Torts Part3

[No. 9966. February 14, 1916.
]
TRINIDAD DE AYALA ET AL., plaintiffs and appellants, vs. ANTONIO
M. BARRETTO ET AL., defendants and appellees.
1.NUISANCES; ERECTION AND OPERATION OF A COMBINED
BREWERY AND ICE PLANT.One who settles in a district which has
a natural watercourse, especially beneficial for transportation
purposes, or who remains, while in the march of events his chosen
neighborhood, although at first largely residential, becomes a
trading or manufacturing center, must submit to the ordinary
annoyances and discomforts which are incidental to the reasonable
and general conduct of such business.
2.ID.; WHAT CONSTITUTES.Whether a lawful business is or will be
a nuisance is a question of fact to be determined under the
peculiar circumstances of each case.
3.ID.; INJUNCTION; WHEN GRANTED.The extraordinary remedy of
injunction to prevent or remove a nuisance will be granted only
where there is a strong case of pressing necessity and -not
because of a trifling discomfort.
4.ID.; ID.; SUFFICIENCY OF FACTS TO WARRANT ISSUANCE.The
facts in the instant case examined and found insufficient to justify
the issuance of an injunction to restrain the erection of the
manufacturing plant in question.
APPEAL from a judgment of the Court of First Instance of Manila.
Crossfield, J.
539
VOL. 33, FEBRUARY 14, 1916.
539
De Ayala vs. Barretto.
The f acts are stated in the opinion of the court.
D. R. Williams for appellants.
C. W. O'Brien for appellees.
TRENT, J.:
This is a suit for a permanent injunction against the erection and
operation of a combined brewery and ice plant on Calle General
Solano in the city of Manila, on the ground that it will be a
nuisance. From a judgment denying the relief prayed for, the
plaintiffs have appealed.
The twenty-two plaintiffs are either residents or property owners on
Calle General Solano, Twelve of them are actual residents of the
street and of these twelve, six are lessees of property owned by
other plaintiffs.
This street connects Echage and Aviles Streets. AIl three parallel
the Pasig River. Echage is almost wholly given over to industrial
enterprises, and Aviles also has some factories, etc., upon it,
including the San Miguel Brewery. This latter brewery is a long
established business, is adjacent to many residences, and is, in
fact, closer to some of the plaintiffs than is the proposed brewery.
General Solano has long been a fashionable residence street and
the dwellings located upon it are large and expensive. At the
present day, however, some of these residences are being used for
other purposes. There are now upon this street a coal yard, a
warehouse, and a cigarette factory, all very near the proposed
location of the def endant's brewery, and there are also a public
school and a club on the street Just across the river is located the
large power plant of the electric railroad and light company,
consuming about 50 tons of coal per day. To the north of this street
are located some sawmills and lumberyards and to the west,
across the river, are located large warehouses and a large tobacco
factory. The street is used by all kinds of freight vehicles and a
double street-car track traverses its entire length. Launches, tugs
and lighters are continually navigating the Pasig River, which lies to
the rear of the south side of the street. In 1914 the assessed
valuation of the
540
540
PHILIPPINE REPORTS ANNOTATED
property on the south side of the street was raised P2 per square
meter over that on the north side of the street because of its
increasing value for manufacturing and industrial enterprises.
There was testimony by one of the plaintiffs' witnesses, a real
estate expert, that in his opinion the whole of this space would
eventually be devoted to manufacturing and other business uses. It
is attractive for such purposes by reason of its transportation
facilities by both land and water.
Under these f acts we do not think that it can be said with entire
correctness that the street in question is a strictly residential
street. That it is not purely a residence street is clear, and that
there are numerous businesses near it in nearly every direction is
also clear. There is no doubt that the appropriateness of the locality
selected by the defendants as the site of their proposed plant must
have considerable bearing upon the question whether the plant will
create a nuisance. (Joyce on Nuisances, sections 95 et seq.) It
appears that the locality in question is gradually being transformed
from a f ashionable residence district into an industrial center. In

Eller vs. Koehler (68 Ohio, 51), it was said:
"All that can be required of men who engage in lawful business is
that they shall regard the fitness of locality. In the residence
sections of a city, business of no kind is desirable or welcome. On
the other hand, one who becomes a resident of a trading or
manufacturing neighborhood, or who remains, while in the march
of events a residence district gradually becomes a trading or
manufacturing neighborhood, should be held bound to submit to
the ordinary annoyances, discomforts and injuries which are fairly
incidental to the reasonable and general conduct of such business
in his chosen neighborhood. The true rule would be that any
discomfort or injury beyond this would be actionable; anything up
to that point would not be actionable."
In Stevens vs. Rockport Granite Co. (216 Mass., 486) it was said:
541
541
"The law of nuisance affords no rigid rule to be applied in all
instances. It is elastic. It undertakes to require only that which is
fair and reasonable under all circumstances. In a commonwealth
like this, which depends for its material prosperity so largely on the
continued growth and enlargement of manufacturing of diverse
varieties, 'extreme rights' cannot be enforced. One who settles in a
district, which possesses natural resources of a special kind, cannot
prohibit the development of those resources merely because it may
interfere in some degree with personal satisfaction or sthetic
enjoyment. No one can move into a quarter given over to foundries
and boiler shops and demand the quiet of a farm. On the other
hand, the noisy or noisome factory cannot with immunity invade
territory stamped by use for residence.
*
*
*
*
*
*
*
"The neighborhood in question is of a mixed character. It is
adjacent to the sea, with inlets upon a somewhat bold and rocky
shore. On this account it has become increasingly attractive for
summer residence. The plaintiffs and others near by, and more at a
greater distance, have estates for this purpose. Nature also has
planted valuable stone quarries in the vicinity, which have been
opened and worked, and are useful not only to their owners but
also in centres of population where they give beauty and strength
to public buildings. This circumstance renders apposite the words
of James, L. J., in Salvin vs. North Brancepeth Coal Co. (L. R. 9 Ch.,
705, 709). 'lf some picturesque haven opens its arms to invite the
commerce of the world, it is not for this court to forbid the
embrace, although the fruit of it should be the sights, and sounds,
and smells of a common seaport and shipbuilding town, which
would drive the Dryads and their masters from their ancient
solitudes.' " "
After a careful consideration of all the evidence of record, we have
come to the conclusion that the locality surrounding the site of the
proposed plant has not sufficiently the impress of a residential
district as to justify us in holding that the plant will be incongruous
with its sur542
542
roundings. This conclusion is made easier in view of the fact that
another brewery is in fact closer to several of the plaintiffs than
that of the defendants will be. The fact that this latter brewery is
not on the same street is immaterial. Distance is what counts in a
matter of this kind. Noise, smells, and smoke are no respecters of
streets.
Is there evidence of record that the proposed plant will be operated
so carelessly as to materially increase the noise, smells, and smoke
emanating therefrom? We think not. On the contrary, the evidence
is that a brewery, properly run, is not an unbearable neighbor and
that the defendants are installing modern machinery in every
respect. The evidence upon this point is as follows:
Dr. Stafford testified that the smoke would be very irritating, to say
the least, but admitted that he did not know how the proposed
plant was to be operated or the kind of machinery that would be
used.
Mr. Sellner testified that from his own observation of breweries
they were more or less noisy and emitted odors.
Mr. Zobel, one of the plaintiffs and a director and treasurer of the
San Miguel Brewery, testified that from his knowledge of that
brewery he would say that the machinery in the new brewery
would make more or less noise and that there would be smells. He
also admitted that he did not know what kind of machinery was to
be used by the new plant nor the height of the proposed
smokestack.
For the defense, Mr. Strong, a mechanical engineer, who was
furnishing the engines and boilers for the new plant, testified that if
properly set up they would produce practically no vibration.
Mr. Robinson, city engineer of the city of Manila, testified that

considering the height of the proposed smokestacks, the nearby
residents should not be materially disturbed by smoke, and that if
the machinery was properly set up there should be practically no
noise.
Mr. Duffy, chief engineer of the Government ice plant at Manila,
testified that he operated three 200-horsepower and one 100horsepower boilers, consuming approximately 28 to
543
VOL. 33, FEBRUARY 14,1916.
543
30 tons of coal per day, but when all the boilers, engines, and
machinery were in operation, there was no noise or jar discernible
outside the building. Considering the proposed machinery for the
new brewery, he was of the opinion that there should be absolutely
no noise or jar, and considering the height of the proposed
smokestack, no material annoyance from the smoke.
Mr. Liebenow, inspector of hulls and boilers, testified that if the
machinery was properly handled, there should be no noise or jar
except when the boilers were "blown out," and that there should be
very little smoke.
Dr. Newberne of the Philippine Health Service thought that, given
the height of the proposed smokestack, the smoke ought to be
carried away from the vicinity. From a sanitary standpoint the new
brewery would not interfere materially with the comfort or
enjoyment of nearby residents, although it might from an sthetic
standpoint. His department had never received any complaints
concerning the San Miguel Brewery.
Attorney Hamilton testified that while in Covington, Kentucky, he
used to pass daily a brewery several times larger than the San
Miguel Brewery and never noticed any noises or smells emanating
theref rom.
Mr. Van Hoven, claim agent of the Manila Electric Railroad & Light
Company, testified that his company consumed about 50 tons of
coal per day, and that their smokestack was 172 feet high. They
had never received any complaints from the hospital, occupying
the island in the river about 600 feet distant, nor from the
residents on General Solano.
Mr. Whelan, the engineer in charge of transferring the machinery of
the new brewery from Hongkong to Manila, testified that the
machinery was in a condition so that when in operation there
would be no noise or jar. The smokestack was to be so high that
there would be no smoke nuisance. The washing of bottles would

be done inside a case and could not be heard ten feet away. The
handling of barrels and coperage work would not cause any more
noise than the handling of any other kind of cargo.
544
544
Mr. Barreto, director and secretary of the new brewery company,
who had originally constructed the San Miguel Brewery, testified
that the cookers, vats, etc., were to be inclosed so that no fumes
could escape except through vent pipes in the roof. When he
constructed the San Miguel Brewery, located on Calle Aviles, some
distance from the new brewery, no complaints were made.
Mr. Schneider, brewmaster of the San Miguel Brewery, a witness for
the plaintiffs, testified in rebuttal that the cleaning of bottles
always made noise, as well as the coperage work on the kegs.
The smell of boiling beer was not disagreeable to him, but it might
be to others who were not accustomed to it. Since the fumes
thrown off from a brewery are heavier than air, they always settle,
and so it would not matter if they were forced out through the roof.
A Mr. and Mrs. Schultz and a Dr. Burke had complained to him
about the smoke, noise, and smells from the San Miguel Brewery.
The former lived in front of the brewery across the street and the
latter lived alongside of it. He had been brewmaster of the San
Miguel Brewery for the past ten years.
Mrs. Schultz, for the plaintiffs, testified that while living opposite
the San Miguel Brewery she had noticed noises and smells
emanating from the brewery and that her husband had complained
to the brewery people twice, telling them that it was very noisy and
dirty. They lived there in front of the brewery for two years. It was a
very nice house and the brewery did not interfere with them
particularly.
Mr. Calvo lives in front of the brewery on the opposite side of the
street. He himself was never disturbed by the brewery, but they
noticed the noises and smells coming from the brewery. It was
sometimes necessary to cover the meals to avoid the soot f rom
the smokestacks.
While the testimony of Mr. Schneider, the brewmaster of the San
Miguel Brewery, is to the effect that fumes from the beer making
will settle to the ground, he does not say what their intensity is.
That they could not be
545

545
United States vs. Soy Chuy.
great would seem apparent from the fact that this witness recalled
only two complaints that he had received from nearby residents of
the San Miguel Brewery during his ten years' employment there.
Again, Mrs. Schultz and Mr. Calvo emphasized the noise rather than
the smells, and it seems from the testimony of Mr. Whelan that the
noise of the bottle washing, at least, will not be perceptible outside
the building by reason of this work being done inside a case.
Hence, the testimony of Mr. Schneider that the noise of the bottle
washing could be heard outside the building evidently was based
upon the conditions obtaining in the plant where he is employed.
For the defense, there is evidence of engineers and others that
there will be no noise, vibrations, or smells, and but little, if any,
smoke, which will materially affect nearby residents. We think that
the preponderating weight of the evidence is to the effect that the
new brewery will be operated with a minimum of offense to nearby
residents, and that in view of the semiindustrial character of the
locality, what noise, etc., is produced, cannot be held to be
unreasonable.
It is possible that plaintiffs, or some of them, might prove damages
by reason of property depreciation. But at all events, this is not a
proper case f or the issuance of the extraordinary remedy of
injunction.
The judgment appealed from is affirmed, with costs against the
appellants. So ordered.
Johnson, Carson, Moreland, and Araullo, JJ., concur.
Judgment affirmed; writ denied. De Ayala vs. Barretto., 33 Phil. 538,
No. 9966 February 14, 1916
SAN RAFAEL HOMEOWNERS ASSOCIATION,INC.and JACINTO C.

petitioners-appellants, vs. THE
ERESTAIN,FERNANDO
MANALASTAS
ERNANDO
MANALASTAS
and
JOSE
F.
SUGAY,
respondents-appellees.
Municipal
Corporations; City
of
Manila; Local
Autonomy
Act;Certification as to availability of funds and submission of

samples to the Institute of Science not required in public bidding
for construction of garbage disposal plant.It should be noted that
the requirement as to the City Treasurers certification refers to
contracts entered into or about to be entered into by the local
government while the submission of samples to the Institute of
Science or to the testing laboratories refers to equipment and
materials purchased. In this case, no such contract is yet involved
and no purchase of equipment contemplated. The act complained
of is merely the scheduled bidding, from which an award may or
may not result.
Same; Same; Ordinances; Case at bar, choice of one system
of garbage and refuse disposal not a violation of ordinance
providing for either of two systems.Ordinance No. 5274 is worded
comprehensively enough to cover various systems of garbage and
refuse disposal, whether by composting or by incineration. The fact
that the bidding was limited to the second method, because in the
concern to the petitioners herein who are not themselves bidders,
Nos. L-26833 & L-26834. July 28, 1972.
J.
ERESTAIN,
one, does not violate the said ordinance and is certainly of no
San Rafael Homeowners Association, Inc. vs. City of Manila
MANILA,HON.ANTONIO
MANILA,HON.ANTONIO J. VILLEGAS, MANUEL CUDIAMAT, JOSE
opinion of the city authorities it was the more efficient and suitable
SUPREME COURT REPORTS ANNOTATED
LEAO,
LOPEZ and DR.TOMAS JOSEF,petioners-appellants, vs. THE CITY OF
VILLEGAS,MANUEL
and
CITY
OF
CUDIAMAT,
JOSE
F.
JOSE
SUGAY,
respondents-appellees. BALUT WOMENS CLUB, INC., DR.SEVERINO
except insofar as the operation of an incinerator may give rise to a

nuisance which should be prevented.
Same; Same; Local Autonomy Act; City engineer to submit
specifications for bidding.The City Charter of Manila provides in
its section 31 that the City Engineer, not the Bureau of Public
Works, is the one who shall prepare and submit specifications for
city public works projects. Indeed, under the Local Autonomy Act
was again published in the Official Gazette dated 1 August 1966. In
(Sec. 3), cities are authorized to undertake public works projects
this notice it was announced that should there be another
financed by city funds without the intervention of the Department
postponement, no further publication in the Official Gazette will be
of Public Works and Communications.
made (and that) interested parties are requested to watch local
41
dailies for any announcement of postponement. The resetting of
VOL. 46 JULY 28, 1972
41
the bidding to another date, 15 November 1966, with notice
published in a local daily only was substantial compliance with the
Civil Law; Nuisance; Remedial law; Actions; Action to avoid
requisites of publication.
possible nuisance when prenuture.It is entirely pointless to go
Same; Same; Ordinances; Actions; When suit questioning the
into an academic discussion of the relative merits of the
ability of prospective bidders to meet requirements of an
composting and the incineration methods of garbage and refuse
ordinance not proper.--The argument that since all the six bids
disposal for purposes of deciding whether or not at this stage
originally submitted, one of which precisely offered an incinerator
prohibition should issue to stop the bidding called for by the
with thermal power generator, were rejected on the ground that
respondents. The instant petitions for that purpose are premature.
none of them qould be self-liquidating as required by Ordinance No.
The Supreme Court will not substitute its judgment for the City
5274, the only conclusion that can be derived is that none of the
officials even before the bidding is begun and on a purely
bids
theoretical basis, rule that the bids submitted should not be
requirement, is untenable. In the first place the argument would be
opened, or if opened should not be accepted, because not one of
more proper for prospective bidders who might have been denied
the plants therein offered to be established would serve the
the chance to bid, but not for the herein petitioners, who have no
purpose envisaged and because, if so established, it would so
interest in the bidding per se or in whether or not the plant to be
pollute the environment as to constitute a nuisance. If and when
established will pay for itself. In the second place it ig again
such a result becomes a reality, or at least an imminent threat,
premature to speculate on this particular aspect of the bids.
corporations; City
of
Manila,; Administrative
were
submitted
subsequently
will
satisfy
the
42
that will be the time the petitioners may come to court.

Municipal
which
42
law; When postponement of public bidding still valid though not
pubUshed in the Official Gazette.The invitation to bid dated 4
APPEAL from the decision of the Court of First Instance of Manila.
June 1966 fixed the deadline for the submission of sealed bids on
25 July 1966. The notice was published in the Official Gazette
which, it is now averred, came out on that very day, 25 July.
However, it appears that at the instance of one of the bidders the
bidding deadline was moved to 19 August 1966, and notice thereof
Bocar, J.
The facts are stated in the opinion of the Court.
Francisco
Carreon
&
Renato
E.
Taada for
appellant San Rafael Homeowners Association, Inc.
petitioner-
Antonio
F.
Navarrete for
petitioners-appellants
Balut
Womens Club, Inc., etc., et al.

Ordinance No. 5274 was enacted, authorizing the establishment,
S. M. Artiaga, Jr., B. Dayaw & A. T. Boquiren for respondentsappellees.
equipping and construction of a garbage and refuse disposal

plant. . . and appropriating the sum of P15,000,000.00 for that
Alejandro De Santos as amicus curiae.
purpose. The ordinance provided, inter alia, that the city shall
operate and manage the plant on a self-liquidating basis, and
MAKALINTAL, J.:
upon the signing of the contract for its construction shall provide a
Civil Case No. 65992 and Civil Case No. 66179the first for
prohibition
with
preliminary
injunction
and
the
second
for
prohibition and mandamus with preliminary injunctionwere filed

in the Court of First Instance of Manila by the San Rafael
Homeowners Association, Inc. and Jacinto C. Leao, and by the
Balut Womens Club, Dr. Severino Lopez and Dr. Tomas Josef,
respectively. The respondents were the City of Manila and the
members of the citys Committee on Awards, namely, then City
Mayor Antonio J. Villegas, City Treasurer Manuel Cudiamat, City
Auditor Jose Erestain and two other city officialsFernando Manalastas and Jose F. Sugay. The petitioners sought to restrain the
respondents from conducting a public bidding for the construction
and establishment of an incinerator-thermal plant as a system of
garbage and refuse disposal in the City of Manila.
The two cases were heard jointly, and from the decision of the
court a quo dismissing them the petitioners brought the instant
appeal.
The records show that since 1955 the City of Manila had been
conducting studies on the problem of garbage and refuse disposal.
In 1961 a pilot composting plant was in operation at the North
Harbor. On 15 November 1965 City.
sea near Balut Island at the North Bay Boulevard; and that the
contractor (bidder), prior lo receiving the necessary specifications,
shall indicate the country of origin and experience (sic) of the
equipment to be used in his proposal ... (and) shall list the type,
size, make and condition of the machines and other equipment
that will be used in setting up the garbage and refuse disposal
plant.7
On 2 February 1966, pursuant to Ordinance No. 5274 the City of
Manila advertised for and received bids for the construction of the
plant in accordance with specifications previously prepared by the
respondents. Six bids were received: four firms offered to construct
a compost plant, one firm offered to put up an incinerator with a
thermal power station to generate electricity, and another offered
a combined compost and incinerating plant. The acting City Public
Service Officer, Fernando Manalastas, recommended approval of
the bid for an incinerator with thermal power station. In an
independent
evaluation
made
by
the
National
Science
Development Board at the request of the Mayor, it found all six

bids deficient and submitted the following recommendation:
1. 1.Of the six (6) bidders, ACFC and VVDC should be rejected
43
VOL. 46, JULY 28 1972
site of five hectares in the area which had been reclaimed from the
43
because their offers are above the P15 million amount

authorized by the City. This would leave three (3) bidders
offering a composting plant and one (1) bidder offering an
distribution system utilizing an available power of 4,800 KW from
incineration-thermal power plant.
the proposed incinerating plant at Isla de Balut by feeding the

different City Government buildings and street lights within a
2. 2.Considering
only
the
technical
and
administration
radius of one (1) mile from the proposed plant.
aspects, of the remaining four (4) bids, there is hardly any
On 19 May 1966, however, the Committee on Awards decided
choice to be made among them. However, with the health
to reject all the bids on the ground that none of them complied
and sanitary aspects considered, the choice points only to
with the requirement in the ordinance that the garbage and refuse
the incineration-thermal power station.
disposal plant should be capable of being operated on a selfliquidating basis. A motion for reconsideration filed by the compost
44
44
plant bidders was denied on 6 June 1966.

New specifications were drawn up under date of 24 May 1966,

Paragraph l.o.o. defined the term Garbage and Refuse Disposal
Plant to mean pollution-free incinerator plant complete with
1. 3.Moreover, considering the marketability of the product,
accessories and all other auxiliaries that may render it a self-
compost is in no position to compete with electricity
liquidating project, and subject to certain additional terms and
especially insofar as the needs of the City Government of
conditions
Manila are concerned. Certainly, the City would have a
conditions were: (1) that bidders should submit detailed plans of
very limited use if at all of the compost product, whereas
the plant facilities, accessories, auxiliaries and equipment; (2) that
it can use all the electricity generated by the plant.
the bidders should submit estimates of the gross and net proceeds
thereinafter
specified.
Among
those
terms
and
to
2. 4.Taking into account what is best for the City of Manila, in
45
the long run, the most advantageous offer would boil
VOL. 46, JULY 28, 1972
down to an incineration plant with thermal power station.
The Committee on Awards held hearings from 12 April to 9 May

1966 in order to study and evaluate for itself the various bids
submitted. Apparently the committee was inclined in favor of the
incinerator-thermal plant system, because on 13 May 1966 the
Chief of the Fire Department submitted a report to the Mayor in
compliance with the latters order to make a study on how much it
will cost the City to put up its own electrical transmission and
45
be realized by the plant and its products; (3) that the incinerator
plant shall provide maximum sanitary and health safeguards and
must be able to prevent the exposure of disease and other health
hazards of the people within the plant area and its vicinity ... in
short, among other things, (that) the incinerator plant must be
pollution-free1 and
never
be
nuisance.
More
detailed
specifications were provided with respect to: (a) the garbage and
refuse receiving and feeding equipment; (b) the incinerator
furnace; (c) the incinerating equipment itself; (d) the accessories
Since both cases involved identical facts and issues they were
and auxiliaries of the incinerating equipment for each furnace; (e)
consolidated on 30 July 1966, on motion of the respondents. No
the ash handling plant; and (f) the air pollution control equipment.
formal trial was held and in lieu of oral evidence the parties
With respect to this last item, the specifications did not call for any
submitted documents, citations of authorities and expert opinions,
specific type, brand or capacity of equipment, but simply provided
and depositions to support their respective sides, in addition to the
that it should be a complete air pollution control equipment to
usual memoranda.
clean the flue gases of dust and pollutant gases . . .(with) sufficient
A joint decision was promulgated by the lower court on 5
capacity and high efficiency to control air pollution in accordance
November 1966, denying the writs prayed for and dismissing both
with the standards of the Model Smoke Law of the American
petitions.
Society of Mechanical Engineers.
Subsequently the respondents caused the publication in the
The specifications were approved by the Awards Committee on
Manila Chronicle issue of 10 November 1966 of a Notice for
2 June 1966, and an Invitation to Bid was published in the Official
Resetting of the Date for Rebirfding to 15 November 1966. The
Gazette, Volume 62, No. 30, dated 25 July 1966. It appears,
petitioners moved in the lower court for the issuance of a writ of
however, that the deadline for the submission and opening of bids
preliminary injunction, but the motion was denied because their
called for in the publication was also 25 July 1966.
appeal to this Court had by then been perfected.
On 5 July 1966 Civil Case No. 65992 (L-26833 in this appeal)
A motion for preliminary injunction pending appeal was then
was filed. A restraining order to stop the scheduled bidding was
filed in this Court. Forthwith, on 15 November 1966, a temporary
issued ex parte by the Court of First Instance on the same day, but
restraining order was issued to enjoin the bidding scheduled on
was subsequently lifted after a hearing on 12 July 1966, when the
that same date.
prayer for a writ of preliminary injunction was denied. The bidding
In their brief the petitioners cite numerous errors in the decision
was then postponed to 19 August 1966 and notice thereof, dated
of the lower court. The main points, however, are that the
25 July 1966, was published anew in the Official Gazette, Volume
advertised bidding for an incinerator was in excess of the
62, No. 31, 1 August 1966.
respondents authority because an incinerator is a nuisance per
On 22 July 1966 the second case, Civil Case No. 66179 (L-26834
se and because its establishment would violate Ordinance No.
in this appeal), was commenced, and again a restraining order was
5274, the City Charter of Manila, the Revised Administrative Code,
issued ex parte by the trial court, and was not lifted until its
and the Local Autonomy Act.
decision was rendered.

46
46
1.
Reference
is
made
to
Section
607
of
the
Revised
Administrative Code, which says that the City Treasurer must

San Rafael Homeowners Association, Inc vs. City of Manila
certify that funds have been duly appropriated for the proposed
contract; and to the provision in the Local Autonomy Act that
samples should first be forwarded to the Institute of Science and
Technology and/or Materials Testing Laboratories of the Bureau of
authorities it was the more efficient and suitable one, does not
Public Highways for analysis, and that purchases of equipment
violate the said ordinance and is certainly of no concern to the
should be made on the basis of specifications made by the Bureau
petitioners herein who are not themselves bidders, except insofar
of Public Works. It should be noted that the requirement as to
as the operation of an incinerator may give rise to a nuisance
47
which should be prevented.
VOL. 46 JULY 28, 1972
47
This, indeed, is the only issue which the interest of the
petitioners entitle them to raise and which they do so with copious
the City Treasurers certification refers to contracts entered into or
citations of authorities. The main thrust of their argument is that
about to be entered into by the local government, while the
composting is better than incineration as a method of garbage and
submission of samples to the Institute of Science or to the testing
refuse disposal and that incineration will prove to be a nuisance.
laboratories refers to equipment and materials purchased. In this
Arrayed on the side of

48
case, no such contract is yet involved and no purchase of

equipment Contemplated. The act complained of is merely the
48
scheduled bidding, from which an award may or may not result.
Moreover, Ordinance No. 5274 does appropriate the amount of
the respondents, however, are equally impressive authorities to the
P15,000,000 out of any unappropriated funds, balances of
contrary. What we gather from a reading of the conflicting
dormani projects and other savings existing in the City Treasure not
citations, from court decisions in the United States, from journals
otherwise appropriated. Not only that, but the same ordinance
and other publications on the subject, and from reports and
also authorize the City Mayor, in ease funds are not available in the
opinions of experts, is that the trend in many progressive countries
City Treasury, to borrow from banks or other lending institutions.
is toward the incineration method. Its efficiency, it appears to us,
And with respect to the other point, the City Charter of Manila
depends to a decisive degree upon the adequacy of the equipment
provides in its section 31 that the City Engineer, not the Bureau of
and measures employed. The very authorities relied upon by the
Public
petitioners bear this out, such as, for instance, the following:
Works,
is
the
one
who
shall
prepare
and
submit
specifications for city public works projects. Indeed, under Ihe local
x x x if there will be no adequate measures that will be
Autonomy Act (Sec 3 ) , cities are authorized to undertake pub-l i c
incorporated in the incinerator, there will be pollution and the
works projects financed by city funds without the intervention of
pollutant will be great considering that the volume of garbage and
the Department of Public Works and Communications.
refuse collected everyday amounts to several hundreds of tens per
2. Ordinance No. 5274 is worded comprehensively enough to
day x x x. (Opinion of Dr. Jesus Almonte, Chief of the Division of
cover various systems of garbage and refuse disposal, whether by
Industrial Hygiene of the Bureau of Health Services and Assistant
composting or by incineration. The fact that the bidding was
Professor in Preventive Medicine at the University of Sto. Tomas,
limited to the second method, because in the opinion of the city
page 8 of Petitioners Brief)
The lack of a secondary combustion chamber and additional
3. Section 32 of the Charter of the City of Manila (R.A. No. 409)
air into it(the proposed incinerator) means very incomplete
provides that public works and improvements involving a cost of
combustion
carbon
P3,000.00 or more shall be awarded to the lowest responsible
monoxide, sulfur dioxide, hydro carbons, etc. belching into the
bidder after public advertisement in the Official Gazette for not less
atmosphere to the detriment of property and health of citizens.
than ten days. The invitation to bid dated 4 June 1966 fixed the
(Opinion of Dr. John Snell, page 13 of Petitioners Brief)
deadline for the submission of sealed bids on 25 July 1966. The
It is, to our mind, entirely pointless to go into an academic
notice was published in the Official Gazette which, it is now
discussion of the relative merits of the composting and the
averred, came out on that very day, 25 July. However, it appears
incineration methods of garbage and refuse disposal for purposes
that at the instance of one of the bidders the bidding deadline was
of deciding whether or not at this stage prohibition should issue to
moved to 19 August 1966, and notice thereof was again published
stop the bidding called for by the respondents. The instant
in the Official Gazette dated 1 August 1966. In this notice it was
petitions for that purpose are premature. Certainly this Court
announced that should there be another postponement, no
cannot and should not substitute its judgment this early for that of
further publication in the Official Gazette will be made (and that)
the respondents, and on a purely theoretical basis rule that the
interested parties are requested to watch local dailies for any
bids submitted should not be opened, or if opened should not be
announcement of postponement.
with
dangerous
noxious
gases
such
as
accepted, because not one of the plants therein offered to be
Further postponement of the bidding was caused by the filing of
established would serve the purpose envisaged and because, if so
these two suits in the lower court; and so after its decision was
established, it would so pollute the environment as to constitute a
promulgated on 5 November 1966 the date of the bidding was
nuisance. If and when such a result becomes a reality, or at least
reset, and pursuant to the advertence made in the second
an imminent threat, that will be the time the petitioners may come
publication in the Official Gazette the corresponding notice was
to court. That they
published in the Manila Chronicle of 10 November 1966, fixing a
49
VOL. 46, JULY 28, 1972
new deadline, namely, 15 November 1966.

49
The circumstances related above disclose that there was
substantial compliance with the requisites of publication. Indeed
are not successful now will not preclude them from doing so,
none of the participating bidders, nor any one alleging to be a
because a continuing nuisance calls for a continuing remedy. It is
prospective bidder, has questioned the manner in which the
even a possibility that none of the bids submitted to the
notices were published. And as far as the

50
respondents will be accepted for failure to come up to the

standards required by the specifications. And should an award be
50
made notwithstanding such failure, demonstrable in court, then a
suit for prohibition would be proper.
herein petitioners are concerned their interest are in no way
since there are different methods of effective pollution control, as
affected thereby.
to which the plans are left to the bidders themselves, so that from
4. The next issue raised by the petitioners is that an incinerator

with thermal power plant for garbage and refuse disposal in the
the different plans submitted the respondents may make

51
City of Manila cannot be operated on a self-liquidating basis, as
VOL. 46, JULY 28, 1972
required by Ordinance No. 5274. The argument is that since all the
Nuisance
six bids originally submitted, one of which precisely offered an
the choice. For this purpose it may be noted that the specifications
incinerator with thermal power generator, were rejected on the
require that the incinerator be equipped with complete air pollution
ground that none of them could be self-liquidating, the only
control facilities, of a sufficient capacity and efficiency to meet the
conclusion that can be derived is that none of the bids which were
standards of the Model Smoke Law of the American Society of
submitted subsequently will satisfy the requirement.
Mechanical Engineers, as well as with all other auxiliaries or
In the first place the argument would be more proper for

prospective bidders who might have been denied the chance to
bid, but not for the herein petitioners, who have no interest in the
51
additional plant facilities that will render the plant offered selfliquidating.
With
respect
to
the
incinerating
equipment
itself,
the
biddingper se or in whether or not the plant to be established will
specifications are quite precise and definite as to details as may be
pay for itself. In the second place it is again premature to speculate
noted in paragraph lo.l.o thereof.
on this particular aspect of the bids. As pointed out by the
WHEREFORE, We find the present appeal to be without merit,
respondents, they precisely called for new bids in order to find out
and hereby affirm the judgment of the court a quo, with costs
if any incinerator with a thermal power plant can be offered which
against the petitioners-appellants.
can be operated on a self-liquidating basis. If after the bids are
Concepcion,
C.J., Reyes,
opened it is found that none of them satisfies this requirement,
J.B.L., Zaldivar, Castro,Fernando, Barredo, Makasiar and Esguerra,
obviously all of them will be rejected; and if despite such deficiency
JJ., concur.
a particular bid is accepted then the corresponding suit to stop the

award can be brought by the proper parties.
Teehankee and Antonio, JJ., took no part.

Judgment affirmed.
The petitioners claim that the specifications prepared by the

respondents, particularly with respect to anti-pollution devices, are
so broad as to preclude competitive bidding. Again this is an
argument that is proper for bidders to make, but not for the
Republic
SUPREME
Manila
petitioners, to whom this aspect of the bidding is a matter of

indifference. But in the very nature of things the specifications
could hardly have been more definite and precise as to details,
EN BANC
of
the
Philippines
COURT
G.R. No. L-30642 April 30, 1985

PERFECTO S. FLORESCA, in his own behalf and on behalf of
the minors ROMULO and NESTOR S. FLORESCA; and
ERLINDA FLORESCA-GABUYO, PEDRO S. FLORESCA, JR.,
CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S.
FLORESCA and CARMEN S. FLORESCA;
LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and
on behalf of her minor children LINDA, ROMEO, ANTONIO
JEAN and ELY, all surnamed Martinez; and DANIEL MARTINEZ
and TOMAS MARTINEZ;
SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and
on behalf of her minor children JOSE, ESTELA, JULITA SALUD
and DANILO, all surnamed OBRA;
LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and
on behalf of her minor children EDNA, GEORGE and LARRY
III, all surnamed VILLAR;
DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf
and on behalf of her minor children EDITHA, ELIZABETH,
DIVINA, RAYMUNDO, NESTOR and AURELIO, JR. all
surnamed LANUZA;
EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on
behalf of her minor children JOSE, LORENZO, JR., MARIA,
VENUS
and
FELIX,
all
surnamed
ISLA, petitioners,
vs.
PHILEX MINING CORPORATION and HON. JESUS P. MORFE,
Presiding Judge of Branch XIII, Court of First Instance of
Manila, respondents.
Rodolfo C. Pacampara for petitioners.
Tito M. Villaluna for respondents.
MAKASIAR, J.:
This is a petition to review the order of the former Court of First

Instance of Manila, Branch XIII, dated December 16, 1968
dismissing petitioners' complaint for damages on the ground of
lack of jurisdiction.
Petitioners are the heirs of the deceased employees of Philex
Mining Corporation (hereinafter referred to as Philex), who, while
working at its copper mines underground operations at Tuba,
Benguet on June 28, 1967, died as a result of the cave-in that
buried them in the tunnels of the mine. Specifically, the complaint
alleges that Philex, in violation of government rules and
regulations, negligently and deliberately failed to take the required
precautions for the protection of the lives of its men working
underground. Portion of the complaint reads:
xxx xxx xxx
9. That for sometime prior and up to June 28,1967,
the defendant PHILEX, with gross and reckless
negligence and imprudence and deliberate failure
to take the required precautions for the due
protection of the lives of its men working
underground at the time, and in utter violation of
the laws and the rules and regulations duly
promulgated by the Government pursuant thereto,
allowed great amount of water and mud to
accumulate in an open pit area at the mine above
Block 43-S-1 which seeped through and saturated
the 600 ft. column of broken ore and rock below it,
thereby exerting tremendous pressure on the
working spaces at its 4300 level, with the result
that, on the said date, at about 4 o'clock in the
afternoon, with the collapse of all underground
supports due to such enormous pressure,
approximately 500,000 cubic feet of broken ores
rocks, mud and water, accompanied by surface
boulders, blasted through the tunnels and flowed
out and filled in, in a matter of approximately five
(5) minutes, the underground workings, ripped
timber supports and carried off materials,
machines and equipment which blocked all
avenues of exit, thereby trapping within its tunnels
of all its men above referred to, including those
named in the next preceding

represented by the plaintiffs herein;
paragraph,
10. That out of the 48 mine workers who were then

working at defendant PHILEX's mine on the said
date, five (5) were able to escape from the
terrifying holocaust; 22 were rescued within the
next 7 days; and the rest, 21 in number, including
those referred to in paragraph 7 hereinabove, were
left mercilessly to their fate, notwithstanding the
fact that up to then, a great many of them were
still alive, entombed in the tunnels of the mine, but
were not rescued due to defendant PHILEX's
decision to abandon rescue operations, in utter
disregard of its bounden legal and moral duties in
the premises;
xxx xxx xxx
Compensation Act (Act 3428, as amended by RA 772) and that the

former Court of First Instance has no jurisdiction over the case.
Petitioners filed an opposition dated May 27, 1968 to the said
motion to dismiss claiming that the causes of action are not based
on the provisions of the Workmen's Compensation Act but on the
provisions of the Civil Code allowing the award of actual, moral and
exemplary damages, particularly:
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre- existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
Art. 2178. The provisions of articles 1172 to 1174
are also applicable to a quasi-delict.
13. That defendant PHILEX not only violated the

law and the rules and regulations duly promulgated
by the duly constituted authorities as set out by
the Special Committee above referred to, in their
Report of investigation, pages 7-13, Annex 'B'
hereof, but also failed completely to provide its
men working underground the necessary security
for the protection of their lives notwithstanding the
fact that it had vast financial resources, it having
made, during the year 1966 alone, a total
operating income of P 38,220,254.00, or net
earnings, after taxes of P19,117,394.00, as per its
llth Annual Report for the year ended December
31, 1966, and with aggregate assets totalling P
45,794,103.00 as of December 31, 1966;
(b) Art. 1173The fault or negligence of the obligor

consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the persons,
of the time and of the place. When negligence
shows bad faith, the provisions of Articles 1171 and
2201, paragraph 2 shall apply.
xxx xxx xxx
Art. 2231. In quasi-delicts, exemplary damages

may be granted if the defendant acted with gross
negligence.
(pp. 42-44, rec.)

A motion to dismiss dated May 14, 1968 was filed by Philex
alleging that the causes of action of petitioners based on an
industrial accident are covered by the provisions of the Workmen's
Art. 2201. x x x x x x x x x
In case of fraud, bad faith, malice or wanton
attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to
the non-performance of the obligation.
After a reply and a rejoinder thereto were filed, respondent Judge

issued an order dated June 27, 1968 dismissing the case on the
ground that it falls within the exclusive jurisdiction of the
Workmen's Compensation Commission. On petitioners' motion for
reconsideration of the said order, respondent Judge, on September

23, 1968, reconsidered and set aside his order of June 27, 1968
and allowed Philex to file an answer to the complaint. Philex moved
to reconsider the aforesaid order which was opposed by
petitioners.
On December 16, 1968, respondent Judge dismissed the case for
lack of jurisdiction and ruled that in accordance with the
established
jurisprudence,
the
Workmen's
Compensation
Commission has exclusive original jurisdiction over damage or
compensation claims for work-connected deaths or injuries of
workmen or employees, irrespective of whether or not the
employer was negligent, adding that if the employer's negligence
results in work-connected deaths or injuries, the employer shall,
pursuant to Section 4-A of the Workmen's Compensation Act, pay
additional compensation equal to 50% of the compensation fixed in
the Act.
Petitioners thus filed the present petition.
In their brief, petitioners raised the following assignment of errors:
I
THE LOWER COURT ERRED IN DISMISSING THE
PLAINTIFFS- PETITIONERS' COMPLAINT FOR LACK
OF JURISDICTION.
II
THE LOWER COURT ERRED IN FAILING TO
CONSIDER THE CLEAR DISTINCTION BETWEEN
CLAIMS FOR DAMAGES UNDER THE CIVIL CODE
AND CLAIMS FOR COMPENSATION UNDER THE
WORKMEN'S COMPENSATION ACT.
A
In the first assignment of error, petitioners argue that the lower
court has jurisdiction over the cause of action since the complaint
is based on the provisions of the Civil Code on damages,
particularly Articles 2176, 2178, 1173, 2201 and 2231, and not on
the provisions of the Workmen's Compensation Act. They point out
that the complaint alleges gross and brazen negligence on the part
of Philex in failing to take the necessary security for the protection
of the lives of its employees working underground. They also assert
that since Philex opted to file a motion to dismiss in the court a
quo, the allegations in their complaint including those contained in
the annexes are deemed admitted.
In the second assignment of error, petitioners asseverate that
respondent Judge failed to see the distinction between the claims
for compensation under the Workmen's Compensation Act and the
claims for damages based on gross negligence of Philex under the
Civil Code. They point out that workmen's compensation refers to
liability for compensation for loss resulting from injury, disability or
death of the working man through industrial accident or disease,
without regard to the fault or negligence of the employer, while the
claim for damages under the Civil Code which petitioners pursued
in the regular court, refers to the employer's liability for reckless
and wanton negligence resulting in the death of the employees and
for which the regular court has jurisdiction to adjudicate the same.
On the other hand, Philex asserts that work-connected injuries are
compensable exclusively under the provisions of Sections 5 and 46
of the Workmen's Compensation Act, which read:
SEC. 5. Exclusive right to compensation.The
rights and remedies granted by this Act to an
employee by reason of a personal injury entitling
him to compensation shall exclude all other rights
and remedies accruing to the employee, his
personal representatives, dependents or nearest of
kin against the employer under the Civil Code and
other laws because of said injury ...
SEC.
46.
Jurisdiction.
The
Workmen's
Compensation Commissioner shall have exclusive
jurisdiction to hear and decide claims for
compensation under the Workmen's Compensation
Act, subject to appeal to the Supreme Court, ...
Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855
[1956]) where it was held that "all claims of workmen against their
employer for damages due to accident suffered in the course of
employment shall be investigated and adjudicated by the
Workmen's Compensation Commission," subject to appeal to the
Supreme Court.
Philex maintains that the fact that an employer was negligent,
does not remove the case from the exclusive character of
recoveries under the Workmen's Compensation Act; because
Section 4-A of the Act provides an additional compensation in case
the employer fails to comply with the requirements of safety as
imposed by law to prevent accidents. In fact, it points out that
Philex voluntarily paid the compensation due the petitioners and all
the payments have been accepted in behalf of the deceased
miners, except the heirs of Nazarito Floresca who insisted that they
are entitled to a greater amount of damages under the Civil Code.
In the hearing of this case, then Undersecretary of Labor Israel
Bocobo, then Atty. Edgardo Angara, now President of the University
of the Philippines, Justice Manuel Lazaro, as corporate counsel and
Assistant General Manager of the GSIS Legal Affairs Department,
and Commissioner on Elections, formerly UP Law Center Director
Froilan Bacungan, appeared as amici curiae and thereafter,
submitted their respective memoranda.
The issue to be resolved as WE stated in the resolution of
November 26, 1976, is:
Whether the action of an injured employee or
worker or that of his heirs in case of his death
under the Workmen's Compensation Act is
exclusive, selective or cumulative, that is to say,
whether his or his heirs' action is exclusively
restricted to seeking the limited compensation
provided under the Workmen's Compensation Act
or whether they have a right of selection or choice
of action between availing of the worker's right
under the Workmen's Compensation Act and suing
in the regular courts under the Civil Code for higher
damages (actual, moral and/or exemplary) from
the employer by virtue of negligence (or fault) of
the employer or of his other employees or whether
they may avail cumulatively of both actions, i.e.,

collect the limited compensation under the
Workmen's Compensation Act and sue in addition
for damages in the regular courts.
There are divergent opinions in this case. Justice Lazaro is of the
opinion that an injured employee or worker, or the heirs in case of
his death, may initiate a complaint to recover damages (not
compensation under the Workmen's Compensation Act) with the
regular court on the basis of negligence of an employer pursuant to
the Civil Code provisions. Atty. Angara believes otherwise. He
submits that the remedy of an injured employee for workconnected injury or accident is exclusive in accordance with
Section 5 of the Workmen's Compensation Act, while Atty.
Bacungan's position is that the action is selective. He opines that
the heirs of the employee in case of his death have a right of
choice to avail themselves of the benefits provided under the
Workmen's Compensation Act or to sue in the regular court under
the Civil Code for higher damages from the employer by virtue of
negligence of the latter. Atty. Bocobo's stand is the same as that of
Atty. Bacungan and adds that once the heirs elect the remedy
provided for under the Act, they are no longer entitled to avail
themselves of the remedy provided for under the Civil Code by
filing an action for higher damages in the regular court, and vice
versa.
On August 3, 1978, petitioners-heirs of deceased employee
Nazarito Floresca filed a motion to dismiss on the ground that they
have amicably settled their claim with respondent Philex. In the
resolution of September 7, 1978, WE dismissed the petition only
insofar as the aforesaid petitioners are connected, it appearing that
there are other petitioners in this case.
WE hold that the former Court of First Instance has jurisdiction to
try the case,
It should be underscored that petitioners' complaint is not for
compensation based on the Workmen's Compensation Act but a
complaint for damages (actual, exemplary and moral) in the total
amount of eight hundred twenty-five thousand (P825,000.00)
pesos. Petitioners did not invoke the provisions of the Workmen's
Compensation Act to entitle them to compensation thereunder. In
fact, no allegation appeared in the complaint that the employees
died from accident arising out of and in the course of their

employments. The complaint instead alleges gross and reckless
negligence and deliberate failure on the part of Philex to protect
the lives of its workers as a consequence of which a cave-in
occurred resulting in the death of the employees working
underground. Settled is the rule that in ascertaining whether or not
the cause of action is in the nature of workmen's compensation
claim or a claim for damages pursuant to the provisions of the Civil
Code, the test is the averments or allegations in the complaint
(Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between Philex and the deceased
employees a contractual relationship. The alleged gross and
reckless negligence and deliberate failure that amount to bad faith
on the part of Philex, constitute a breach of contract for which it
may be held liable for damages. The provisions of the Civil Code on
cases of breach of contract when there is fraud or bad faith, read:
Art. 2232. In contracts and quasi-contracts, the
court may award exemplary damages if the
defendant acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner.
Art. 2201. In contracts and quasi-contracts, the
damages for which the obligor who acted in good
faith is able shall be those that are the natural and
probable consequences of the breach of the
obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the
obligation was constituted.
In cases of fraud, bad faith, malice or wanton
attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to
the non-performance of the obligation.
Furthermore, Articles 2216 et seq., Civil Code, allow the payment of
all kinds of damages, as assessed by the court.
The rationale in awarding compensation under the Workmen's
Compensation Act differs from that in giving damages under the
Civil Code. The compensation acts are based on a theory of
compensation distinct from the existing theories of damages,

payments under the acts being made as compensation and not as
damages (99 C.J.S. 53). Compensation is given to mitigate the
harshness and insecurity of industrial life for the workman and his
family. Hence, an employer is liable whether negligence exists or
not since liability is created by law. Recovery under the Act is not
based on any theory of actionable wrong on the part of the
employer (99 C.J.S. 36).
In other words, under the compensation acts, the employer is liable
to pay compensation benefits for loss of income, as long as the
death, sickness or injury is work-connected or work-aggravated,
even if the death or injury is not due to the fault of the employer
(Murillo vs. Mendoza, 66 Phil. 689). On the other hand, damages
are awarded to one as a vindication of the wrongful invasion of his
rights. It is the indemnity recoverable by a person who has
sustained injury either in his person, property or relative rights,
through the act or default of another (25 C.J.S. 452).
The claimant for damages under the Civil Code has the burden of
proving the causal relation between the defendant's negligence
and the resulting injury as well as the damages suffered. While
under the Workmen's Compensation Act, there is a presumption in
favor of the deceased or injured employee that the death or injury
is work-connected or work-aggravated; and the employer has the
burden to prove otherwise (De los Angeles vs. GSIS, 94 SCRA 308;
Carino vs. WCC, 93 SCRA 551; Maria Cristina Fertilizer Corp. vs.
WCC, 60 SCRA 228).
The claim of petitioners that the case is not cognizable by the
Workmen's Compensation Commission then, now Employees
Compensation Commission, is strengthened by the fact that unlike
in the Civil Code, the Workmen's Compensation Act did not contain
any provision for an award of actual, moral and exemplary
damages. What the Act provided was merely the right of the heirs
to claim limited compensation for the death in the amount of six
thousand (P6,000.00) pesos plus burial expenses of two hundred
(P200.00) pesos, and medical expenses when incurred (Sections 8,
12 and 13, Workmen's Compensation Act), and an additional
compensation of only 50% if the complaint alleges failure on the
part of the employer to "install and maintain safety appliances or
to take other precautions for the prevention of accident or
occupational disease" (Section 4-A, Ibid.). In the case at bar, the
amount sought to be recovered is over and above that which was

provided under the Workmen's Compensation Act and which
cannot be granted by the Commission.
Moreover, under the Workmen's Compensation Act, compensation
benefits should be paid to an employee who suffered an accident
not due to the facilities or lack of facilities in the industry of his
employer but caused by factors outside the industrial plant of his
employer. Under the Civil Code, the liability of the employer,
depends on breach of contract or tort. The Workmen's
Compensation Act was specifically enacted to afford protection to
the employees or workmen. It is a social legislation designed to
give relief to the workman who has been the victim of an accident
causing his death or ailment or injury in the pursuit of his
employment (Abong vs. WCC, 54 SCRA 379).
WE now come to the query as to whether or not the injured
employee or his heirs in case of death have a right of selection or
choice of action between availing themselves of the worker's right
under the Workmen's Compensation Act and suing in the regular
courts under the Civil Code for higher damages (actual, moral and
exemplary) from the employers by virtue of that negligence or fault
of the employers or whether they may avail themselves
cumulatively of both actions, i.e., collect the limited compensation
under the Workmen's Compensation Act and sue in addition for
damages in the regular courts.
In disposing of a similar issue, this Court in Pacana vs. Cebu
Autobus Company, 32 SCRA 442, ruled that an injured worker has a
choice of either to recover from the employer the fixed amounts
set by the Workmen's Compensation Act or to prosecute an
ordinary civil action against the tortfeasor for higher damages but
he cannot pursue both courses of action simultaneously.
In Pacaa WE said:
In the analogous case of Esguerra vs. Munoz Palma,
involving the application of Section 6 of the
Workmen's Compensation Act on the injured
workers' right to sue third- party tortfeasors in the
regular courts, Mr. Justice J.B.L. Reyes, again
speaking for the Court, pointed out that the injured
worker has the choice of remedies but cannot

pursue both courses of action simultaneously and
thus balanced the relative advantage of recourse
under the Workmen's Compensation Act as against
an ordinary action.
As applied to this case, petitioner Esguerra cannot
maintain his action for damages against the
respondents (defendants below), because he has
elected to seek compensation under the
Workmen's Compensation Law, and his claim (case
No. 44549 of the Compensation Commission) was
being processed at the time he filed this action in
the Court of First Instance. It is argued for
petitioner that as the damages recoverable under
the Civil Code are much more extensive than the
amounts that may be awarded under the
Workmen's Compensation Act, they should not be
deemed incompatible. As already indicated, the
injured laborer was initially free to choose either to
recover from the employer the fixed amounts set
by the Compensation Law or else, to prosecute an
ordinary civil action against the tortfeasor for
higher damages. While perhaps not as profitable,
the smaller indemnity obtainable by the first
course is balanced by the claimant's being relieved
of the burden of proving the causal connection
between the defendant's negligence and the
resulting injury, and of having to establish the
extent of the damage suffered; issues that are apt
to be troublesome to establish satisfactorily. Having
staked his fortunes on a particular remedy,
petitioner is precluded from pursuing the alternate
course, at least until the prior claim is rejected by
the Compensation Commission. Anyway, under the
proviso of Section 6 aforequoted, if the employer
Franklin Baker Company recovers, by derivative
action against the alleged tortfeasors, a sum
greater than the compensation he may have paid
the herein petitioner, the excess accrues to the
latter.
Although the doctrine in the case of Esguerra vs. Munoz Palma

(104 Phil. 582), applies to third-party tortfeasor, said rule should
likewise apply to the employer-tortfeasor.
Compensation Act should be deducted from the damages that may

be decreed in their favor.
B
Insofar as the heirs of Nazarito Floresca are concerned, as already

stated, the petition has been dismissed in the resolution of
September 7, 1978 in view of the amicable settlement reached by
Philex and the said heirs.
With regard to the other petitioners, it was alleged by Philex in its
motion to dismiss dated May 14, 1968 before the court a quo, that
the heirs of the deceased employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino Martinez
submitted notices and claims for compensation to the Regional
Office No. 1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez
whose heirs decided that they be paid in installments (pp. 106-107,
rec.). Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated May 27, 1968 (pp. 121122, rec.) in the lower court, but they set up the defense that the
claims were filed under the Workmen's Compensation Act before
they learned of the official report of the committee created to
investigate the accident which established the criminal negligence
and violation of law by Philex, and which report was forwarded by
the Director of Mines to the then Executive Secretary Rafael Salas
in a letter dated October 19, 1967 only (p. 76, rec.).
WE hold that although the other petitioners had received the
benefits under the Workmen's Compensation Act, such may not
preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been
remiss in its contractual obligations with the deceased miners only
after receiving compensation under the Act. Had petitioners been
aware of said violation of government rules and regulations by
Philex, and of its negligence, they would not have sought redress
under the Workmen's Compensation Commission which awarded a
lesser amount for compensation. The choice of the first remedy
was based on ignorance or a mistake of fact, which nullifies the
choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings.
However, should the petitioners be successful in their bid before
the lower court, the payments made under the Workmen's
Contrary to the perception of the dissenting opinion, the Court

does not legislate in the instant case. The Court merely applies and
gives effect to the constitutional guarantees of social justice then
secured by Section 5 of Article 11 and Section 6 of Article XIV of
the 1935 Constitution, and now by Sections 6, 7, and 9 of Article 11
of the DECLARATION OF PRINCIPLES AND STATE POLICIES of the
1973 Constitution, as amended, and as implemented by Articles
2176, 2177, 2178, 1173, 2201, 2216, 2231 and 2232 of the New
Civil Code of 1950.
To emphasize, the 1935 Constitution declares that:
Sec. 5. The promotion of social justice to insure the
well-being and economic security of all the people
should be the concern of the State (Art. II).
Sec. 6. The State shall afford protection to labor,
especially to working women, and minors, and shall
regulate the relations between landowner and
tenant, and between labor and capital in industry
and in agriculture. The State may provide for
compulsory arbitration (Art. XIV).
The 1973 Constitution likewise commands the State to "promote
social justice to insure the dignity, welfare, and security of all the
people "... regulate the use ... and disposition of private property
and equitably diffuse property ownership and profits "establish,
maintain and ensure adequate social services in, the field
of education, health, housing, employment, welfare and social
security to guarantee the enjoyment by the people of a decent
standard of living" (Sections 6 and 7, Art. II, 1973 Constitution);
"... afford protection to labor, ... and regulate the relations between
workers and employers ..., and assure the rights of workers to ...
just and humane conditions of work"(Sec. 9, Art. II, 1973
Constitution, emphasis supplied).
The foregoing constitutional guarantees in favor of labor

institutionalized in Section 9 of Article 11 of the 1973 Constitution
and re-stated as a declaration of basic policy in Article 3 of the New
Labor Code, thus:
Art. 3. Declaration of basic policy.The State shall
afford
protection
to
labor,
promote
full
employment,ensure equal work opportunities
regardless of sex, race or creed, and regulate the
relations between workers and employers. The
State shall assure the rights of workers to selforganization, collective bargaining, security of
tenure, and just and humane conditions of work.
(emphasis supplied).
The aforestated constitutional principles as implemented by the
aforementioned articles of the New Civil Code cannot be impliedly
repealed by the restrictive provisions of Article 173 of the New
Labor Code. Section 5 of the Workmen's Compensation Act (before
it was amended by R.A. No. 772 on June 20, 1952), predecessor of
Article 173 of the New Labor Code, has been superseded by the
aforestated provisions of the New Civil Code, a subsequent law,
which took effect on August 30, 1950, which obey the
constitutional mandates of social justice enhancing as they do the
rights of the workers as against their employers. Article 173 of the
New Labor Code seems to diminish the rights of the workers and
therefore collides with the social justice guarantee of the
Constitution and the liberal provisions of the New Civil Code.
The guarantees of social justice embodied in Sections 6, 7 and 9 of
Article II of the 1973 Constitution are statements of legal principles
to be applied and enforced by the courts. Mr. Justice Robert Jackson
in the case of West Virginia State Board of Education vs. Barnette,
with characteristic eloquence, enunciated:
The very purpose of a Bill of Rights was to
withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the
reach of majorities and officials and to establish
them as legal principles to be applied by the
courts. One's right to life, liberty, and property, to
free speech, a free press, freedom of worship and
assembly, and other fundamental rights may not
be submitted to vote; they depend on the outcome

of no elections (319 U.S. 625, 638, 87 L.ed. 1638,
emphasis supplied).
In case of any doubt which may be engendered by Article 173 of
the New Labor Code, both the New Labor Code and the Civil Code
direct that the doubts should be resolved in favor of the workers
and employees.
Thus, Article 4 of the New Labor Code, otherwise known as
Presidential Decree No. 442, as amended, promulgated on May 1,
1974, but which took effect six months thereafter, provides that
"all doubts in the implementation and interpretation of the
provisions of this Code, including its implementing rules and
regulations, shall be resolved in favor of labor" (Art. 2, Labor Code).
Article 10 of the New Civil Code states: "In case of doubt in the
interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail. "
More specifically, Article 1702 of the New Civil Code likewise
directs that. "In case of doubt, all labor legislation and all labor
contracts shall be construed in favor of the safety and decent living
of the laborer."
Before it was amended by Commonwealth Act No. 772 on June 20,
1952, Section 5 of the Workmen's Compensation Act provided:
Sec. 5. Exclusive right to compensation.- The rights
and remedies granted by this Act to an employee
by reason of a personal injury entitling him to
compensation shall exclude all other rights and
remedies accruing to the employee, his personal
representatives, dependents or nearest of kin
against the employer under the Civil Code and
other laws, because of said injury (emphasis
supplied).
Employers contracting laborecsrs in the Philippine
Islands for work outside the same may stipulate
with such laborers that the remedies prescribed by
this Act shall apply exclusively to injuries received
outside the Islands through accidents happening in

and during the performance of the duties of the
employment; and all service contracts made in the
manner prescribed in this section shall be
presumed to include such agreement.
Only the second paragraph of Section 5 of the Workmen's
Compensation Act No. 3428, was amended by Commonwealth Act
No. 772 on June 20, 1952, thus:
Sec. 5. Exclusive right to compensation.- The rights
other laws, because of said injury.
Employers contracting laborers in the Philippine
Islands for work outside the same shall stipulate
this Act shall apply to injuries received outside the
Island through accidents happening in and during
the performance of the duties of the employment.
Such stipulation shall not prejudice the right of the
laborers to the benefits of the Workmen's
Compensation Law of the place where the accident
occurs, should such law be more favorable to them
(As amended by section 5 of Republic Act No. 772).
Article 173 of the New Labor Code does not repeal expressly nor
impliedly the applicable provisions of the New Civil Code, because
said Article 173 provides:
Art. 173. Exclusiveness of liability.- Unless
otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive
and in place of all other liabilities of the employer
to the employee, his dependents or anyone
otherwise entitled to receive damages on behalf of
the employee or his dependents. The payment of
compensation under this Title shall bar the

recovery of benefits as provided for in Section 699
of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended,
Commonwealth Act Numbered One hundred eightysix, as amended, Commonwealth Act Numbered Six
hundred ten, as amended, Republic Act Numbered
Forty-eight hundred Sixty-four, as amended, and
other laws whose benefits are administered by the
System during the period of such payment for the
same disability or death, and conversely (emphasis
supplied).
As above-quoted, Article 173 of the New Labor Code expressly
repealed only Section 699 of the Revised Administrative Code, R.A.
No. 1161, as amended, C.A. No. 186, as amended, R.A. No. 610, as
amended, R.A. No. 4864, as amended, and all other laws whose
benefits are administered by the System (referring to the GSIS or
SSS).
Unlike Section 5 of the Workmen's Compensation Act as
aforequoted, Article 173 of the New Labor Code does not even
remotely, much less expressly, repeal the New Civil Code
provisions heretofore quoted.
It is patent, therefore, that recovery under the New Civil Code for
damages arising from negligence, is not barred by Article 173 of
the New Labor Code. And the damages recoverable under the New
Civil Code are not administered by the System provided for by the
New Labor Code, which defines the "System" as referring to the
Government Service Insurance System or the Social Security
System (Art. 167 [c], [d] and [e] of the New Labor Code).
Furthermore, under Article 8 of the New Civil Code, decisions of the
Supreme Court form part of the law of the land.
Article 8 of the New Civil Code provides:
Art. 8. Judicial decisions applying or interpreting
the laws or the Constitution shall form a part of the
legal system of the Philippines.
The Court, through the late Chief Justice Fred Ruiz Castro, in People
vs. Licera ruled:
Article 8 of the Civil Code of the Philippines decrees
that judicial decisions applying or interpreting the
laws or the Constitution form part of this
jurisdiction's legal system. These decisions,
although in themselves not laws, constitute
evidence of what the laws mean. The application or
interpretation placed by the Court upon a law is
part of the law as of the date of the enactment of
the said law since the Court's application or
interpretation
merely
establishes
the
contemporaneous legislative intent that the
construed law purports to carry into effect" (65
SCRA 270, 272-273 [1975]).
WE ruled that judicial decisions of the Supreme Court assume the
same authority as the statute itself (Caltex vs. Palomer, 18 SCRA
247; 124 Phil. 763).
The aforequoted provisions of Section 5 of the Workmen's
Compensation Act, before and after it was amended by
Commonwealth Act No. 772 on June 20, 1952, limited the right of
recovery in favor of the deceased, ailing or injured employee to the
compensation provided for therein. Said Section 5 was not
accorded controlling application by the Supreme Court in the 1970
case of Pacana vs. Cebu Autobus Company (32 SCRA 442) when
WE ruled that an injured worker has a choice of either to recover
from the employer the fixed amount set by the Workmen's
Compensation Act or to prosecute an ordinary civil action against
the tortfeasor for greater damages; but he cannot pursue both
courses of action simultaneously. Said Pacana case penned by Mr.
Justice Teehankee, applied Article 1711 of the Civil Code as against
the Workmen's Compensation Act, reiterating the 1969 ruling in
the case of Valencia vs. Manila Yacht Club (28 SCRA 724, June
30,1969) and the 1958 case of Esguerra vs. Munoz Palma (104 Phil.
582), both penned by Justice J.B.L. Reyes. Said Pacana case was
concurred in by Justices J.B.L. Reyes, Dizon, Makalintal, Zaldivar,
Castro, Fernando and Villamor.
Since the first sentence of Article 173 of the New Labor Code is
merely a re-statement of the first paragraph of Section 5 of the
Workmen's Compensation Act, as amended, and does not even

refer, neither expressly nor impliedly, to the Civil Code as Section 5
of the Workmen's Compensation Act did, with greater reason said
Article 173 must be subject to the same interpretation adopted in
the cases of Pacana, Valencia and Esguerra aforementioned as the
doctrine in the aforesaid three (3) cases is faithful to and advances
the social justice guarantees enshrined in both the 1935 and 1973
Constitutions.
It should be stressed likewise that there is no similar provision on
social justice in the American Federal Constitution, nor in the
various state constitutions of the American Union. Consequently,
the restrictive nature of the American decisions on the Workmen's
Compensation Act cannot limit the range and compass of OUR
interpretation of our own laws, especially Article 1711 of the New
Civil Code, vis-a-vis Article 173 of the New Labor Code, in relation
to Section 5 of Article II and Section 6 of Article XIV of the 1935
Constitution then, and now Sections 6, 7 and 9 of the Declaration
of Principles and State Policies of Article II of the 1973 Constitution.
The dissent seems to subordinate the life of the laborer to the
property rights of the employer. The right to life is guaranteed
specifically by the due process clause of the Constitution. To relieve
the employer from liability for the death of his workers arising from
his gross or wanton fault or failure to provide safety devices for the
protection of his employees or workers against the dangers which
are inherent in underground mining, is to deprive the deceased
worker and his heirs of the right to recover indemnity for the loss of
the life of the worker and the consequent loss to his family without
due process of law. The dissent in effect condones and therefore
encourages such gross or wanton neglect on the part of the
employer to comply with his legal obligation to provide safety
measures for the protection of the life, limb and health of his
worker. Even from the moral viewpoint alone, such attitude is unChristian.
It is therefore patent that giving effect to the social justice
guarantees of the Constitution, as implemented by the provisions
of the New Civil Code, is not an exercise of the power of lawmaking, but is rendering obedience to the mandates of the
fundamental law and the implementing legislation aforementioned.
The Court, to repeat, is not legislating in the instant case.
It is axiomatic that no ordinary statute can override a constitutional

provision.
The words of Section 5 of the Workmen's Compensation Act and of
Article 173 of the New Labor Code subvert the rights of the
petitioners as surviving heirs of the deceased mining employees.
Section 5 of the Workmen's Compensation Act and Article 173 of
the New Labor Code are retrogressive; because they are a
throwback to the obsolete laissez-faire doctrine of Adam Smith
enunciated in 1776 in his treatise Wealth of Nations (Collier's
Encyclopedia, Vol. 21, p. 93, 1964), which has been discarded soon
after the close of the 18th century due to the Industrial Revolution
that generated the machines and other mechanical devices
(beginning with Eli Whitney's cotton gin of 1793 and Robert
Fulton's steamboat of 1807) for production and transportation
which are dangerous to life, limb and health. The old socio-politicaleconomic philosophy of live-and-let-live is now superdesed by the
benign Christian shibboleth of live-and-help others to live. Those
who profess to be Christians should not adhere to Cain's selfish
affirmation that he is not his brother's keeper. In this our
civilization, each one of us is our brother's keeper. No man is an
island. To assert otherwise is to be as atavistic and ante-deluvian
as the 1837 case of Prisley vs. Fowler (3 MN 1,150 reprint 1030)
invoked by the dissent, The Prisley case was decided in 1837
during the era of economic royalists and robber barons of America.
Only ruthless, unfeeling capitalistics and egoistic reactionaries
continue to pay obeisance to such un-Christian doctrine. The
Prisley rule humiliates man and debases him; because the decision
derisively refers to the lowly worker as "servant" and utilizes with
aristocratic arrogance "master" for "employer." It robs man of his
inherent dignity and dehumanizes him. To stress this affront to
human dignity, WE only have to restate the quotation from Prisley,
thus: "The mere relation of the master and the servant never can
imply an obligation on the part of the master to take more care of
the servant than he may reasonably be expected to do himself."
This is the very selfish doctrine that provoked the American Civil
War which generated so much hatred and drew so much precious
blood on American plains and valleys from 1861 to 1864.
"Idolatrous reverence" for the letter of the law sacrifices the human
being. The spirit of the law insures man's survival and ennobles
him. In the words of Shakespeare, "the letter of the law killeth; its
spirit giveth life."
C
It is curious that the dissenting opinion clings to the myth that the
courts cannot legislate.
That myth had been exploded by Article 9 of the New Civil Code,
which provides that "No judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the
laws. "
Hence, even the legislator himself, through Article 9 of the New
Civil Code, recognizes that in certain instances, the court, in the
language of Justice Holmes, "do and must legislate" to fill in the
gaps in the law; because the mind of the legislator, like all human
beings, is finite and therefore cannot envisage all possible cases to
which the law may apply Nor has the human mind the infinite
capacity to anticipate all situations.
But about two centuries before Article 9 of the New Civil Code, the
founding fathers of the American Constitution foresaw and
recognized the eventuality that the courts may have to legislate to
supply the omissions or to clarify the ambiguities in the American
Constitution and the statutes.
'Thus, Alexander Hamilton pragmatically admits that judicial
legislation may be justified but denies that the power of the
Judiciary to nullify statutes may give rise to Judicial tyranny (The
Federalist, Modern Library, pp. 503-511, 1937 ed.). Thomas
Jefferson went farther to concede that the court is even
independent of the Nation itself (A.F.L. vs. American Sash
Company, 1949 335 US 538).
Many of the great expounders of the American Constitution
likewise share the same view. Chief Justice Marshall pronounced: "It
is emphatically the province and duty of the Judicial department to
say what the law is (Marbury vs. Madison I Cranch 127 1803),
which was re-stated by Chief Justice Hughes when he said that "the
Constitution is what the judge says it is (Address on May 3, 1907,
quoted by President Franklin Delano Roosevelt on March 9, 1937).
This was reiterated by Justice Cardozo who pronounced that "No
doubt the limits for the judge are narrower. He legislates only
between gaps. He fills the open spaces in the law. " (The Nature of
the Judicial Process, p. 113). In the language of Chief Justice Harlan

F. Stone, "The only limit to the judicial legislation is the restraint of
the judge" (U.S. vs. Butler 297 U.S. 1 Dissenting Opinion, p. 79),
which view is also entertained by Justice Frankfurter and Justice
Robert Jackson. In the rhetoric of Justice Frankfurter, "the courts
breathe life, feeble or strong, into the inert pages of the
Constitution and all statute books."
It should be stressed that the liability of the employer under
Section 5 of the Workmen's Compensation Act or Article 173 of the
New Labor Code is limited to death, ailment or injury caused by the
nature of the work, without any fault on the part of the employers.
It is correctly termed no fault liability. Section 5 of the Workmen's
Compensation Act, as amended, or Article 173 of the New Labor
Code, does not cover the tortious liability of the employer
occasioned by his fault or culpable negligence in failing to provide
the safety devices required by the law for the protection of the life,
limb and health of the workers. Under either Section 5 or Article
173, the employer remains liable to pay compensation benefits to
the employee whose death, ailment or injury is work-connected,
even if the employer has faithfully and diligently furnished all the
safety measures and contrivances decreed by the law to protect
the employee.
The written word is no longer the "sovereign talisman." In the
epigrammatic language of Mr. Justice Cardozo, "the law has
outgrown its primitive stage of formalism when the precise word
was the sovereign talisman, and every slip was fatal" (Wood vs.
Duff Gordon 222 NW 88; Cardozo, The Nature of the Judicial
Process 100). Justice Cardozo warned that: "Sometimes the
conservatism of judges has threatened for an interval to rob the
legislation of its efficacy. ... Precedents established in those items
exert an unhappy influence even now" (citing Pound, Common Law
and Legislation 21 Harvard Law Review 383, 387).
Finally, Justice Holmes delivered the coup de grace when he
pragmatically admitted, although with a cautionary undertone:
"that judges do and must legislate, but they can do so only
interstitially they are confined from molar to molecular motions"
(Southern Pacific Company vs. Jensen, 244 US 204 1917). And in
the subsequent case of Springer vs. Government (277 US 188, 210212, 72 L.ed. 845, 852- 853), Justice Holmes pronounced:
The great ordinances of the Constitution do not

establish and divide fields of black and white. Even
the more specific of them are found to terminate in
a penumbra shading gradually from one extreme to
the other. x x x. When we come to the fundamental
distinctions it is still more obvious that they must
be received with a certain latitude or our
government could not go on.
To make a rule of conduct applicable to an
individual who but for such action would be free
from it is to legislate yet it is what the judges do
whenever they determine which of two competing
principles of policy shall prevail.
xxx xxx xxx
It does not seem to need argument to show that
however we may disguise it by veiling words we do
not and cannot carry out the distinction between
legislative and executive action with mathematical
precision and divide the branches into waterlight
compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the
Constitution requires.
True, there are jurists and legal writers who affirm that judges
should not legislate, but grudgingly concede that in certain cases
judges do legislate. They criticize the assumption by the courts of
such law-making power as dangerous for it may degenerate into
Judicial tyranny. They include Blackstone, Jeremy Bentham, Justice
Black, Justice Harlan, Justice Roberts, Justice David Brewer, Ronald
Dworkin, Rolf Sartorious, Macklin Fleming and Beryl Harold Levy.
But said Justices, jurists or legal commentators, who either deny
the power of the courts to legislate in-between gaps of the law, or
decry the exercise of such power, have not pointed to examples of
the exercise by the courts of such law-making authority in the
interpretation and application of the laws in specific cases that
gave rise to judicial tyranny or oppression or that such judicial
legislation has not protected public interest or individual welfare,
particularly the lowly workers or the underprivileged.
On the other hand, there are numerous decisions interpreting the

Bill of Rights and statutory enactments expanding the scope of
such provisions to protect human rights. Foremost among them is
the doctrine in the cases of Miranda vs. Arizona (384 US 436 1964),
Gideon vs. Wainright (372 US 335), Escubedo vs. Illinois (378 US
478), which guaranteed the accused under custodial investigation
his rights to remain silent and to counsel and to be informed of
such rights as even as it protects him against the use of force or
intimidation to extort confession from him. These rights are not
found in the American Bill of Rights. These rights are now
institutionalized in Section 20, Article IV of the 1973 Constitution.
Only the peace-and-order adherents were critical of the activism of
the American Supreme Court led by Chief Justice Earl Warren.
Even the definition of Identical offenses for purposes of the double
jeopardy provision was developed by American judicial decisions,
not by amendment to the Bill of Rights on double jeopardy (see
Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these
judicial decisions have been re-stated in Section 7 of Rule 117 of
the 1985 Rules on Criminal Procedure, as well as in Section 9 of
Rule 117 of the 1964 Revised Rules of Court. In both provisions, the
second offense is the same as the first offense if the second
offense is an attempt to commit the first or frustration thereof or
necessarily includes or is necessarily included in the first offense.
The requisites of double jeopardy are not spelled out in the Bill of
Rights. They were also developed by judicial decisions in the
United States and in the Philippines even before people vs. Ylagan
(58 Phil. 851-853).
Again, the equal protection clause was interpreted in the case of
Plessy vs. Ferguson (163 US 537) as securing to the Negroes equal
but separate facilities, which doctrine was revoked in the case of
Brown vs. Maryland Board of Education (349 US 294), holding that
the equal protection clause means that the Negroes are entitled to
attend the same schools attended by the whites-equal facilities in
the same school-which was extended to public parks and public
buses.
De-segregation, not segregation, is now the governing principle.
Among other examples, the due process clause was interpreted in

the case of People vs. Pomar (46 Phil. 440) by a conservative,
capitalistic court to invalidate a law granting maternity leave to
working women-according primacy to property rights over human
rights. The case of People vs. Pomar is no longer the rule.
As early as 1904, in the case of Lochner vs. New York (198 US 45,
76, 49 L. ed. 937, 949), Justice Holmes had been railing against the
conservatism of Judges perverting the guarantee of due process to
protect property rights as against human rights or social justice for
the working man. The law fixing maximum hours of labor was
invalidated. Justice Holmes was vindicated finally in 1936 in the
case of West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703)
where the American Supreme Court upheld the rights of workers to
social justice in the form of guaranteed minimum wage for women
and minors, working hours not exceeding eight (8) daily, and
maternity leave for women employees.
The power of judicial review and the principle of separation of
powers as well as the rule on political questions have been evolved
and grafted into the American Constitution by judicial decisions
(Marbury vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L.
ed. 1385; Springer vs. Government, 277 US 210-212, 72 L. ed. 852,
853).
It is noteworthy that Justice Black, who seems to be against judicial
legislation, penned a separate concurring opinion in the case of
Coleman vs. Miller, supra, affirming the doctrine of political
question as beyond the ambit of judicial review. There is nothing in
both the American and Philippine Constitutions expressly providing
that the power of the courts is limited by the principle of separation
of powers and the doctrine on political questions. There are
numerous cases in Philippine jurisprudence applying the doctrines
of separation of powers and political questions and invoking
American precedents.
Unlike the American Constitution, both the 1935 and 1973
Philippine Constitutions expressly vest in the Supreme Court the
power to review the validity or constitutionality of any legislative
enactment or executive act.
WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY

REVERSED AND SET ASIDE AND THE CASE IS REMANDED TO IT FOR
FURTHER PROCEEDINGS. SHOULD A GREATER AMOUNT OF
DAMAGES BE DECREED IN FAVOR OF HEREIN PETITIONERS, THE
PAYMENTS ALREADY MADE TO THEM PURSUANT TO THE
WORKMEN'S COMPENSATION ACT SHALL BE DEDUCTED. NO
COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Plana, Escolin, De la Fuente, Cuevas
and Alampay JJ., concur.
Concepcion, Jr., J., is on leave.
Abad Santos and Relova, JJ., took no part.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:

A
This case involves a complaint for damages for the death of five
employees of PHILEX Mining Corporation under the general
provisions of the Civil Code. The Civil Code itself, however,
provides for its non-applicability to the complaint. It is specifically
provided in Article 2196 of the Code, found in Title XVIII-Damages
that:
COMPENSATION FOR WORKMEN AND OTHER
EMPLOYEES IN CASE OF DEATH, INJURY OR
ILLNESS IS REGULATED BY SPECIAL LAWS.
Compensation and damages are synonymous. In Esguerra vs.

Muoz Palma, etc., et al., 104 Phil. 582, 586, Justice J.B.L. Reyes
had said:
Petitioner also avers that compensation is not
damages. This argument is but a play on words.
The term compensation' is used in the law (Act
3812 and Republic Act 772) in the sense of
indemnity for damages suffered, being awarded for
a personal injury caused or aggravated by or in the
course of employment. ...
By the very provisions of the Civil Code, it is a "special law", not
the Code itself, which has to apply to the complaint involved in the
instant case. That "special law", in reference to the complaint, can
be no other than the Workmen's Compensation
Even assuming, without conceding, that an employee is entitled to
an election of remedies, as the majority rules, both options cannot
be exercised simultaneously, and the exercise of one will preclude
the exercise of the other. The petitioners had already exercised
their option to come under the Workmen's Compensation Act, and
they have already received compensation payable to them under
that Act. Stated differently, the remedy under the Workmen's
Compensation Act had already become a "finished transaction".
There are two considerations why it is believed petitioners should
no longer be allowed to exercise the option to sue under the Civil
Code. In the first place, the proceedings under the Workmen's
Compensation Act have already become the law in regards to" the
"election of remedies", because those proceedings had become a
"finished transaction".
In the second place, it should be plainly equitable that, if a person
entitled to an "election of remedies" makes a first election and
accepts the benefits thereof, he should no longer be allowed to
avail himself of the second option. At the very least, if he wants to
make a second election, in disregard of the first election he has
made, when he makes the second election he should surrender the
benefits he had obtained under the first election, This was not done
in the case before the Court.
B.
SEC. 5. Exclusive right to compensation.-The rights

'There is full concurrence on my part with the dissenting opinion of

Mr. Justice Gutierrez upholding "the exclusory provision of the
Workmen's Compensation Act." I may further add:

compensation
1. The Workmen's Compensation Act (Act No. 3428) was approved

on December 10, 1927 and took effect on June 10, 1928. It was
patterned from Minnesota and Hawaii statutes.
shall exclude all other rights and remedies accruing

to the employee, his personal representatives,
dependents or nearest of kin against the employer
Act No. 3428 was adopted by the Philippine

legislature, in Spanish and some sections of the law
were taken from the statutes of Minnesota and
Hawaii, (Chapter 209 of the Revised Laws of
Hawaii, 1925). [Morabe & Inton, Workmen's
Compensation Act, p. 2]
under the Civil Code and other laws, because of

said injury (Paragraphing and emphasis supplied)
Under the Workmen's Compensation Act of Hawaii, when the Act is

applicable, the remedy under the Act is exclusive The following is
stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267.
Sec. 112. Hawaii
Statutory Synopsis. The act is compulsory as to
employees in 'all industrial employment' and
employees of the territory and its political
subdivisions. (Sections 7480-7481, S.S., Vol. 1, p.
713.)
Compensation is not payable when injury is due to
employee's willful intention to injure himself or
another or to his intoxication. (Sec. 7482, S.S., p.
713.)
When the act is applicable the remedy thereunder
is exclusive (Sec. 7483, S.S., p. 714.)
2. In providing for exclusiveness of the remedy under our
Workmen's Compensation Act, the Philippine Legislature worded
the first paragraph of Section 5 of the Act as follows:
In regards to the intent of the Legislature under the foregoing

provision:
A cardinal rule in the interpretation of statutes is
that the meaning and intention of the law-making
body must be sought, first of all in the words of the
statute itself, read and considered in their natural,
ordinary, commonly-accepted and most obvious
significations, according to good and approved
usage and without resorting to forced or subtle
construction Courts, therefore, as a rule, cannot
presume that the law-making body does not know
the meaning of words and the rules of grammar.
Consequently, the grammatical reading of a statute
must be presumed to yield its correct sense.
(Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied]
3. The original second paragraph of Section 5 provided:
employment. (Italics supplied)
The use of the word "exclusively is a further confirmation of the

exclusory provision of the Act, subject only to exceptions which
may be provided in the Act itself.
4. It might be mentioned that, within the Act itself, provision is
made for remedies other than within the Act itself. Thus, Section 6,
in part, provides:
SEC. 6. Liability of third parties.-In case an
employee suffers an injury for which compensation
is due under this Act by any other person besides
his employer, it shall be optional with such injured
employee either to claim compensation from his
employer, under this Act, or sue such other person
for damages, in accordance with law; ... (Emphasis
supplied)
If the legislative intent under the first paragraph of Section 5 were
to allow the injured employee to sue his employer under the Civil
Code, the legislator could very easily have formulated the said first
paragraph of Section 5 according to the pattern of Section 6. That
that was not done shows the legislative intent not to allow any
option to an employee to sue the employer under the Civil Code for
injuries compensable under the Act.
5. There should be no question but that the original first paragraph
of Section 5 of the Workmen's Compensation Act, formulated in
1927, provided that an injured worker or employee, or his heirs, if
entitled to compensation under the Act, cannot have independent
recourse neither to the Civil Code nor to any other law relative to
the liability of the employer. After 1927, there were occasions when
the legislator had the opportunity to amend the first paragraph of
Section 5 such that the remedies under the Act would not be
exclusive; yet, the legislator refrained from doing so. That shows
the legislatives continuing intent to maintain the exclusory
provision of the first paragraph of Section 5 unless otherwise
provided in the Act itself.
(a) The original second paragraph of Section 5 provided:

this Act shall apply (exclusively) to injuries received
employment (and all service contracts made in the
manner prescribed in this section be presumed to
include such agreement).
On June 20, 1952, through RA 772, the foregoing second paragraph
was amended with the elimination of the underlined words in
parentheses, and the addition of this sentence at the end of the
paragraph:
occurs, should such law be more favorable to them.
(Emphasis supplied)
It will be seen that, within the Act itself, the exclusory character of
the Act was amended. At that time, if he had so desired, the
legislator could have amended the first paragraph of Section 5 so
that the employee would have the option to sue the employer
under the Act, or under the Civil Code, should the latter be more
favorable to him.
(b) The Workmen's Compensation Act, which took effect in 1927,
grants compensation to an injured employee without regard to the
presence or absence of negligence on the part of the employer.
The compensation is deemed an expense chargeable to the
industry (Murillo vs. Mendoza, 66 Phil. 689 [1938]).
In time, it must have been thought that it was inequitable to have
the amount of compensation, caused by negligence on the part of
the employer, to be the same amount payable when the employer
was not negligent. Based on that thinking, Section 4-A 1 was
included into the Act, on June 20, 1952, through RA 772. Said
Section 4-A increased the compensation payable by 50% in case
there was negligence on the part of the employer. That additional
section evidenced the intent of the legislator not to give an option
to an employee, injured with negligence on the part of the
employer, to sue the latter under the provisions of the Civil Code.
On June 20, 1964, Section 4-A was amended (insubstantially) by RA

4119. The legislator was again given the opportunity to provide,
but he did not, the option to an employee to sue under the Act or
under the Civil Code.
When a Court gives effect to a statute not in accordance with the
intent of the law-maker, the Court is unjustifiably legislating.
It is in view of the foregoing that I vote for affirmation of the trial
Court's dismissal of the Complaint.
GUTIERREZ, JR., J., dissenting:
To grant the petition and allow the victims of industrial accidents to
file damages suits based on torts would be a radical innovation not
only contrary to the express provisions of the Workmen's
Compensation Act but a departure from the principles evolved in
the long history of workmen's compensation. At the very least, it
should be the legislature and not this Court which should remove
the exclusory provision of the Workmen's Compensation Act, a
provision reiterated in the present Labor Code on employees'
compensation.
Workmen's compensation evolved to remedy the evils associated
with the situation in the early years of the industrial revolution
when injured workingmen had to rely on damage suits to get
recompense.
Before workmen's compensation, an injured worker seeking

damages would have to prove in a tort suit that his employer was
either negligent or in bad faith, that his injury was caused by the
employer and not a fellow worker, and that he was not guilty of
contributory negligence. The employer could employ not only his
wealth in defeating the claim for damages but a host of common
law defenses available to him as well. The worker was supposed to
know what he entered into when he accepted employment. As
stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150
Reprint 1030) decided in 1837 "the mere relation of the master and
the servant never can imply an obligation on the part of the master
to take more care of the servant than he may reasonably be
expected to do of himself." By entering into a contract of
employment, the worker was deemed to accept the risks of
employment that he should discover and guard against himself.
The problems associated with the application of the fellow servant
rule, the assumption of risk doctrine, the principle of contributory
negligence, and the many other defenses so easily raised in
protracted damage suits illustrated the need for a system whereby
workers had only to prove the fact of covered employment and the
fact of injury arising from employment in order to be compensated.
The need for a compensation scheme where liability is created
solely by statute and made compulsory and where the element of
fault-either the fault of the employer or the fault of the employeedisregarded became obvious. Another objective was to have
simplified, expeditious, inexpensive, and non-litigious procedures
so that victims of industrial accidents could more readily, if not
automatically, receive compensation for work-related injuries.
Inspite of common law defenses to defeat a claim being
recognized, employers' liability acts were a major step in the
desired direction. However, employers liability legislation proved
inadequate. Legislative reform led to the workmen's compensation.
I cite the above familiar background because workmen's
compensation represents a compromise. In return for the near
certainty of receiving a sum of money fixed by law, the injured
worker gives up the right to subject the employer to a tort suit for
huge amounts of damages. Thus, liability not only disregards the
element of fault but it is also a pre- determined amount based on
the wages of the injured worker and in certain cases, the actual
cost of rehabilitation. The worker does not receive the total

damages for his pain and suffering which he could otherwise claim
in a civil suit. The employer is required to act swiftly on
compensation claims. An administrative agency supervises the
program. And because the overwhelming mass of workingmen are
benefited by the compensation system, individual workers who
may want to sue for big amounts of damages must yield to the
interests of their entire working class.
The nature of the compensation principle is explained as follows:
An appreciation of the nature of the compensation
principle is essential to an understanding of the
acts and the cases interpreting them.
By the turn of the century it was apparent that the
toll of industrial accidents of both the avoidable
and unavoidable variety had become enormous,
and government was faced with the problem of
who was to pay for the human wreckage wrought
by the dangers of modern industry. If the accident
was avoidable and could be attributed to the
carelessness of the employer, existing tort
principles offered some measure of redress. Even
here, however, the woeful inadequacy of the fault
principle was manifest. The uncertainty of the
outcome of torts litigation in court placed the
employee at a substantial disadvantage. So long as
liability depended on fault there could be no
recovery until the finger of blame had been pointed
officially at the employer or his agents. In most
cases both the facts and the law were uncertain.
The witnesses, who were usually fellow workers of
the victim, were torn between friendship or loyalty
to their class, on the one hand, and fear of reprisal
by the employer, on the other. The expense and
delay of litigation often prompted the injured
employee to accept a compromise settlement for a
fraction of the full value of his claim. Even if suit
were successfully prosecuted, a large share of the
proceeds of the judgment were exacted as
contingent fees by counsel. Thus the employer
against whom judgment was cast often paid a
substantial damage bill, while only a part of this

enured to the benefit of the injured employee or his
dependents. The employee's judgment was nearly
always too little and too late.
xxx xxx xxx
Workmen's Compensation rests upon the economic
principle that those persons who enjoy the product
of a business- whether it be in the form of goods or
services- should ultimately bear the cost of the
injuries or deaths that are incident to the
manufacture, preparation and distribution of the
product. ...
xxx xxx xxx
Under this approach the element of personal fault
either disappears entirely or is subordinated to
broader economic considerations. The employer
absorbs the cost of accident loss only initially; it is
expected that this cost will eventually pass down
the stream of commerce in the form of increase
price until it is spread in dilution among the
ultimate consumers. So long as each competing
unit in a given industry is uniformly affected, no
producer can gain any substantial competitive
advantage or suffer any appreciable loss by reason
of the general adoption of the compensation
principle.
In order that the compensation principle may
operate properly and with fairness to all parties it is
essential that the anticipated accident cost be
predictable and that it be fixed at a figure that will
not disrupt too violently the traffic in the product of
the industry affected. Thus predictability and
moderateness of cost are necessary from the broad
economic viewpoint. ....
Compensation, then, differs from the conventional
damage suit in two important respects: Fault on the
part of either employer or employee is eliminated;

and compensation payable according to a definitely
limited schedule is substituted for damages. All
compensation acts alike work these two major
changes, irrespective of how they may differ in
other particulars.
Compensation, when regarded from the viewpoint
of
employer
and
employee
represents
a
compromise in which each party surrenders certain
advantages in order to gain others which are of
more importance both to him and to society. The
employer gives up the immunity he otherwise
would enjoy in cases where he is not at fault, and
the employee surrenders his former right to full
damages and accepts instead a more modest claim
for bare essentials, represented by compensation.
The importance of the compromise character of

compensation cannot be overemphasized. The
statutes vary a great deal with reference to the
proper point of balance. The amount of weekly
compensation payments and the length of the
period during which compensation is to be paid are
matters concerning which the acts differ
considerably.
The
interpretation
of
any
compensation statute will be influenced greatly by
the court's reaction to the basic point of
compromise established in the Act. If the court
feels that the basic compromise unduly favors the
employer, it will be tempted to restore what it
regards as a proper balance by adopting an
interpretation that favors the worker. In this way, a
compensation act drawn in a spirit of extreme
conservatism
may
be
transformed
by
a
sympathetic court into a fairly liberal instrument;
and conversely, an act that greatly favors the
laborer may be so interpreted by the courts that
employers can have little reason to complain. Much
of the unevenness and apparent conflict in
compensation decisions throughout the various
jurisdictions must be attributed to this." (Malone &
Plant,
Workmen's
Compensation
American
Casebook Series, pp. 63-65).
The schedule of compensation, the rates of payments, the
compensable injuries and diseases, the premiums paid by
employers to the present system, the actuarial stability of the trust
fund and many other interrelated parts have all been carefully
studied before the integrated scheme was enacted in to law. We
have a system whose parts must mesh harmonious with one
another if it is to succeed. The basic theory has to be followed.
If this Court disregards this totality of the scheme and in a spirit of
generosity recasts some parts of the system without touching the
related others, the entire structure is endangered. For instance, I
am personally against stretching the law and allowing payment of
compensation for contingencies never envisioned to be
compensable when the law was formulated. Certainly, only harmful
results to the principle of workmen's compensation can arise if
workmen, whom the law allows to receive employment
compensation, can still elect to file damage suits for industrial

accidents. It was precisely for this reason that Section 5 of the
Workmen's Compensation Act, which reads:
other laws because of said injury. ...
Article 173 of the labor Code also provides:
ART. 173. Exclusivenesss of liability.Unless
to the employee his dependents or anyone
the employee or his dependents.
I am against the Court assuming the role of legislator in a matter
calling for actuarial studies and public hearings. If employers
already required to contribute to the State Insurance Fund will still
have to bear the cost of damage suits or get insurance for that
purpose, a major study will be necessary. The issue before us is
more far reaching than the interests of the poor victims and their
families. All workers covered by workmen's compensation and all
employers who employ covered employees are affected. Even as I
have deepest sympathies for the victims, I regret that I am
constrained to dissent from the majority opinion.
Separate Opinions
MELENCIO-HERRERA, J., dissenting:

A
This case involves a complaint for damages for the death of five
employees of PHILEX Mining Corporation under the general
provisions of the Civil Code. The Civil Code itself, however,
provides for its non-applicability to the complaint. It is specifically
provided in Article 2196 of the Code, found in Title XVIII-Damages
that:
COMPENSATION FOR WORKMEN AND OTHER
EMPLOYEES IN CASE OF DEATH, INJURY OR
ILLNESS IS REGULATED BY SPECIAL LAWS.
Compensation and damages are synonymous. In Esguerra vs.
Muoz Palma, etc., et al., 104 Phil. 582, 586, Justice J.B.L. Reyes
had said:
Petitioner also avers that compensation is not
damages. This argument is but a play on words.
The term compensation' is used in the law (Act
3812 and Republic Act 772) in the sense of
indemnity for damages suffered, being awarded for
a personal injury caused or aggravated by or in the
course of employment. ...
By the very provisions of the Civil Code, it is a "special law", not
the Code itself, which has to apply to the complaint involved in the
instant case. That "special law", in reference to the complaint, can
be no other than the Workmen's Compensation
Even assuming, without conceding, that an employee is entitled to
an election of remedies, as the majority rules, both options cannot
be exercised simultaneously, and the exercise of one will preclude
the exercise of the other. The petitioners had already exercised
their option to come under the Workmen's Compensation Act, and
they have already received compensation payable to them under
that Act. Stated differently, the remedy under the Workmen's
Compensation Act had already become a "finished transaction".
There are two considerations why it is believed petitioners should

no longer be allowed to exercise the option to sue under the Civil
Code. In the first place, the proceedings under the Workmen's
Compensation Act have already become the law in regards to" the
"election of remedies", because those proceedings had become a
"finished transaction".
In the second place, it should be plainly equitable that, if a person
entitled to an "election of remedies" makes a first election and
accepts the benefits thereof, he should no longer be allowed to
avail himself of the second option. At the very least, if he wants to
make a second election, in disregard of the first election he has
made, when he makes the second election he should surrender the
benefits he had obtained under the first election, This was not done
in the case before the Court.
B.
'There is full concurrence on my part with the dissenting opinion of
Mr. Justice Gutierrez upholding "the exclusory provision of the
Workmen's Compensation Act." I may further add:
1. The Workmen's Compensation Act (Act No. 3428) was approved
on December 10, 1927 and took effect on June 10, 1928. It was
patterned from Minnesota and Hawaii statutes.
Act No. 3428 was adopted by the Philippine
legislature, in Spanish and some sections of the law
were taken from the statutes of Minnesota and
Hawaii, (Chapter 209 of the Revised Laws of
Hawaii, 1925). [Morabe & Inton, Workmen's
Compensation Act, p. 2]
Under the Workmen's Compensation Act of Hawaii, when the Act is
applicable, the remedy under the Act is exclusive The following is
stated in 1 Schneider Workmen's Compensation Text, pp. 266, 267.
Sec. 112. Hawaii
Statutory Synopsis. The act is compulsory as to
employees in 'all industrial employment' and
employees of the territory and its political

subdivisions. (Sections 7480-7481, S.S., Vol. 1, p.
713.)
Compensation is not payable when injury is due to
employee's willful intention to injure himself or
another or to his intoxication. (Sec. 7482, S.S., p.
713.)
When the act is applicable the remedy thereunder
is exclusive (Sec. 7483, S.S., p. 714.)
2. In providing for exclusiveness of the remedy under our
Workmen's Compensation Act, the Philippine Legislature worded
the first paragraph of Section 5 of the Act as follows:
compensation
shall exclude all other rights and remedies accruing
to the employee, his personal representatives,
dependents or nearest of kin against the employer
under the Civil Code and other laws, because of
said injury (Paragraphing and emphasis supplied)
In regards to the intent of the Legislature under the foregoing
provision:
A cardinal rule in the interpretation of statutes is
that the meaning and intention of the law-making
body must be sought, first of all in the words of the
statute itself, read and considered in their natural,
ordinary, commonly-accepted and most obvious
significations, according to good and approved
usage and without resorting to forced or subtle
construction Courts, therefore, as a rule, cannot
presume that the law-making body does not know
the meaning of words and the rules of grammar.

Consequently, the grammatical reading of a statute
must be presumed to yield its correct sense.
(Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied]
3. The original second paragraph of Section 5 provided:
employment. (Italics supplied)
The use of the word "exclusively is a further confirmation of the
exclusory provision of the Act, subject only to exceptions which
may be provided in the Act itself.
4. It might be mentioned that, within the Act itself, provision is
made for remedies other than within the Act itself. Thus, Section 6,
in part, provides:
SEC. 6. Liability of third parties.-In case an
employee suffers an injury for which compensation
is due under this Act by any other person besides
his employer, it shall be optional with such injured
employee either to claim compensation from his
employer, under this Act, or sue such other person
for damages, in accordance with law; ... (Emphasis
supplied)
If the legislative intent under the first paragraph of Section 5 were
to allow the injured employee to sue his employer under the Civil
Code, the legislator could very easily have formulated the said first
paragraph of Section 5 according to the pattern of Section 6. That
that was not done shows the legislative intent not to allow any
option to an employee to sue the employer under the Civil Code for
injuries compensable under the Act.
5. There should be no question but that the original first paragraph
of Section 5 of the Workmen's Compensation Act, formulated in
1927, provided that an injured worker or employee, or his heirs, if

entitled to compensation under the Act, cannot have independent
recourse neither to the Civil Code nor to any other law relative to
the liability of the employer. After 1927, there were occasions when
the legislator had the opportunity to amend the first paragraph of
Section 5 such that the remedies under the Act would not be
exclusive; yet, the legislator refrained from doing so. That shows
the legislatives continuing intent to maintain the exclusory
provision of the first paragraph of Section 5 unless otherwise
provided in the Act itself.
(a) The original second paragraph of Section 5 provided:
this Act shall apply (exclusively) to injuries received
employment (and all service contracts made in the
manner prescribed in this section be presumed to
include such agreement).
On June 20, 1952, through RA 772, the foregoing second paragraph
was amended with the elimination of the underlined words in
parentheses, and the addition of this sentence at the end of the
paragraph:
occurs, should such law be more favorable to them.
(Emphasis supplied)
It will be seen that, within the Act itself, the exclusory character of
the Act was amended. At that time, if he had so desired, the
legislator could have amended the first paragraph of Section 5 so
that the employee would have the option to sue the employer
under the Act, or under the Civil Code, should the latter be more
favorable to him.
(b) The Workmen's Compensation Act, which took effect in 1927,

grants compensation to an injured employee without regard to the
presence or absence of negligence on the part of the employer.
The compensation is deemed an expense chargeable to the
industry (Murillo vs. Mendoza, 66 Phil. 689 [1938]).
In time, it must have been thought that it was inequitable to have
the amount of compensation, caused by negligence on the part of
the employer, to be the same amount payable when the employer
was not negligent. Based on that thinking, Section 4-A 1 was
included into the Act, on June 20, 1952, through RA 772. Said
Section 4-A increased the compensation payable by 50% in case
there was negligence on the part of the employer. That additional
section evidenced the intent of the legislator not to give an option
to an employee, injured with negligence on the part of the
employer, to sue the latter under the provisions of the Civil Code.
On June 20, 1964, Section 4-A was amended (insubstantially) by RA
4119. The legislator was again given the opportunity to provide,
but he did not, the option to an employee to sue under the Act or
under the Civil Code.
When a Court gives effect to a statute not in accordance with the
intent of the law-maker, the Court is unjustifiably legislating.
It is in view of the foregoing that I vote for affirmation of the trial
Court's dismissal of the Complaint.
GUTIERREZ, JR., J., dissenting:
To grant the petition and allow the victims of industrial accidents to
file damages suits based on torts would be a radical innovation not
only contrary to the express provisions of the Workmen's
Compensation Act but a departure from the principles evolved in
the long history of workmen's compensation. At the very least, it
should be the legislature and not this Court which should remove
the exclusory provision of the Workmen's Compensation Act, a
provision reiterated in the present Labor Code on employees'
compensation.
Workmen's compensation evolved to remedy the evils associated
with the situation in the early years of the industrial revolution
when injured workingmen had to rely on damage suits to get

recompense.
Before workmen's compensation, an injured worker seeking
damages would have to prove in a tort suit that his employer was
either negligent or in bad faith, that his injury was caused by the
employer and not a fellow worker, and that he was not guilty of
contributory negligence. The employer could employ not only his
wealth in defeating the claim for damages but a host of common
law defenses available to him as well. The worker was supposed to
know what he entered into when he accepted employment. As
stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150
Reprint 1030) decided in 1837 "the mere relation of the master and
the servant never can imply an obligation on the part of the master
to take more care of the servant than he may reasonably be
expected to do of himself." By entering into a contract of
employment, the worker was deemed to accept the risks of
employment that he should discover and guard against himself.
The problems associated with the application of the fellow servant
rule, the assumption of risk doctrine, the principle of contributory
negligence, and the many other defenses so easily raised in
protracted damage suits illustrated the need for a system whereby
workers had only to prove the fact of covered employment and the
fact of injury arising from employment in order to be compensated.
The need for a compensation scheme where liability is created
solely by statute and made compulsory and where the element of
fault-either the fault of the employer or the fault of the employeedisregarded became obvious. Another objective was to have
simplified, expeditious, inexpensive, and non-litigious procedures
so that victims of industrial accidents could more readily, if not
automatically, receive compensation for work-related injuries.
Inspite of common law defenses to defeat a claim being
recognized, employers' liability acts were a major step in the
desired direction. However, employers liability legislation proved
inadequate. Legislative reform led to the workmen's compensation.
I cite the above familiar background because workmen's
compensation represents a compromise. In return for the near
certainty of receiving a sum of money fixed by law, the injured
worker gives up the right to subject the employer to a tort suit for
huge amounts of damages. Thus, liability not only disregards the
element of fault but it is also a pre- determined amount based on
the wages of the injured worker and in certain cases, the actual
cost of rehabilitation. The worker does not receive the total
damages for his pain and suffering which he could otherwise claim
in a civil suit. The employer is required to act swiftly on
compensation claims. An administrative agency supervises the
program. And because the overwhelming mass of workingmen are
benefited by the compensation system, individual workers who
may want to sue for big amounts of damages must yield to the
interests of their entire working class.
The nature of the compensation principle is explained as follows:
An appreciation of the nature of the compensation
principle is essential to an understanding of the
acts and the cases interpreting them.
By the turn of the century it was apparent that the
toll of industrial accidents of both the avoidable
and unavoidable variety had become enormous,
and government was faced with the problem of
who was to pay for the human wreckage wrought
by the dangers of modern industry. If the accident
was avoidable and could be attributed to the
carelessness of the employer, existing tort
principles offered some measure of redress. Even
here, however, the woeful inadequacy of the fault
principle was manifest. The uncertainty of the
outcome of torts litigation in court placed the
employee at a substantial disadvantage. So long as
liability depended on fault there could be no
recovery until the finger of blame had been pointed
officially at the employer or his agents. In most
cases both the facts and the law were uncertain.
The witnesses, who were usually fellow workers of
the victim, were torn between friendship or loyalty
to their class, on the one hand, and fear of reprisal
by the employer, on the other. The expense and
delay of litigation often prompted the injured
employee to accept a compromise settlement for a
fraction of the full value of his claim. Even if suit
were successfully prosecuted, a large share of the

proceeds of the judgment were exacted as
contingent fees by counsel. Thus the employer
against whom judgment was cast often paid a
substantial damage bill, while only a part of this
enured to the benefit of the injured employee or his
dependents. The employee's judgment was nearly
always too little and too late.
xxx xxx xxx
Workmen's Compensation rests upon the economic
principle that those persons who enjoy the product
of a business- whether it be in the form of goods or
services- should ultimately bear the cost of the
injuries or deaths that are incident to the
manufacture, preparation and distribution of the
product. ...
xxx xxx xxx
Under this approach the element of personal fault
either disappears entirely or is subordinated to
broader economic considerations. The employer
absorbs the cost of accident loss only initially; it is
expected that this cost will eventually pass down
the stream of commerce in the form of increase
price until it is spread in dilution among the
ultimate consumers. So long as each competing
unit in a given industry is uniformly affected, no
producer can gain any substantial competitive
advantage or suffer any appreciable loss by reason
of the general adoption of the compensation
principle.
In order that the compensation principle may
operate properly and with fairness to all parties it is
essential that the anticipated accident cost be
predictable and that it be fixed at a figure that will
not disrupt too violently the traffic in the product of
the industry affected. Thus predictability and
moderateness of cost are necessary from the broad

economic viewpoint. ....
Compensation, then, differs from the conventional
damage suit in two important respects: Fault on the
part of either employer or employee is eliminated;
and compensation payable according to a definitely
limited schedule is substituted for damages. All
compensation acts alike work these two major
changes, irrespective of how they may differ in
other particulars.
Compensation, when regarded from the viewpoint
of
employer
and
employee
represents
a
compromise in which each party surrenders certain
advantages in order to gain others which are of
more importance both to him and to society. The
employer gives up the immunity he otherwise
would enjoy in cases where he is not at fault, and
the employee surrenders his former right to full
damages and accepts instead a more modest claim
for bare essentials, represented by compensation.
The importance of the compromise character of
compensation cannot be overemphasized. The
statutes vary a great deal with reference to the
proper point of balance. The amount of weekly
compensation payments and the length of the
period during which compensation is to be paid are
matters concerning which the acts differ
considerably.
The
interpretation
of
any
compensation statute will be influenced greatly by
the court's reaction to the basic point of
compromise established in the Act. If the court
feels that the basic compromise unduly favors the
employer, it will be tempted to restore what it
regards as a proper balance by adopting an
interpretation that favors the worker. In this way, a
compensation act drawn in a spirit of extreme
conservatism
may
be
transformed
by
a
sympathetic court into a fairly liberal instrument;
and conversely, an act that greatly favors the
laborer may be so interpreted by the courts that
employers can have little reason to complain. Much

of the unevenness and apparent conflict in
compensation decisions throughout the various
jurisdictions must be attributed to this." (Malone &
Plant,
Workmen's
Compensation
American
Casebook Series, pp. 63-65).
The schedule of compensation, the rates of payments, the
compensable injuries and diseases, the premiums paid by
employers to the present system, the actuarial stability of the trust
fund and many other interrelated parts have all been carefully
studied before the integrated scheme was enacted in to law. We
have a system whose parts must mesh harmonious with one
another if it is to succeed. The basic theory has to be followed.
If this Court disregards this totality of the scheme and in a spirit of
generosity recasts some parts of the system without touching the
related others, the entire structure is endangered. For instance, I
am personally against stretching the law and allowing payment of
compensation for contingencies never envisioned to be
compensable when the law was formulated. Certainly, only harmful
results to the principle of workmen's compensation can arise if
workmen, whom the law allows to receive employment
compensation, can still elect to file damage suits for industrial
accidents. It was precisely for this reason that Section 5 of the
Workmen's Compensation Act, which reads:
other laws because of said injury. ...
Article 173 of the labor Code also provides:
ART. 173. Exclusivenesss of liability.Unless
to the employee his dependents or anyone

the employee or his dependents.
I am against the Court assuming the role of legislator in a matter
calling for actuarial studies and public hearings. If employers
already required to contribute to the State Insurance Fund will still
have to bear the cost of damage suits or get insurance for that
purpose, a major study will be necessary. The issue before us is
more far reaching than the interests of the poor victims and their
families. All workers covered by workmen's compensation and all
employers who employ covered employees are affected. Even as I
have deepest sympathies for the victims, I regret that I am
constrained to dissent from the majority opinion.

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[No. 9966. February 14, 1916.

from a f ashionable residence district into an industrial center. In

Mr. Robinson, city engineer of the city of Manila, testified that

there would be no smoke nuisance. The washing of bottles would

VOL. 33, FEBRUARY 14, 1916.

SAN RAFAEL HOMEOWNERS ASSOCIATION,INC.and JACINTO C.

Act;Certification as to availability of funds and submission of

concern to the petitioners herein who are not themselves bidders,

Nos. L-26833 & L-26834. July 28, 1972.

one, does not violate the said ordinance and is certainly of no

San Rafael Homeowners Association, Inc. vs. City of Manila

MANILA,HON.ANTONIO J. VILLEGAS, MANUEL CUDIAMAT, JOSE

SUPREME COURT REPORTS ANNOTATED

LOPEZ and DR.TOMAS JOSEF,petioners-appellants, vs. THE CITY OF

respondents-appellees. BALUT WOMENS CLUB, INC., DR.SEVERINO

except insofar as the operation of an incinerator may give rise to a

was again published in the Official Gazette dated 1 August 1966. In

(Sec. 3), cities are authorized to undertake public works projects

this notice it was announced that should there be another

financed by city funds without the intervention of the Department

postponement, no further publication in the Official Gazette will be

of Public Works and Communications.

made (and that) interested parties are requested to watch local

dailies for any announcement of postponement. The resetting of

VOL. 46 JULY 28, 1972

the bidding to another date, 15 November 1966, with notice

San Rafael Homeowners Association, Inc. vs. City of Manila

published in a local daily only was substantial compliance with the

Civil Law; Nuisance; Remedial law; Actions; Action to avoid

possible nuisance when prenuture.It is entirely pointless to go

Same; Same; Ordinances; Actions; When suit questioning the

into an academic discussion of the relative merits of the

ability of prospective bidders to meet requirements of an

composting and the incineration methods of garbage and refuse

disposal for purposes of deciding whether or not at this stage

originally submitted, one of which precisely offered an incinerator

prohibition should issue to stop the bidding called for by the

with thermal power generator, were rejected on the ground that

respondents. The instant petitions for that purpose are premature.

none of them qould be self-liquidating as required by Ordinance No.

officials even before the bidding is begun and on a purely

theoretical basis, rule that the bids submitted should not be

requirement, is untenable. In the first place the argument would be

opened, or if opened should not be accepted, because not one of

the plants therein offered to be established would serve the

purpose envisaged and because, if so established, it would so

interest in the bidding per se or in whether or not the plant to be

pollute the environment as to constitute a nuisance. If and when

established will pay for itself. In the second place it ig again

such a result becomes a reality, or at least an imminent threat,

premature to speculate on this particular aspect of the bids.

that will be the time the petitioners may come to court.

SUPREME COURT REPORTS ANNOTATED

law; When postponement of public bidding still valid though not

San Rafael Homeowners Association, Inc. vs. City of Manila

pubUshed in the Official Gazette.The invitation to bid dated 4

APPEAL from the decision of the Court of First Instance of Manila.

appellant San Rafael Homeowners Association, Inc.

Womens Club, Inc., etc., et al.

San Rafael Homeowners Association, Inc. vs. City of Manila

S. M. Artiaga, Jr., B. Dayaw & A. T. Boquiren for respondentsappellees.

equipping and construction of a garbage and refuse disposal

Alejandro De Santos as amicus curiae.

prohibition and mandamus with preliminary injunctionwere filed