1. DAMAGES; AUTOMOBILES; LIABILITY FOR FAULT OR NEGLIGENCE IN OPERATION. — Held: It being shown by the records that the death of the child Salvador Bona, of from 8 to 9 years of age, was the result of his having been run over by an automobile, through the fault and negligence of the defendant who managed and directed said vehicle, it follows that said defendant is liable for the great damage so caused, and should indemnify the plaintiff, mother of the deceased, who has thus prematurely lost a child and has been deprived of the aid and assistance, which, it is presumed, she would be entitled to in her old age, if said child should have lived to be a man. (Art. 1902 of the Civil Code.)

Per MALCOLM and FISHER, JJ., concurring:chanrob1es virtual 1aw library

2. DAMAGES; COMPARATIVE JURISPRUDENCE. — The Civil law jurisprudence as existing in Spain, France, Porto Rico and Louisiana, and the common law jurisprudence, on the subject of damages, investigated, compared, and discussed.

3. ID; DEATH; RIGHT OF ACTION. — Both because of the civil origin of the applicable law in the Philippines, because not fettered by the harsh common law rule on the subject, because it is the modern and more equitable principle, and because reason and natural justice are eloquent advocates, an action for damages can be maintained in this jurisdiction.

4. ID.; ID.; ID.; AMOUNT OF RECOVERY; PROOF. — Of whatever nature the damages be, and from whatever cause it may proceed, the person who has done the injury ought to repair it by an indemnity proportionate to his fault and to the loss caused thereby. (1 Cushing, Domat s Civil Law, p. 741.)

5. ID.; ID.; ID.; ID.; ID. — In order to give rise to the obligation imposed by article 1902 of the Civil Code, derived from Partida 7, Title 15, Law 3, the coincidence of two distinct requisites is necessary, viz: (1) That there exist an injury or damage not originating in acts or omissions of the prejudiced person himself, and its existence be duly proven by the person demanding indemnification therefor; (2) that said injury or damage be caused by the fault or negligence of a person other than the sufferer. (12 Manresa, Comentarios al Codigo Civil, p. 604.)

6. ID., ID.; ID.; ID.; ID. — Those seeking to recoup damages must ordinarily establish their pecuniary loss by satisfactory proof. Put in certain cases the law presumes a loss because of the impossibility of exact proof and computation in respect to the amount of the loss sustained. In other words, the loss can be proved either by evidence or by presumption. For instance, where the relation of husband and wife or parent and child exist, provided the child is shown to be a minor, the law presumes a pecuniary loss from the fact of death and it is not necessary to submit proof as to such loss.

7. ID.; ID.; ID.; ID.; ID. — The discretion of a jury, where there is a jury, or of the trial court, where the court possesses such faculty, in fixing the amount of damages, will not be interfered with by the appellate court unless this discretion has been palpably abused.

8. ID; ID.; ID.; ID.; ID. — Many American statutes have arbitrarily limited the amounts that could be recovered to $5,000 or $10,000. In Louisiana, $2,500, $3,000 $4,000 and $6,000 were allowed in the respective cases for the death of a child. In Porto Rico, $1,000 and $1,500 has been allowed for such a loss. In the Philippines, the rule has been in criminal cases to allow as a matter of course P1,000 as indemnity to the heirs of the deceased.

9. ID.; ID.; ID.; ID.; ID. — In certain cases, there is no doubt but what the damages could be greatly enhanced by showing the personal characteristics of the deceased.

10. ID.; ID.; ID; ID.; ID. — A male child, 8 or 9 years of age, was killed through the negligence of the defendant in driving his automobile. The mother of the dead boy is a widow, a poor washerwoman. She brings action against the defendant to recover damages for her loss in the amount of P5,000. Without there having been tendered any special proof of the amount of damage suffered, the trial court found the defendant responsible and condemned him to pay the plaintiff the sum of P1,000. Held: (1) That the plaintiff, having shown that the deceased was her son, 8 or 9 years of age at the time of death, it was neither necessary nor possible to prove loss of services or support, or to prove special damage; (2) that the amount in the nature of an indemnity allowed by the trial court is neither excessive nor immoderately inadequate, and should stand.

In this case which is brought for the recovery of the damages resulting from the death of the child Salvador Bona, of from 8 to 9 years of age, who had been run over by an automobile driven and managed by the defendant on the morning of March 5, 1916, a judgment was rendered on August 3, 1916, whereby the said defendant was sentenced to pay the sum of P1,000 as indemnity to the plaintiff, the mother of the deceased child, and to pay the costs. From this judgment, an appeal was taken by the defendant after his motion for a new trial had been overruled, and the case is now before this court by bill of exceptions.

The statement of facts is at once admitted, and we find no reason for disturbing the findings made by the trial judge in his judgment appealed from, wherein the defendant was found liable for the accident which occurred to the said child on Solana Street on the morning of said day, and consequently, the defendant, as the one who had caused the accident, is bound to indemnify the mother of the deceased child in the amount of P1,000, which was deemed by the trial judge to be the value of the damages occasioned to the mother for the loss and death of a member of her family.

To the reasons given by the trial judge as grounds for his decision, we deem pertinent to add the following:chanrob1es virtual 1aw library

If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his auto before crossing Real Street, because he had met vehicles which were going along the latter street or were coming from the opposite direction along Solana Street, it is to be believed that, when he again started to run his auto across said Real Street and to continue its way along Solana Street northward, he should have adjusted the speed of the auto which he was operating until he had fully crossed Real Street and had completely reached a clear way on Solana Street. But, as the child was run over by the auto precisely at the entrance of Solana Street, this accident could not have occurred, if the auto had been running at a slow speed, aside from the fact that the defendant, at the moment of crossing Real Street and entering Solana Street, in a northward direction, could have seen the child in the act of crossing the latter street from the sidewalk on the right to that on the left; and if the accident had occurred in such a way that after the automobile had run over the body of the child, and the child’s body had already been stretched out on the ground, the automobile still moved along a distance of about 2 meters, this circumstance shows the fact that the automobile entered Solana Street from Real Street, at a high speed without the defendant having blown the horn. If these precautions had been taken by the defendant, the deplorable accident which caused the death of the child would not have occurred.

In view of the foregoing considerations as well as those contained in the judgment of the trial court, which, we believe to be in accordance with law and the evidence of record, we believe that the errors assigned by the appellant are thereby refuted and that therefore the judgment appealed from, should be, as it hereby is, affirmed, with the costs against the appellant. So ordered.

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



MALCOLM, J., concurring:chanrob1es virtual 1aw library

The facts are few and simple. A male child, 8 or 9 years of age, was killed through the negligence of the defendant in driving his automobile. The mother of the dead boy is a widow, a poor washerwoman. She brings action against the defendant to recover damages for her loss in the amount of P5,000. Without there having been tendered any special proof of the amount of damages suffered, the trial court found the defendant responsible and condemned him to pay to plaintiff the sum of P1,000. The decision of this Court handed down by Justice Torres, affirms the judgment of the Court of First Instance. If necessary, the decision of the Supreme Court of Louisiana in the case of Burvant v. Wolfe ([1910], 126 La., 787), could be cited as corroborative authority.

The principles of law which measure the pecuniary responsibility of the defendant, not discussed in the main opinion, are more difficult. Since the time of Grotius and even before, lawyers and publicists have speculated as to whether the loss of a human life should be compensated in money, and if so, as to the amount which should be allowed.

At Common Law no civil action lies for damages caused by the death of a human being by the wrongful or negligent act of another. The maxim is actio personalis moritur cum persona. (Mobile Life Ins. Co. v. Brame [1878], 95 U. S., 754; Baker v. Bolton, 1 Campb., 493.) Two different modes of reasoning have arrived at this result. The first and older theory was the merger of the private right in the public wrong. (The E. B. Ward, Jr. [1883], 16 Fed., 255.) The second and younger theory was that the death of a human being cannot be complained of as a civil injury. Under the latter doctrine, it has been repeatedly held that a civil action by a parent for the death of a minor child cannot be maintained. (Kramer v. San Francisco Market Street R. Co. [1864], 25 Cal., 434; Jackson v. Pittsburg, C. C. & St. L. R. Co. [1894], 140 Ind., 241; Wilson v. Bumstead [1881], 12 Neb., 1; Sullivan v. Union P. R. Co. [1880], 2 Fed., 447; Osborn v. Gillett [1873], L. R. 8 Exch., 88; Weems v. Mathieson, 4 Macq. H. L. Cas. 215; Gulf, C. & S. F. Ry. Co. v. Beall [1897], 91 Tex., 310. See 41 L. R. A., 807, Note.)

By the Civil Law, particularly as existing in Spain, France, Porto Rico, and Louisiana, the true principle is somewhat beclouded. Thus, in Louisiana, a State favored by French and Spanish antecedents, the exact question of whether an action for damages caused by the homicide of a human being can be maintained, was presented by able counsel for the opinion of distinguished jurists. And it was held in a decision, later expressly affirmed, that, under the Civil Law, the action could not be maintained by the surviving wife or children. (Hubgh v. New Orleans & Carrollton R. R. Co. [1851], 6 La. Ann., 495; Hermann v. New Orleans & Carrollton R. R. Co. [1856], 11 La. Ann., 5; 24 Pothier Pandectes, p. 279; law 13; 7 Partida, title 15, law 3.)

The same question has arisen in Porto Rico. It has there been held that by the Civil Law in force in Porto Rico a civil action lies for negligence resulting in death. (Borrero v. Cia. Anonyma de la Luz Electriea de Ponce [1903], 1 Porto Rico Fed., 144; Diaz v. San Juan Light & Transit Co. [1911], 17 Porto Rico, 64.) The right to sue for death from negligence of a defendant, by persons entitled to support by the deceased has not been changed by the new Civil Code of Porto Rico. (Torres v. Ponce Railway & Light Co. [1903], 1 Porto Rico Fed., 476.)

In Spain, from which both the Civil Law of Porto Rico and the Philippines were derived, it has been decided that such an action could be maintained. (Decision of the supreme court of Spain of December 14, 1894.) In France, the highest court has interpreted the Code Napoleon as sanctioning actions by those damaged by the death of another against persons by whose fault the death happened. (Chavoix v. Enfants Duport [1853], 1 Journal du Palais 614; Rollond’s case, 19 Sirey, 269.)

That even in those jurisdictions in which the Common Law has force, the observance of the principle has been resisted, is disclosed by the action of Hawaii in holding that there can be a recovery for death by wrongful act. (The Schooner Robert Lewers Co. v. Kekauoha [1902], 114 Fed., 849.) That the impropriety of the judge-made rule was early disclosed, is shown by the numerous statutes, beginning with Lord Campbell’s Act, which were enacted to cover the deficiency by permitting of a right of action to recover damages for death caused by wrongful act. Even in Louisiana, a State partially governed by the Civil Law, because of a statute, an action will now lie for pecuniary and other damages caused by death. (McCubbin v. Hastings [1875], 27 La. Ann., 713.) And finally, that eminent authorities recognize liability in case of death by negligence is disclosed by the mere mention of such names as Grotius, Puffendorif, and Domat. For instance, Grotius in his Rights of War and Peace said:jgc:chanrobles.com.ph

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