Tamayo vs. Gsell

Act No. 1874, the Employers' Liability Act, was adopted from the Massachusetts statute and carries with it the Massachusetts/common-law measure of damages, so that an injured minor employee may recover damages for pain, suffering, and permanent injury even absent proof of diminished earning capacity; the employer is liable for the negligence of a superintendent who assigns a minor to dangerous, unfamiliar work without warning or instruction, and the defenses of assumption of risk and contributory negligence are limited by the master's non-delegable duty to warn and instruct.

Paciente Tamayo is the father of Braulio Tamayo, a minor employed at a match factory in Santa Ana, Manila owned and operated by Carlos Gsell. The dispute arises under Act No. 1874, the Employers' Liability Act, enacted June 19, 1908, and modeled on the Massachusetts Employers' Liability Act, which governs employer liability for personal injuries to employees. Act No. 1868, as amended by Act No. 2385, created the Bureau of Labor and authorized its attorney to bring suit gratuitously for laborers after a failed friendly settlement and upon a certificate of indigency. These statutes frame the questions of representation, liability, defenses, and damages.

Paciente Tamayo is the father of Braulio Tamayo, a minor whose exact age was unknown but who was believed by the trial court to be about eleven or twelve years old. Braulio was employed in a match factory situated in Santa Ana, Manila and owned by Carlos Gsell. Before the accident, the only work entrusted to Braulio was to pick over piles of wood from which strips used in the manufacture of match boxes were made and to select the best pieces for that purpose.

On March 13, 1914, Braulio met with an accident. Eugenio Murcia, one of the foremen in the factory, assigned Braulio to the machine of Arcadio Reyes only on the day of the accident, despite Braulio's persistent and manifest opposition to assist the machinist. His work was to recover strips used in the manufacture of match boxes from the machine and to clean out pieces of wood that stuck in the machine and obstructed its proper working. Braulio was not accustomed to that work and had no previous preparation or instruction. While essaying to clean the part of the machine where pieces of wood were stuck, he was caught by the knife of the machine; the little and ring fingers of his right hand were cut, and the ring finger was severed. He was taken to the General Hospital, where he received medical treatment until released.

The plaintiff complied with section 4 of Act No. 1874 by advising the employer, Gsell, of the accident. The trial court, despite conflicting testimony, gave credit to the witnesses for the plaintiff; the testimony of Eugenio Murcia, to whom the assignment was attributed, was not contradicted. Dr. Vasquez of the General Hospital testified that the child's finger was mashed and severed. Defense counsel also stated for the record that the right hand showed the severed finger was cut at the first joint and that the next finger bore a diagonal scar near its tip.

Geiser, superintendent of Gsell's factory, testified that Gsell paid the hospital bill and Braulio's regular salary of fifty cents a day during his absence; that after Braulio left the hospital, Geiser tried to get him to return to work at the same salary, but Braulio refused; and that Braulio could occupy any place in the factory which his age would permit, as his hand had been cured. The Court inferred that the injuries caused no diminution of Braulio's ability to perform his former work in the factory. On ownership, the plaintiff testified positively that Gsell owned the factory, and when another witness was asked who the owner was, defense counsel stated, "We do not dispute the ownership."

The trial court found that the accident arose because Braulio was assigned by Murcia to perform work to which he was not accustomed and did not understand, without any previous warning as to its dangers or instruction as to how to avoid injury. Murcia knew the kind of work assigned to each employee in relation to their ages and should not have suddenly ordered Braulio, considering his youth, to take the place of a workman on Arcadio Reyes' machine without first preparing him and giving him the necessary instruction. The Supreme Court found these findings supported by a fair preponderance of the evidence.

• Bureau of Labor Representation and Fees: Defendant-appellant Gsell argued that the trial court erred in permitting the attorney of the Bureau of Labor to conduct the case and in awarding him P25 fees; the Legislature, in conferring power on the Director of the Bureau of Labor to settle differences between employer and laborer and to avert strikes and lockouts, never intended to bring negligence cases resulting in personal injuries under the Director's jurisdiction.
• Ownership: Gsell argued that the trial court erred in finding that he owned the factory wherein Braulio was injured, and his brief asserted that there was no evidence in the record as to ownership.
• Negligence and Assignment: Gsell argued that the trial court erred in finding that the accident occurred because Braulio was assigned to work to which he was not accustomed and did not understand, without any previous warning as to the dangers or instructions as to how to do the work safely.
• Causation: Gsell argued that the trial court erred in finding that his negligence, or that of the persons for whom he was responsible, was the cause of the accident.
• Defenses: Gsell argued that the trial court erred in declining to sustain his defenses of contributory negligence and assumption of risks; he urged that no duty to warn or instruct was imposed because the danger of putting one's fingers under the knife was obvious, and that Braulio was not in the exercise of due care.
• Damages: Gsell argued that the trial court erred in awarding damages against him in the absence of a showing that the injuries in any way diminished Braulio Tamayo's earning capacity.

• Bureau of Labor Representation and Fees: Whether the trial court erred in permitting the attorney of the Bureau of Labor to conduct the case and in awarding him P25 fees.
• Ownership: Whether the trial court erred in finding that Carlos Gsell owned the factory wherein Braulio was injured.
• Negligence and Assignment: Whether the trial court erred in finding that the accident occurred because Braulio Tamayo was assigned to work to which he was not accustomed and did not understand, without previous warning or instruction.
• Causation: Whether the trial court erred in finding that the negligence of the defendant or of the persons for whom he was responsible was the cause of the accident.
• Defenses: Whether the trial court erred in declining to sustain the defenses of contributory negligence and assumption of risks.
• Damages: Whether the trial court erred in awarding damages against the defendant in the absence of a showing that the injuries diminished Braulio Tamayo's earning capacity.

• Bureau of Labor Representation and Fees: No. Act No. 1868, as amended by Act No. 2385, authorizes the Bureau of Labor attorney to bring suit gratuitously for laborers after a failed friendly settlement and upon a certificate of indigency, and the P25 attorney fees may be taxed against the defendant if the plaintiff succeeds.
• Ownership: No. Ownership was established by the plaintiff's positive testimony and by defense counsel's statement that ownership was not disputed.
• Negligence and Assignment: No. The trial court's finding was supported by a fair preponderance of the evidence; the foreman assigned a young, inexperienced employee to dangerous, unfamiliar work without warning or instruction.
• Causation: No. The foreman was exercising the controlling functions of a superintendent when he ordered Braulio to clean the machine, and the employer is liable under Act No. 1874 for the negligence of a person intrusted with superintendence.
• Defenses: No. Assumption of risk and contributory negligence are available under Act No. 1874 but are limited for minor employees, because the master has a non-delegable duty to warn and instruct them of dangers and the manner of doing the work.
• Damages: No. Act No. 1874 was copied from the Massachusetts Employers' Liability Act, and its measure of damages includes pain, suffering, and permanent injury, even without proof of diminished earning capacity.

• Bureau of Labor Representation and Fees: Act No. 1868, section 2, as amended by Act No. 2385, empowered the Director of the Bureau of Labor to aid laborers in securing indemnity for injuries resulting from accidents and authorized the Bureau's attorney to bring suit gratuitously for an employee too poor to employ private counsel after a friendly settlement failed. The statute required a certificate of indigency and provided that the court, in a judgment for the plaintiff, should order the defendant to pay P25 as costs of the Bureau attorney. The legislation did not create a new right of action; it merely supplied counsel for pauper employees and taxed part of the costs against a successful defendant. The Court found no violation of public policy and no transcendence of legislative power, especially because the plaintiffs were paupers and the scheme resembled the assignment of counsel to destitute parties under section 35 of the Code of Civil Procedure.
• Ownership: The plaintiff testified positively that Gsell owned the factory. When another witness was asked who the owner was, defense counsel stated, "We do not dispute the ownership." No other testimony was offered on the point, and the proceedings thereafter proceeded on the theory that ownership was not in question. The later assertion in Gsell's brief that there was no evidence of ownership was contradicted by the record.
• Negligence and Assignment: The trial court's findings were supported by a fair preponderance of the evidence. Braulio was about eleven or twelve years old, ignorant of machinery, and had previously done only the simplest work of selecting wood. Murcia, a foreman who knew the work assigned to employees in relation to their ages, ordered him against his persistent opposition to assist in cleaning the machine, without warning him of the danger or instructing him how to avoid injury. The machine was not defective, but the danger of putting one's finger under the knife was obvious only to a person with knowledge of the machine. The Supreme Court declined to reverse the trial court's findings on conflicting testimony, citing United States vs. Benitez and Lipia, 18 Phil. Rep., 513, 517, for the rule that an appellate court will not interfere with the trial court's assessment of witness credibility unless the record shows an overlooked or misinterpreted fact of weight.
• Causation: Murcia was one of the foremen employed in Gsell's factory. Under Act No. 1874, section 1, an employer is liable for personal injury caused by the negligence of a person in his service who was intrusted with and was exercising superintendence. Murcia was exercising the controlling functions of a superintendent when he ordered Braulio to assist in keeping the machine clean. If that act constituted negligence, Gsell was liable in damages for the injuries caused, because the foreman had the duty to warn and instruct Braulio as to the dangers of the work and how to perform it safely.
• Defenses: The common-law defenses of assumption of risk and contributory negligence were available under Act No. 1874, but they had limitations when interposed against minor or infant employees. The master or his superintendent was bound to warn and instruct such employees as to dangers the master knew or ought to know and had reason to believe the servant did not know and would not discover by reasonable care. That duty continued during employment and could not be delegated. The infant employee's capacity was the criterion of responsibility. Braulio was not engaged in the particular work for which he had been employed; he was ordered to do work outside the ordinary contract of employment and wholly disconnected from it. A child of his age and inexperience could not be expected to appreciate the danger or to disobey the order. The trial court therefore did not err in rejecting the defenses, consistent with Union Pacific Railroad Co. vs. Fort, 84 U.S., 553.
• Damages: The record did not show any diminution of Braulio's earning capacity, and under the Civil Code he could not recover for pain and suffering alone. However, Act No. 1874 was essentially a copy of the Massachusetts Employers' Liability Act, which in turn was copied from the English statute. 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 adopted with the construction given to it. The Act was remedial and was to be liberally construed in favor of employees. Its measure of damages was not limited to the Civil Code but followed the common-law rule, which included compensation for pain and suffering, permanent injury, and bodily disfigurement. The severing of Braulio's ring finger at the first joint caused pain, suffering, permanent injury, and slight disfigurement, and P400 was a reasonable award.

• Adoption of Statute with Settled 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 adopted with the construction so given. The Court applied this to Act No. 1874, holding that because it was copied from the Massachusetts Employers' Liability Act, the Massachusetts/common-law measure of damages, including pain, suffering, and permanent injury, was adopted with it.
• Employers' Liability Act — Measure of Damages — Act No. 1874 is remedial and liberally construed in favor of employees. Its measure of damages is not limited to the Civil Code; it includes pain and suffering, permanent injury, and bodily disfigurement, even absent proof of diminished earning capacity. The Court affirmed the P400 award on this basis.
• Master's Duty to Warn and Instruct Minor Employees — A master or superintendent must warn and instruct minor or inexperienced employees of dangers and the manner of doing work to avoid accidents. The duty is non-delegable and continues during employment. Assumption of risk and contributory negligence are limited for minors; their capacity is the criterion. The Court applied this to Braulio, about eleven or twelve, who was assigned to dangerous machinery without instruction.
• Employer Liability for Superintendent's Negligence — Under Act No. 1874, section 1, an employer is liable for personal injury caused by the negligence of a person intrusted with and exercising superintendence. The Court found foreman Murcia exercised controlling functions when ordering Braulio to clean the machine.
• Assumption of Risk vs. Contributory Negligence — Assumption of risk involves no fault and covers risks normally incident to the occupation; contributory negligence involves fault or breach of duty. Both are available under Act No. 1874 but limited for minors. The Court rejected both defenses.
• Appellate Deference on Credibility — An appellate court will not interfere with the trial court's findings on conflicting testimony and witness credibility unless the record shows an overlooked fact or misinterpreted circumstance of weight. The Court applied this to uphold the trial court's findings.
• Bureau of Labor Attorney for Indigent Laborers — Act No. 1868 as amended authorizes the Bureau of Labor attorney to bring suit gratuitously for laborers after a failed friendly settlement and upon a certificate of indigency; P25 attorney fees may be taxed against the defendant if the plaintiff succeeds. The Court upheld this scheme.

• "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." — This is the ratio for the damages holding: Act No. 1874 was treated as having imported the Massachusetts/common-law measure of damages.
• "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." — This states the non-delegable duty that defeated the defenses of assumption of risk and contributory negligence.
• "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." — This is the majority's canonical formulation of the damages rule under the Employers' Liability Act.
• "The infant employee's capacity is the criterion of his responsibility." — This defines the standard for evaluating a minor employee's assumption of risk and contributory negligence.

• United States vs. Benitez and Lipia, 18 Phil. Rep., 513, 517 — Quoted for the rule that an appellate court will not disturb the trial court's findings on conflicting testimony and witness credibility absent overlooked or misinterpreted facts of weight.
• Cerezo vs. Atlantic, Gulf & Pacific Co., 33 Phil. Rep., 425 — Cited for the principle that a statute adopted from another jurisdiction with settled construction is adopted with that construction, and for the recognition of contributory negligence under Act No. 1874.
• Ryalls vs. Mechanics' Mills, 150 Mass., 190; 5 L. R. A., 667 — Cited to show that the Massachusetts statute was copied from the English statute and should be construed in light of the English construction.
• Seaboard Air Line Railway vs. Horton, 233 U.S., 492, 503 — Quoted to distinguish assumption of risk from contributory negligence.
• Southern Ry. Co. vs. Crockett, 234 U.S., 725 — Cited for the rule that the Federal Employers' Liability Act left the defense of assumption of risk as at common law except in specified cases.
• Union Pacific Railroad Co. vs. Fort, 84 U.S., 553 — Cited as precedent holding an employer liable where a minor employee was ordered to perform work outside the scope of his employment and was injured.
• Saller vs. Friedman Brothers Shoe Co., 130 Mo. App., 712 — Cited for the rule that children are not expected to appreciate ordinary risks of machinery and do not assume risks they do not perceive and are not warned against.
• Coons vs. Pritchard, L. R. A., 1915 F, 558 — Cited for the employer's duty to instruct a minor employee fully, considering age, mentality, and lack of capacity and experience.
• Gagnon vs. Klauder-Weldon Dyeing Mach. Co., 174 Fed. Rep., 477 — Cited on damages for pain and permanent disfigurement, even where wages continued and no reduced wages were shown.
• Marcelo vs. Velasco, 11 Phil. Rep., 287; Algarra vs. Sandejas, 27 Phil. Rep., 284 — Cited by the majority for the proposition that under the Civil Code no recovery could be had for pain and suffering absent proof of diminished earning capacity.
• Dharamdas vs. Haroomall, 35 Phil. Rep., 183 — Cited in the dissenting opinion for the principle that a statute dealing exclusively with liability does not affect the law of damages.

• Act No. 1868, section 2, as amended by Act No. 2385 — Created the Bureau of Labor and authorized its attorney to bring suit gratuitously for laborers after a failed friendly settlement and upon a certificate of indigency; P25 attorney fees were taxable against the defendant if the plaintiff succeeded. Applied to uphold the Bureau attorney's representation and fee.
• Act No. 1874, section 1 — Employers' Liability Act; employer liable for personal injury to an employee in the exercise of due care caused by a defect in ways, works, or machinery, by the negligence of a person intrusted with superintendence, or by the negligence of a person in charge of a signal, switch, locomotive engine, or train. Applied to hold Gsell liable for foreman Murcia's negligence.
• Act No. 1874, section 3 — Set the maximum damages for personal injury not resulting in death at P2,000 and provided limits for death cases. Applied to affirm the P400 award within the statutory limit.
• Act No. 1874, section 4 — Required a report to the employer within ninety days and the action to be brought within one year from the accident. Plaintiff complied by advising the employer of the accident.
• Act No. 1874, section 8 — Barred an action if the employee knew of the defect or negligence causing the injury and failed within a reasonable time to inform the employer or a superior. Not applied to bar recovery because the facts did not show such knowledge and failure.
• Civil Code, article 1903 — Employer impliedly agrees to furnish competent workmen. Mentioned in the discussion of the master's duties.
• Code of Civil Procedure, section 35 — Authorized courts to assign counsel to render professional aid to a destitute party. Compared to the Bureau of Labor attorney scheme.

Trent, J., wrote the majority opinion; Torres, Carson, and Araullo, JJ., concurred.

• Moreland, J. — Dissented on the measure of damages. He disagreed with the majority's holding that Act No. 1874 imported the Massachusetts law of damages. He argued that the Act is an Employers' Liability Act, not a law of damages; it changes the principles of legal liability, not the measure of damages. The mere copying of the Massachusetts statute did not abrogate the Civil Code measure of damages. Under the Civil Code, no damages could be recovered for pain and suffering, and because Braulio proved no pecuniary damages, he could not recover. He criticized the majority for relying on the isolated word "damages" and for failing to cite any provision of the Act that introduced the Massachusetts law of damages. He cited Dharamdas vs. Haroomall, 35 Phil. Rep., 183, for the principle that a statute dealing exclusively with liability does not affect the law of damages. He did not pass on the other questions discussed by the majority.