Tamayo for the sum of P400, without costs, except P25 fees for the attorney of the Bureau
of Labor, the defendant
[No. 10765. December 22, 1916.]
PACIENTE TAMAYO, father of the minor, Braulio Tamayo, plaintiff and appellee, vs. CARLOS
GSELL, defendant and appellant.
1. 1.ATTORNEY, BUREAU OF LABOR; RIGHT TO REPRESENT INJURED EMPLOYEES IN
PERSONAL INJURY CASES; FEES TAXED AS COSTS.— Trial courts commit no error in
permitting the attorney of the Bureau of Labor to represent injured employees in personal injury
cases and in taxing the attorney's statutory fees as part of the costs against the defendant, if the
suits be successful, under a statute providing that the attorney shall bring suit gratuitously for
laborers or servants under certain circumstances, and providing further that the court shall tax the
at-, torney's fee or fees against the defendant or defendants if the suit or suits be successful.
1. 2.STATUTES; CONSTRUCTION AND OPERATION; EMPLOYERS' LIABILITY ACT.—When a
statute has been adopted from some other state or country and such statute has been previously
construed by the courts of such state or country, the statute is generally deemed to have been
adopted with the construction so given it. Act No. 1874 having been adopted from the
Massachusetts Act, which in turn (as well as similar statutes in some other states in the United
States) was adopted from the English Act, the decisions of the high courts in those jurisdictions,
construing and interpreting the Act, followed.
1. 3.ID.; ID.; ID.; MASTER'S DEFENSES.—The Act does not affect the doctrine of assumption of risks
and contributory negligence. It does abolish in part the fellow servant doctrine, that is to say, so far
as it relates to the negligence of superintendents.
1. 4.ID. ; ID. ; ID. ; ID.—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 instituted by or on behalf of minor or infant
employees.
1. 5.ID.; ID.; ID.; DUTY OF MASTER TO WARN MINOR OR INFANT EMPLOYEES.—The obligation
of warning is imposed mainly for the sake of the young, or in the case of adults, where there are
concealed defects. The instructions must be sufficient to enable the employee 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.
1. 6.ID.; ID.; ID.; ACTIONABLE NEGLIGENCE.—It is actionable negligence for an employer to place
at a dangerous machine an infant or a minor who lacks sufficient age and capacity to comprehend
and avoid the dangers of the employment. The infant employee's capacity is the criterion of his
responsibility.
1. 7.ID.; ID.; ID.; DAMAGES.—The measure of damages recoverable under Act No. 1874 is that of the
Anglo-American common law, which include damages for pecuniary loss, pain and suffering, and
permanent injuries.
1. 8.ID.; ID.; ID.; FACTS OF THE CASE.—The plaintiff's ward, a young, ignorant boy, was employed by
the defendant to do ordinary work in the performance of which he did not come into contact with
the machinery, and was without any previous warning or instructions and over the objections of the
ward, ordered to assist in cleaning a dangerous machine where his fingers were caught in the
machine, severing the ring finger at the first joint. Held: That defendant was guilty of negligence
and the award of P400 not excessive.
APPEAL from a judgment of the Court of First Instance of Manila. Del Rosario, J.
The facts are stated in the opinion of the court.
William A. Kincaid and Thomas L. Hartigan for appellant.
Modesto Joaquin for appellee.
TRENT, J.:
This is an action for damages against the def endant 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
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 Carlos Gsell is the owner of the f actory wherein Braulio Tamayo was injured.
3. In finding that the accident occurred because Braulto 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's 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 Commece 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 differences 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 provisions added to section 4 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 and 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 differences 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 poor 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 cases 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 from the Bureau of Labor
(Ann. Stat, 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, 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 statutes. Some States 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 party 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 the 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 this 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 f act 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 of 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 and 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
on the day of the accident, in spite of his persistent and manifest opposition to assist the machinist; his work was
to recover the 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
from 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 time 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 ring finger of his right hand was severed.
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, in spite 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 depend 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 faculties 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 circumstance 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.
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 it 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 diminution 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 work in the factory just as
well now as he could before the accident, or in other words, the injuries caused no diminution 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 factor, 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 his own age. He had been, up to within
a few hours 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 warnings 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
Employers' 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. 298 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 Massachusetts 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 Massachusets of 1902 shows that the former is
essentially "copy of the The first section of each is exactly same and, in as the questions under consideration
ncerned, there are no differences in the other sections two acts. pears from the official proceedings of the joint
comthat 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 in 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 that 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 cases brought under it. It does provide, however, that in those cases 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 death 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 questions
here involved for the purpose of ascertaining the intention of the Legislature, must we look to the Civil Code and
the decisions 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 con-structed 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 1885 (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 especially true when the statute, from which ours was copied had been construed prior to its
enactment by our legislature." (Birmingham 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 masters 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 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 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 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
who 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 respondeat
superior. Under the latter, a stranger invited upon the master's premises could recover for the injuries received
through the negligence of the employee. It was this right which was denied to the employee. 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 act 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 but 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 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 defenses 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 employee, 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 employee. The risks may be present, notwithstanding the
exercise of all reasonable care on his part. Some employments are necessarily fraught with danger to the
workman—danger that must be and is confronted in the line of his duty. Such dangers 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 out of the failure of the employer to
exercise due care with respect to providing a safe place of work and suitable and safe appliances for the work.
These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk
arising from it, unless defect and risk alike are so obvious that an ordinarily prudent person under the
circumstances 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 varied
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 Ind., 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 f or the saf ety 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 recognize 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, or, 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 Employer's Liability, sec. 99.)
The dangers of a particular position or mode of doing work are often apparent to a person of capacity or
knowledge of the subject, while others, from youth, inexperience, or want of capacity, may fail to appreciate 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 a minor servant for the
performance of dangerous Shearman and Redfield on Negligence (vol. 1, sec. ate the rule as follows: here a
servant is set at dangerous work, the mere fact 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 this 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 had
he 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. (Vanesler vs. Box Co., 108 Mo. App., 1. 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; Goff vs. Norfolk & W. R. Co. supra; 1 Shearm. & 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
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 employee 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. Pritchard, supra, lays down this rule:
"In employing a minor, the duty devolves upon the employer to fully instruct such employee as to the
dangers incident to the particular employment, 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 in 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 the piles of wood from which the Strips used in the manufacture 61 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. But 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 jury 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 judgment 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 interposed 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 shown, 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 into
account."
Shearman and Redfield on the Law of Negligence 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,
damage is a proximate result of the injury. . 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 rest largely, 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 recoverable where the injury results in death. The statute does not limit the amount
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 & Iron 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 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?
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 Iiability 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
CodeChaves and Garcia vs. Manila Electric R. R. & 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 fix 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 in
dicates, was to extend the liability of employers and to render them liable in damages for certain classes of per
sonal injuries for which they are not liable under the Civil Code. And one of these classes of cases is that where
injuries are caused 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 essencial
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 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
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 f ormer Act. To the same effect is the case of Devine vs. C. R. I. & R.
R. Co. (266 111., 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 black smith 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. Aermotor 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 f rom 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 butcher,
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 fingers 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 would a
person submit to such an injury, but 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 the 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.
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.
l 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 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 the 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 f rom 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 of 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 element 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 theref or.
(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 f
or 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 cogent and powerful reason should be assigned to support it. The court has neglected to refer to any Act
of the Philippine Legislature, to any statute, 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 but 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 from 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 elements of damage under the common law. The court quotes f rom 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 of real property. It must be said, therefore, that the whole discussion of the court
concerning the measure of damages at common law, 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 in 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 the Philippine law? Until that contention is shown correct beyond question, what good, I repeat, can
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 here what I have before intimated, 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 notes 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 be 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 the
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 in tended 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
applying 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 provisions ? 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 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 employer?' 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 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 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 inf erential
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 occurring 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 a ly word or
provision of the statute is imbiguous and needs interpretation pretation 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 or
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
defendants' superintendent negligent in, placing a child at work with dangerous ma.chinery? (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 the 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, 51
"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.1 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 on 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.
Judgment affirmed.