerned, to brace the trench, absent a showing that the soil was of a loose character or the place itself was dangerous.
• Limited Duty to Employee: Defendant argued that although the relation of master and servant may not have ceased for the time being, it was under no duty to the deceased except to do him no intentional injury and to furnish him with a reasonably safe place to work.

• Employers' Liability Act — Scope of Employment: Whether recovery could be had under Act No. 1874 for the death of an employee who entered a trench at a place outside the scope of his employment and for his own personal purpose.
• Civil Code — Foreseeability and Ordinary Care: Whether the employer was liable under the Civil Code for failing to shore or brace the trench at the place where the accident occurred.
• Effect of Act No. 1874: Whether Act No. 1874 curtailed or displaced remedies existing under the Civil Code or common law.

• Employers' Liability Act — Scope of Employment: No. Recovery cannot be had under Act No. 1874 because the deceased was at a place where he had no right to be; his work did not call him there, and no permission or acquiescence was shown.
• Civil Code — Foreseeability and Ordinary Care: No. The accident was not foreseeable, and ordinary care did not require the shoring of the trench walls at the place where the deceased met his death.
• Effect of Act No. 1874: No. Act No. 1874 was remedial and concurrent, not exclusive; it did not curtail rights existing under the Civil Code, and an employee with a pre-existing remedy could still sue under the same conditions and recover the same damages as if the Act had not been passed.

• Employers' Liability Act — Scope of Employment: Act No. 1874 is essentially a copy of the Massachusetts Employers' Liability Act, which was copied from the English statute. The Act was intended to extend employer liability and to abolish certain common-law defenses in specified cases, not to codify the entire law of employer liability or to define generally the rights and duties of masters and servants. Common-law principles still determine who are masters and servants, the scope of employment, and whether negligence is the proximate cause. The master's duty to provide a safe place to work extends only to such parts of the premises as he has prepared for the employee's occupancy while doing his work and to such other parts as he knows or ought to know the employee is accustomed to use; it does not extend to places the employee visits merely for his own convenience, where his legal rights are no greater than those of a licensee. Here, Ocumen entered the east end of the trench to answer a call of nature. His work did not call him there; he had no orders to enter at that point; the trench had not been prepared as a water-closet; and the company had not acquiesced in its use for that purpose. Under Anglo-American law, the master is not responsible under the Employers' Liability Act for accidents to employees when they are outside the scope of their employment for purposes of their own. Recovery under the Act was therefore unavailable.
• Civil Code — Foreseeability and Ordinary Care: Article 1105 of the Civil Code provides that no one shall be liable for events which could not be foreseen, or which, having been foreseen, were inevitable, except in cases expressly mentioned in the law or where the obligation so declares. Article 1902 imposes liability for damage caused by fault or negligence, and Article 1903 makes principals liable for the acts of their employees but allows that liability to cease upon proof that they employed all the diligence of a good father of a family to avoid the damage. The employer had provided a reasonably safe place for the work the deceased was required to perform; its liability was then limited to events that could have been foreseen. The evidence showed that the trench was only three and one-half to four and one-half feet deep, had been open for a week, and had maintained its walls without indication of giving way; there was no water at the bottom, although the earth was damp. The slide came principally from the side farthest from the street-car tracks. Death resulted from suffocation because Ocumen was sitting or squatting; had he been even half-erect, he would probably have escaped suffocation or serious injury. The accident was unusual. Ordinary care did not require the company to shore or brace the trench walls at that place, and requiring it to guard against such an accident would virtually compel it to shore up every foot of the miles of trenches it dug in Manila for gas mains. The event fell within the class of those that could not be foreseen, and the defendant was therefore not liable under the Civil Code.
• Effect of Act No. 1874: The Act did not curtail the rights of employees. In cases either within or without the words of the Act in which the law as it stood prior to the Act gave an employee a remedy, the employee retained the right to sue under the same conditions and to recover damages to the same extent as if the Act had not been passed. The provisions of section 1 giving employees the same rights to compensation and action as if they had not been employees, the notice requirement, the limitation period, and the requirement of notice of defect or negligence applied only to cases lying outside the Civil and allied Codes but embraced by the Act, unless the plaintiff, although having a remedy under the Civil Code, insisted on relying upon the Act alone. Act No. 2473 did not change these principles. Thus, although the plaintiff could seek recovery under either Act No. 1874 or the Civil Code, the facts failed to establish liability under both.

• Employers' Liability Act as Remedial and Concurrent — Act No. 1874 was intended to extend employer liability and to abolish certain common-law defenses in specified cases, not to codify the law or to curtail existing remedies. It is concurrent with, not exclusive of, the Civil Code; where the law prior to the Act gave an employee a remedy, he may still sue under the same conditions and recover the same damages as if the Act had not been passed. The Court applied this by examining both Act No. 1874 and the Civil Code before denying recovery under both.
• Scope of Employment and the Master's Safe-Place Duty — The master's duty to furnish a safe place to work extends only to parts of the premises prepared for the employee's occupancy while doing his work and to such other parts as the master knows or ought to know the employee is accustomed to use. It does not extend to places the employee visits merely for his own convenience; there his legal rights are no greater than those of a licensee. The Court applied this to hold that the deceased, who entered the trench at the east end for a call of nature, was outside the scope of his employment and could not recover under the Act.
• Foreseeability and Ordinary Care under the Civil Code — Under Article 1105, no one is liable for events that could not be foreseen or that, having been foreseen, were inevitable, except in cases expressly mentioned. Under Articles 1902 and 1903, employer liability requires fault or negligence and ceases upon proof of the diligence of a good father of a family. The Court applied this to find that the trench accident was unusual and unforeseeable and that ordinary care did not require shoring, so no Civil Code liability attached.
• Adoption of a Foreign Statute with Its Prior Construction — When a statute is adopted from another state or country and has previously been construed by the courts of that jurisdiction, the statute is deemed to have been adopted with the construction so given. The Court applied this principle to Act No. 1874, which was copied from the Massachusetts Employers' Liability Act and, through it, the English statute, and construed it in light of those jurisdictions' prior interpretations.

• "The net result is that we are required, under the pleadings and record in the case at bar, to determine whether the plaintiff can recover for the death of her son under either Act No. 1874 or the Civil Code." — This frames the central inquiry: whether the plaintiff had a cause of action under the Employers' Liability Act or the Civil Code.
• "Assuming that the excavation for the gas pipe is within the category of 'ways, works, or machinery connected with the used in the business of the defendant,' we are of the opinion that recovery cannot be had under the Act for the reason that, as we have indicated, the deceased was at a place where he had no right to be at the time he met his death." — This is the ratio for denying recovery under Act No. 1874: the employee was outside the scope of his employment at the time of the accident.
• "Upon a full consideration of the evidence, we are clearly of the opinion that ordinary care did not require the shoring of the trench walls at the place where the deceased met his death. The event properly comes within the class of those which could not be foreseen; and, therefore, the defendant is not liable under the Civil Code." — This states the ratio for denying Civil Code liability: the accident was unforeseeable and the employer did not breach the ordinary-care standard.
• "in those cases either within or without the words of the Act in which the law, as it stood prior to the passage of the Act, gives an employee a remedy, he still has a right to sue under the same conditions and to recover damages to the same extent as if the Act had not been passed." — This defines the remedial and concurrent character of Act No. 1874 and confirms that it did not supplant pre-existing Civil Code remedies.

• Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359, 366 — Cited for the employer's implied contractual obligation to provide safe appliances for employees and for the rule that a plaintiff not in the exercise of due care could not recover under the Employers' Liability Act.
• Eades vs. Atlantic Gulf and Pacific Co., 19 Phil. Rep., 561 — Cited in connection with the Civil Code's treatment of contributory negligence, which under the Civil Code does not operate as a complete defense as it does under the Act.
• Chaves and Garcia vs. Manila Electric Railroad and Light Co., 31 Phil. Rep., 47 — Cited for employer liability under the Civil Code and the defense of having employed the diligence of a good father of a family.
• Ryalls vs. Mechanics' Mills, 150 Mass., 190; 5 L.R.A. 667 — Cited for the Massachusetts statute's derivation from the English Act and for the principle that the Act's procedural requirements apply only to cases outside the Civil Code unless the plaintiff relies on the Act alone.
• Wilson vs. Merry, L.R. 1 H.L. Sc. Appl Cas., 326; 19 Eng. Rul. Cas., 132 — Cited as the House of Lords decision that settled the common-law fellow-servant doctrine and impelled passage of the English Employers' Liability Act.
• Thomas vs. Quartermaine, 18 Q. B. D., 685 — Cited for the view that the Act placed the workman in a position as advantageous as, but no better than, the rest of the world using the master's premises, and for the Act's effect on assumption of risk.
• Mobile etc., Ry. Co. vs. Holborn, 84 Ala., 133 — Cited for the purpose of the statute: to protect employees against special defenses incidental to the employment relation while leaving the employer all common-law defenses available against a member of the public.
• Seaboard Air Line Railway vs. Horton, 233 U.S., 492, 503 — Cited for the distinction between contributory negligence and assumption of risk.
• McCafferty vs. Lewando's F. D. and C. Co., 1914 Mass., 412; 120 Am. St. Rep., 562 — Cited for the proposition that, as to defects in ways, works, and machinery, liability under the Employers' Liability Act and at common law is the same except as to the amount recoverable.
• Connell vs. New York C. and H. R. R. Co., 129 N. Y., Sup. 666; Louisville and N. R. R. Co. vs. Hocker, 111 Ky., 707; Gawlack vs. Michigan C. R. Co., 11 Ohio C. C., 59; Pfeiffer vs. Ringer, 12 Daly, 437 — Cited as cases in which injured employees attending a call of nature at unauthorized dangerous places were held outside the scope of employment and without a right of action against the employer.
• Wilson vs. Louisville, etc., R. Co., 35 Ala., 269 — Cited for the rule that, under the statute, negligence in causing or failing to discover or remedy a defect is essential, and common-law principles determine what constitutes a defect or negligence.
• Colorado Milling and Elevator Co. vs. Mitchell, 26 Colo., 284 — Cited for the proposition that the statutory clauses were a legislative recognition of principles laid down in prior decisions.
• Toomey vs. Donovan, 158 Mass., 232 — Cited for the observation that the provision corresponding to section 6 of the Philippine Act enlarges the liability of the employer.
• Griffiths vs. Earl or Dudley, 9 Q. B. D., 357, 362 — Cited for the object of the Act: to obviate injustice where persons with superintendence and control are negligent.
• Henahan vs. Lyons (1909), 201 Mass., 269 — Cited for the rule that there can be no recovery for the negligence of an employee where there is no evidence that superintendence was his sole or principal duty.
• Southern Ry. Co. vs. Crockett, 234 U.S., 725 — Cited for the rule that the defense of assumption of risk remains as at common law under the Federal Employers' Liability Act, except in cases mentioned in section 4.
• Regan vs. Lombard, 192 Mass., 319 — Cited for the rule that, assuming the negligence of a superintendent, the servant could not recover if guilty of contributory negligence.
• Quinlan vs. Lackawanna Steel Co., 107 App. Div., 176; 94 N. Y. S., 942 — Cited for the Act's intention to make the employer liable for the acts of a superintendent while engaged in acts of superintendence.
• Walton vs. Tennessee Coal, Iron & R. R. Co., 166 Ala., 538 — Cited for the rule that the statute does not make the master liable for the negligence of an employee who is a mere fellow servant and nothing more.
• Birmingham Ry. and Electric Co. vs. Allen, 99 Ala., 359, 371; 120 L. R. A., 457 — Cited for the weight of foreign decisions construing similar statutes and for the effect of the Act on assumption of risk.
• Wilson vs. Chesapeake and O. Ry. Co., 130 Ky., 182 — Cited as a case where an employee who left his work to get something to eat was held outside the scope of employment.
• Pioneer Mining and Mfg. Co. vs. Talley, 12 L. R. A., N. S., 861 — Cited as a case where a miner who left his work to get his own tools was held outside the scope of employment.
• McCann vs. Atlantic Mills, 20 R. I., 566 — Cited as a case where an employee who went into a dark place to get a drink of water was held outside the scope of employment.
• Adams vs. Iron Cliffs Co., 78 Mich., 271; 18 Am. St. Rep., 441 — Cited as a case where an employee who left work to attend to private business was held outside the scope of employment.

• Act No. 1874, Section 1 — The Employers' Liability Act. Its first subsection was declaratory of the common-law duty to provide safe places, machinery, and appliances; it required that the employee be in the exercise of due care; and it gave the employee or his legal representative rights to compensation and action as if he had not been an employee, subject to the Act. The Court applied it to deny recovery because the deceased was outside the scope of his employment.
• Act No. 1874, Section 6 — Mentioned as corresponding to section 4 of the Massachusetts Act, which enlarged the employer's liability where a contractor performed part of the work and the contractor's employee was injured by a defect in the ways, works, machinery, or plant furnished by the employer. The Court referenced it in discussing the Act's remedial scope.
• Act No. 2473 — Mentioned as not having changed the principles governing the effect of Act No. 1874 on existing remedies. The Court applied it to confirm that the earlier analysis of Act No. 1874 remained unchanged.
• Civil Code, Article 1105 — Provides that no one shall be liable for events which could not be foreseen, or which, having been foreseen, were inevitable, except in cases expressly mentioned in the law or where the obligation so declares. The Court applied it to hold that the trench accident was not foreseeable and therefore did not create liability.
• Civil Code, Article 1902 — Provides that a person who, by an act or omission, causes damage to another when there is fault or negligence shall be obliged to repair the damage. The Court applied it to find no fault or negligence because ordinary care did not require shoring the trench.
• Civil Code, Article 1903 — Provides for the liability of principals for the acts of their employees, agents, or those for whom they are responsible, but such liability ceases when they prove that they employed all the diligence of a good father of a family to avoid the damage. The Court applied it to hold that the employer had provided a reasonably safe place and was not liable.

Arellano, C.J., Torres, Johnson and Araullo, JJ., concur.

• Carson, J. — Dissented. The provided text does not set out the grounds for the dissent.