Cuevo vs. Barredo

An employer is liable for the death of an employee caused by the negligence of a foreman or superintendent acting within the scope of his authority, even where the complaint does not expressly allege such negligence, because Act No. 2473 establishes a legal presumption of neglect on the part of the employer. The employee's obedience to a threatening order issued under circumstances giving no time for reflection does not constitute contributory negligence barring recovery, and partial dependence on the deceased's wages is sufficient to entitle the heir to indemnity.

The case arose under Act No. 1874, the Philippine Employers' Liability Act, which extended and regulated the responsibility of employers for personal injuries and deaths suffered by employees while at work. The statute, as amended by Act No. 2473, created a presumption of employer negligence in litigation instituted by a laborer or his heirs. The defendant, Fausto Barredo, was the contractor engaged in constructing a bridge annex to the Ayala bridge, with work performed on a concrete pier in the middle of the Pasig River adjoining Convalescencia Island.

On August 3, 1935, a strong wind was blowing in the City of Manila and a typhoon signal had been raised, making the current of the Pasig River swift and strong. On that date, Anastacio Lozano was working as a carpenter for the defendant, Fausto Barredo, on the job of cementing and setting up a concrete pier in the middle of the Pasig River, adjoining Convalescencia Island, and two abutments on the banks, upon which a bridge annexed to the Ayala bridge was to be constructed. While Lozano was working, a wavelet produced by a passing launch reached a heap of unfastened logs that were to be used as piles, causing one of the logs to be carried away by the current. Yoshio Tagashira, the defendant's foreman, upon seeing the log being carried away, cried out that the log should be recovered, otherwise they would have to pay for its value. Lozano, who knew how to swim and could swim across the Pasig River, leaped into the water, swam, and attempted to recover the log, but unfortunately drowned.

The Court of Appeals, in affirming the absolutory judgment of the Court of First Instance, held that the defendant was not bound under section 1, clause 1 of Act No. 1874 to pay indemnity because the death was accidental and not due to a defect in the condition of the ways, works, or machinery connected with the business. Nor was the defendant liable under clause 2 of the same section, according to the appellate court, because the death was not due to the negligence of the defendant or of a person in his service entrusted with superintendence, and if it were, the deceased employee failed to exercise due care.

The plaintiff, Silvestra Cuevo, was the mother of the deceased. She had been married in second wedlock to one Tomas Diaz, who had no permanent employment and did not earn enough for her and her children's support, and her deceased son used to give her all his earnings. The complaint alleged that Lozano was performing his usual work with due care when a log of the defendant's property was carried away by the strong current and, trying to save it, he was carried by the current and drowned.

• Sufficiency of Complaint: Petitioner argued that the complaint stated a sufficient cause of action under section 1, clause 2 of Act No. 1874, notwithstanding the absence of an express allegation of the foreman's negligence, because Act No. 2473 established a legal presumption of neglect on the part of the employer.
• Change of Theory on Appeal: Petitioner maintained that although her theory in the Court of First Instance differed from that advanced in the Court of Appeals, evidence supporting both theories had been adduced without objection, and her prayer for such other remedy as the court may deem just and equitable authorized the appellate court to decide the case on the allegations constituting a cause of action.

• No Liability Under Clause 1: Respondent argued that the log was not a way, work, or machinery used in the construction but a mere material to be employed in the work, and it was not the thing that directly or indirectly caused Lozano's death.
• No Negligence of Superintendent: Respondent contended that the death was not due to the negligence of a person entrusted with superintendence, and that the deceased employee failed to exercise due care in leaping into the swollen river.

• Sufficiency of Complaint: Whether the complaint stated a sufficient cause of action under section 1, clause 2 of Act No. 1874 despite failing to expressly allege the foreman's negligence.
• Change of Theory on Appeal: Whether the plaintiff could maintain a cause of action on appeal different from the theory she advanced in the trial court.
• Negligence of the Foreman: Whether the foreman's threatening order constituted negligence for which the employer was liable.
• Contributory Negligence of the Employee: Whether the deceased employee's act of leaping into the water constituted failure to exercise due care barring recovery.
• Dependency of the Heir: Whether the plaintiff's partial dependence on the deceased's wages satisfied the dependency requirement of section 2 of Act No. 1874.

• Sufficiency of Complaint: Yes. The complaint stated a sufficient cause of action under section 1, clause 2 of Act No. 1874, because Act No. 2473 established a legal presumption of neglect on the part of the employer, making it unnecessary to allege the foreman's negligence.
• Change of Theory on Appeal: Yes. Where a complaint is based upon two causes of action, for both of which evidence has been presented without objection, any of said causes of action may be maintained on appeal, and the theory is not altered thereby.
• Negligence of the Foreman: Yes. The foreman committed negligence by issuing a threatening order without taking the necessary precautions to protect the life of the employee who might obey it, knowing that anyone who leaped into the water under those circumstances would run the risk of drowning.
• Contributory Negligence of the Employee: No. The employee was not guilty of negligence because, having been placed by the foreman in a situation where he had no time to make use of his reflective faculties, he could not be blamed for acting as he did in obeying the threatening order under the psychological impulse of the moment.
• Dependency of the Heir: Yes. Section 2 of Act No. 1874 does not require that the legitimate heir's dependence upon the salary of the deceased employee be total; it is sufficient that such dependence be partial.

• Sufficiency of Complaint: The Court reasoned that while an allegation of the foreman's negligence was lacking, section 1 of Act No. 2473, amending Act No. 1874, provides that in all litigations instituted by a laborer or by his heirs under the provisions of Act No. 1874, neglect on the part of the employer shall constitute a presumption of law. Because the negligence of the employer is presumed by law, it is unnecessary to allege such requisite in a complaint filed by a laborer or by his heirs. The allegations of the complaint were sufficient to constitute a cause of action, and since the existence of the alleged facts was proven by a preponderance of evidence, no amendment was necessary, there being no variance between the allegations and the facts found under section 109 of Act No. 190.

• Change of Theory on Appeal: The Court held that although the theory maintained by the plaintiff in the Court of First Instance differed from that maintained in the Court of Appeals, evidence in support of both theories had been adduced in the court of origin without objection. Since the plaintiff had prayed in her complaint that she be granted such other remedy as the court may deem just and equitable under the premises, the Court was authorized under the procedural law to decide the case in accordance with the allegations of the complaint constituting a cause of action and supported by the evidence.

• Negligence of the Foreman: The Court found that Yoshio Tagashira, as the defendant's foreman, was charged with the vigilance and care of the workmen and materials. When he saw the log being carried away, he issued a threatening order that had the nature of a command. The foreman knew, or at least should have known from ordinary experience, that anyone who leaped into the water under those circumstances would run the risk of drowning, and that a man's life is worth very much more than a log. Notwithstanding these considerations, the foreman, without taking the necessary precautions to protect the life of his employee, issued the threatening order which prompted Lozano to leap into the water, thereby acting with serious negligence. The effects of such negligence rebound to the defendant as employer because the custody and conservation of the materials to be used in the work formed part of the general power of superintendence received by the superintendent from his employer under article 1712 of the Civil Code. In ordering recovery of the log, the foreman acted within the scope of said power, and the defendant, as principal, is responsible for the acts of his agents under article 1727 of the Civil Code.

• Contributory Negligence of the Employee: The Court held that to hold the employer responsible, it is not sufficient that the death was due to the negligence of a superintendent; it is also necessary that the deceased employee did not on his part exercise due care to avoid the accident. Lozano was a good swimmer and could swim across the Pasig River. Upon hearing the threatening order and seeing the current carrying the log away, he leaped into the water, confident in his ability as a swimmer and in the belief that his foreman, a more experienced and intelligent man, would not give the order if compliance did not involve risk. The thought of losing the log, the threat of having to pay for its value, and the fear of being dismissed if he did not obey the order must have greatly oppressed his mind and impelled him to leap into the water without time to consider the situation and exercise his free will. If due care and prudence are the result of calm reflection, and the foreman placed him in a situation where he had no time to use his reflective faculties, he cannot be blamed for acting as he did. Because it was the foreman who, by his negligence, caused Lozano to act in that manner, the foreman cannot allege in his defense that the latter failed to exercise due care, and neither can the employer invoke that defense because the effect of the foreman's negligence, committed within the scope of his authority, extends to him.

• Dependency of the Heir: The Court noted that the appealed judgment of the Court of Appeals contained no data on the dependency point, but the judgment of the Court of First Instance, affirmed in toto, showed that the plaintiff was married in second wedlock to Tomas Diaz, who had no permanent employment and did not earn enough for her and her children's support, and that her deceased son used to give her all his earnings. The Court held that the law does not require the legitimate heir to depend absolutely for support upon the salary of the deceased; it is sufficient that the heir somehow and to a certain extent depends upon said salary for support.

• Presumption of Employer Negligence — Under Act No. 2473, amending Act No. 1874, in all litigations instituted by a laborer or by his heirs under the provisions of Act No. 1874, neglect on the part of the employer shall constitute a presumption of law. This presumption makes it unnecessary to expressly allege the employer's or superintendent's negligence in the complaint, and the complaint is sufficient if it alleges facts showing the death occurred while the employee was at work.

• Employer's Liability for Superintendent's Negligence — An employer is civilly liable for personal injury or death caused to an employee by the negligence of a superintendent or foreman acting within the scope of his authority. The custody and conservation of materials to be used in the work form part of the general power of superintendence, and the employer, as principal, is responsible for the acts of his agents under articles 1712 and 1727 of the Civil Code.

• Contributory Negligence and Due Care — An employee who obeys a threatening order of a superior under circumstances giving no time for reflection is not guilty of contributory negligence barring recovery. If due care and prudence are the result of calm reflection, an employee placed in a situation where he had no time to use his reflective faculties cannot be blamed for acting under the psychological impulse of the moment. The employer cannot invoke the defense of the employee's failure to exercise due care when the foreman's negligence caused the employee to act as he did.

• Partial Dependency of Heirs — Section 2 of Act No. 1874 does not require that the legitimate heir's dependence upon the salary of the deceased employee be total; it is sufficient that the heir somehow and to a certain extent depends upon said salary for support.

• "Said order — which, coming from a superior and containing a threat had the nature of a command — was obeyed by Anastacio Lozano who, at that time was engaged in piling up logs." — This passage establishes that the foreman's threatening order constituted a command that the employee was compelled to obey, forming the basis for finding the foreman's negligence.

• "Notwithstanding these considerations, said foreman, without taking the necessary precautions tending to protect the life of his employee, who might obey his order, issued the threatening order which prompted Anastacio Lozano to leap into the water to recover the log then being carried away by the current, thereby acting with serious negligence." — This is the core finding of negligence against the foreman, which was imputed to the employer, and it articulates the standard of care required of a superintendent toward his laborers.

• "If due care and prudence are the result of a calm reflection, having been placed by the foreman in such a situation that he had no time to make use of his reflective faculties, he can not be blamed for acting as he did, in obeying the threatening order under the psychological impulse of the moment." — This passage defines the standard for determining contributory negligence of an employee who obeys a superior's order under exigent circumstances.

• "The law does not require the legitimate heir of the employee, who died as a result of the negligence of a person for whose acts the employer is liable, to depend absolutely for his or his children's support upon the salary of the deceased, it being sufficient that they somehow and to a certain extent depend upon said salary for support." — This passage establishes the partial dependency standard for heirs claiming indemnity under Act No. 1874.

• Cerezo vs. Atlantic, Gulf & Pacific Co., 33 Phil., 425 — Cited in Justice Laurel's concurring opinion to establish that Act No. 1874 was essentially a copy of the Massachusetts Employer's Liability Act, which was itself copied from the English statute, providing historical context for interpreting the statute's provisions on due care.

• Section 1, Clause 1, Act No. 1874 — The Court held the defendant not liable under this clause because the log was not a way, work, or machinery used in the construction but a mere material to be employed in the work, and it was not the thing that directly or indirectly caused Lozano's death.
• Section 1, Clause 2, Act No. 1874 — The Court held the defendant liable under this clause because the death was due to the negligence of the foreman, a person in the defendant's service entrusted with and exercising superintendence, and the deceased employee did not fail to exercise due care.
• Section 1, Act No. 2473 — This provision, amending Act No. 1874, established the legal presumption of neglect on the part of the employer in litigations instituted by a laborer or his heirs, making it unnecessary to allege the foreman's negligence in the complaint.
• Section 2, Act No. 1874 — This provision requires that the heir claimant was dependent upon the wages of the deceased employee for support at the time of death; the Court held that partial dependence is sufficient.
• Article 1712, Civil Code — The Court relied on this provision to hold that the custody and conservation of materials to be used in the work formed part of the general power of superintendence received by the foreman from his employer.
• Article 1727, Civil Code — The Court relied on this provision to hold the defendant, as principal, responsible for the acts of his agents committed within the scope of their authority.
• Section 109, Act No. 190 — The Court cited this procedural provision to hold that no amendment of the complaint was necessary because there was no variance between the allegations and the facts found.

Abad Santos, J., and Imperial, J., concurred in the majority opinion. Justice Laurel concurred in the result with separate reasoning, joined by Avanceña, C.J., and Diaz, J., who concurred in the result. Justice Concepcion also concurred with separate reasoning.

N/A — No dissenting opinions were rendered; the separate opinions of Justices Laurel and Concepcion were concurrences with alternative or additional reasoning.