G.R. No.

1719

January 23, 1907

M. H. RAKES, plaintiff-appellee, vs. THE ATLANTIC GULF AND PACIFIC COMPANY,

defendant-appellant.
DECISION

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in
the employment of the defendant, was at work transporting iron rails from a barge
in the harbor to the companys yard near the malecon in Manila. Plaintiff claims that
but one hand car was used in this work. The defendant has proved that there were
two immediately following one another, upon which were piled lengthwise seven
rails, each weighing 560 pounds, so that the ends of the rails lay upon two
crosspieces or sills secured to the cars, but without side pieces or guards to prevent
them from slipping off. According to the testimony of the plaintiff, the men were
either in the rear of the car or at its sides. According to that defendant, some of
them were also in front, hauling by a rope. At a certain spot at or near the waters
edge the track sagged, the tie broke, the car either canted or upset, the rails slid off
and caught the plaintiff, breaking his leg, which was afterwards amputated at about
the knee.

This first point for the plaintiff to establish was that the accident happened through
the negligence of the defendant. The detailed description by the defendants
witnesses of the construction and quality of the track proves that if was up to the
general stranded of tramways of that character, the foundation consisting on land of
blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on
the surface of the ground, upon which at a right angle rested stringers of the same
thickness, but from 24 to 30 feet in length. On the across the stringers the parallel
with the blocks were the ties to which the tracks were fastened. After the road
reached the waters edge, the blocks or crosspieces were replaced with pilling,
capped by timbers extending from one side to the other. The tracks were each
about 2 feet wide and the two inside rails of the parallel tracks about 18 inches
apart. It was admitted that there were no side pieces or guards on the car; that
where no ends of the rails of the track met each other and also where the stringers
joined, there were no fish plates. the defendant has not effectually overcome the
plaintiffs proof that the joints between the rails were immediately above the joints
between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the
immediate occasion of the accident, is not clear in the evidence, but is found by the
trial court and is admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the water of the bay
raised by a recent typhoon. The superintendent of the company attributed it to the
giving way of the block laid in the sand. No effort was made to repair the injury at
the time of the occurrence. According to plaintiffs witnesses, a depression of the
track, varying from one half inch to one inch and a half, was thereafter apparent to
the eye, and a fellow workman of the plaintiff swears that the day before the
accident he called the attention of McKenna, the foreman, to it and asked by simply
straightening out the crosspiece, resetting the block under the stringer and
renewing the tie, but otherwise leaving the very same timbers as before. It has not
proven that the company inspected the track after the typhoon or had any proper
system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach
of duty on its part in failing either to properly secure the load on iron to vehicles
transporting it, or to skillfully build the tramway or to maintain it in proper condition,
or to vigilantly inspect and repair the roadway as soon as the depression in it
became visible. It is upon the failure of the defendant to repair the weakened track,
after notice of its condition, that the judge below based his judgment.

This case presents many important matters for our decision, and first among them
is the standard of duty which we shall establish in our jurisprudence on the part of
employees toward employees.

The lack or the harshness of legal rules on this subject has led many countries to
enact designed to put these relations on a fair basis in the form of compensation or
liability laws or the institution of insurance. In the absence of special legislation we
find no difficulty in so applying the general principles of our law as to work out a just
result.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the

provisions of the Penal Code.

And Article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice
would constitute a grave crime, shall be punished.

And Article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any

infraction of regulations, shall cause an injury which, had malice intervened, would
have constituted a crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults
of their servants and representatives is declared to be civil and subsidiary in its
character.

It is contented by the defendant, as its first defense to the action, that the
necessary conclusion from these collated laws is that the remedy for injuries
through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only subsidiarily to
him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the tract, and on his
prosecution a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article
1093 of the Civil Code makes obligations arising from faults or negligence not
punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section
1902 of that chapter reads:

A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.

SEC. 1903. The obligation imposed by the preceding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they
should be responsible.

The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.

xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the
latter may be employed or in the performance of their duties.

xxx

xxx

xxx

The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to
avoid the damages.

As an answer to the argument urged in this particular action it may be sufficient to

point out that nowhere in our general statutes is the employer penalized for failure
to provide or maintain safe appliances for his workmen. His obligation therefore is
one not punished by the law and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be reluctant, under
any conditions, to adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of effect, would
shut out litigants their will from the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution of the proper criminal offender,
and render recovery doubtful by reason of the strict rules of proof prevailing in
criminal actions. Even if these articles had always stood alone, such a construction
would be unnecessary, but clear light is thrown upon their meaning by the

provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento

Criminal), which, though n ever in actual force in these Islands, was formerly given a
suppletory or explanatory effect. Under article 111 of this law, both classes of
action, civil and criminal, might be prosecuted jointly or separately, but while the
penal action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith, unless it
had been waived by the party injured or been expressly reserved by him for civil
proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action
thereunder should be extinguished. These provisions are in harmony with those of
articles 23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citations of
these articles suffices to show that the civil liability was not intended to be merged
in the criminal nor even to be suspended thereby, except as expressly provided by
law. Where an individual is civilly liable for a negligent act or omission, it is not
required that the inured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be

regarded as subsidiary in respect of criminal actions against his employees only
while they are process of prosecution, or in so far as they determinate the existence
of the criminal act from which liability arises, and his obligation under the civil law
and its enforcement in the civil courts is not barred thereby unless by election of the
injured person. Inasmuch as no criminal in question, the provisions of the Penal
Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions survived the
laws that fully regulated it or has been abrogated by the American civil and criminal
procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears
from the briefs before us to have arisen from the interpretation of the words of
article 1093, fault or negligence not punished by law, as applied to the
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It
has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1092 and 1093. More than this,
however, it can not be said to fall within the class of acts unpunished by the law,
the consequences of which are regulated by articles 1902 and 1903 of the Civil

Code. The acts to which these articles are applicable are understood to be those
and growing out of preexisting duties of the parties to one another. But were
relations already formed give rise to duties, whether springing from contract or
quasi contract, then breaches of those duties are subject to articles 1101, 1103, and
1104, of the same code. A typical application of the distinction may be found in the
consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage. while that to
that injured bystander would originate in the negligent act itself. This distinction is
thus clearly set forth by Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be

understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not
formerly bound by any other obligation; or as an incident in the performance of an
obligation; or as already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16
of this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which
we will discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of
negligence may be somewhat inexactly described as contractual and extracontractual, the letter being the culpa aquiliana of the Roman law and not entailing
so strict an obligation as the former. This terminology is unreservedly accepted by
Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the
principle stated is supported be decisions of the supreme court of Spain, among
them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27,
1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)

Spanish Jurisprudencia prior to the adoption of the Working Mens Accident Law of
January 30, 1900, throws uncertain light on the relation between master and
workman. Moved by the quick industrial development of their people, the courts of

France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial

enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon,
corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon yielded
to the principle that the true basis is the contractual obligation of the employer and
employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of the
French Code making the possessor of any object answerable for damage done by it
while in his charge. Our law having no counterpart of this article, applicable to every
kind of object, we need consider neither the theory growing out of it nor that of
professional risk more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case in
the contractual obligation. This contractual obligation, implied from the relation and
perhaps so inherent in its nature to be invariable by the parties, binds the employer
to provide safe appliances for the use of the employee, thus closely corresponding
to English and American Law. On these principles it was the duty of the defendant to
build and to maintain its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect or the other it
failed in its duty, otherwise the accident could not have occurred; consequently the
negligence of the defendant is established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk
incident to his employment and, as such, one assumed by him. It is evident that this
can not be the case if the occurrence was due to the failure to repair the track or to
duly inspect, it for the employee is not presumed to have stipulated that the
employer might neglect his legal duty. Nor may it be excused upon the ground that
the negligence leading to the accident was that of a fellow-servant of the injured
man. It is not apparent to us that the intervention of a third person can relieve the
defendant from the performance of its duty nor impose upon the plaintiff the
consequences of an act or omission not his own. Sua cuique culpa nocet. This
doctrine, known as the fellow-servant, rule, we are not disposed to introduce into
our jurisprudence. Adopted in England by Lord Abinger in the case of Prescott vs.
Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by
the Employers Liability Acts and the Compensation Law. The American States
which applied it appear to be gradually getting rid of it; for instance, the New York

State legislature of 1906 did away with it in respect to railroad companies, and had
in hand a scheme for its total abolition. It has never found place in the civil law of
continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15,
1895, same title, 804. Also more recent instances in Fuzier-Herman, Title
Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its
judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff,
contributing to the accident, to what extent it existed in fact and what legal effect is
to be given it. In two particulars is he charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of
along the boards, either before or behind it.

As to the first point, the depression in the track night indicate either a serious or a
rival difficulty. There is nothing in the evidence to show that the plaintiff did or could
see the displaced timber underneath the sleeper. The claim that he must have done
so is a conclusion drawn from what is assumed to have been a probable condition of
things not before us, rather than a fair inference from the testimony. While the
method of construction may have been known to the men who had helped build the
road, it was otherwise with the plaintiff who had worked at this job less than two
days. A man may easily walk along a railway without perceiving a displacement of
the underlying timbers. The foreman testified that he knew the state of the track on
the day of the accident and that it was then in good condition, and one Danridge, a
witness for the defendant, working on the same job, swore that he never noticed
the depression in the track and never saw any bad place in it. The sagging of the
track this plaintiff did perceive, but that was reported in his hearing to the foreman
who neither promised nor refused to repair it. His lack of caution in continuing at his
work after noticing the slight depression of the rail was not of so gross a nature as
to constitute negligence, barring his recovery under the severe American rule. On
this point we accept the conclusion of the trial judge who found as facts that the
plaintiff did not know the cause of the one rail being lower than then other and it

does not appear in this case that the plaintiff knew before the accident occurred
that the stringers and rails joined in the same place.

Were we not disposed to agree with these findings they would, nevertheless, be
binding upon us, because not plainly and manifestly against the weight of
evidence, as those words of section 497, paragraph 3 of the Code of Civil
Procedure were interpreted by the Supreme Court of the United States in the De la
Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment
below is not so specific. While the judge remarks that the evidence does not justify
the finding that the car was pulled by means of a rope attached to the front end or
to the rails upon it, and further that the circumstances in evidence make it clear
that the persons necessary to operate the car could not walk upon the plank
between the rails and that, therefore, it was necessary for the employees moving it
to get hold upon it as best they could, there is no specific finding upon the
instruction given by the defendant to its employees to walk only upon the planks,
nor upon the necessity of the plaintiff putting himself upon the ties at the side in
order to get hold upon the car. Therefore the findings of the judge below leave the
conduct of the plaintiff in walking along the side of the loaded car, upon the open
ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to
proceed in this way, but were expressly directed by the foreman to do so, both the
officers of the company and three of the workmen testify that there was a general
prohibition frequently made known to all the gang against walking by the side of the
car, and the foreman swears that he repeated the prohibition before the starting of
this particular load. On this contradiction of proof we think that the preponderance
is in favor of the defendants contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a proximate, although
not as its primary cause. This conclusion presents sharply the question, What effect
is to be given such an act of contributory negligence? Does it defeat a recovery,
according to the American rule, or is it to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own
act contributed to his injury, provided his negligence was slight as compared with

that of the defendant, and some others have accepted the theory of proportional
damages, reducing the award to a plaintiff in proportion to his responsibility for the
accident, yet the overwhelming weight of adjudication establishes the principle in
American jurisprudence that any negligence, however slight, on the part of the
person injured which is one of the causes proximately contributing to his injury, bars
his recovery. (English and American Encyclopedia of law, Titles Comparative
Negligence and Contributory Negligence.)

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme
Court of the United States thus authoritatively states the present rule of law:

Although the defendants negligence may have been the primary cause of the
injury complained of, yet an action for such injury can not be maintained if the
proximate and immediate cause of the injury can be traced to the want of ordinary
care and caution in the person injured; subject to this qualification, which has grown
up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W.,
546) that the contributory negligence of the party injured will not defeat the action
if it be shown that the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the injured partys negligence.

There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the
point that he was not negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due to casus fortuitus. Of
the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No.
70), in which a railway employee, standing on a car, was thrown therefrom and
killed by the shock following the backing up of the engine. It was held that the
management of the train and engine being in conformity with proper rules of the
company, showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February,
and the 7th of March, 1902, stated in Alcubillas Index of that year; and of the third
class the decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in which
the breaking down of plaintiffs dam by the logs of the defendant impelled against it
by the Tajo River, was held due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two
bases, one, that the defendant was not negligent, because expressly relieved by
royal order from the common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the deceased in driving
over level ground with unobstructed view in front of a train running at speed, with
the engine whistle blowing was the determining cause of the accident. It is plain
that the train was doing nothing but what it had a right to do and that the only fault
lay with the injured man. His negligence was not contributory, it was sole, and was
of such an efficient nature that without it no catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the
plaintiff sustaining damages was not free from contributory negligence; for instance,
the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in
which the owner of a building was held liable for not furnishing protection to
workmen engaged in hanging out flags, when the latter must have perceived
beforehand the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which
contributed to his injury as one of its causes, though not the principal one, and we
are left to seek the theory of the civil law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that
the carelessness of the victim did not civilly relieve the person without whose fault
the accident could not have happened, but that the contributory negligence of the
injured man had the effect only of reducing the damages. The same principle was
applied in the case of Recullet, November 10, 1888. and that of Laugier of the 11th
of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like
tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895,
Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a practice in
accord with that of France is laid down in many cases collected in the annotations to
article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs.
Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the
court of Kings bench, otherwise known as the court of appeals, the highest authority
in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate

cause of the accident, but entitled him to a reduction of damages. Other similar
cases in the provincial courts have been overruled by appellate tribunals made up
of common law judges drawn from other provinces, who have preferred to impose
uniformally throughout the Dominion the English theory of contributory negligence.
Such decisions throw no light upon the doctrines of the civil law. Elsewhere we find
this practice embodied in legislation; for instance, section 2 of article 2398 of the
Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person
injured or in the part of someone else, the indemnification shall be reduced in the
first case, and in the second case it shall be appropriated in proportion to such fault
or negligence as provided in paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault, but
when that proportion is incapable of ascertainment, he shall share the liability
equally with the person principally responsible. The principle of proportional
damages appears to be also adopted in article 51 of the Swiss Code. Even in the
United States in admiralty jurisdictions, whose principles are derived from the civil
law, common fault in cases of collision have been disposed of not on the ground of
contradictor negligence, but on that of equal loss, the fault of the one part being
offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is
entered in favor of the vessel sustaining the greater loss against the other for the
excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U.
S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The

Spanish Code of Commerce, article 827, makes each vessel for its own damage
when both are the fault; this provision restricted to a single class of the maritime
accidents, falls for short of a recognition of the principle of contributory negligence
as understood in American Law, with which, indeed, it has little in common. This is a
plain from other articles of the same code; for instance, article 829, referring to
articles 826, 827, and 828, which provides: In the cases above mentioned the civil
action of the owner against the person liable for the damage is reserved, as well as
the criminal liability which may appear.

The rule of the common law, a hard and fast one, not adjustable with respects of the
faults of the parties, appears to have grown out the original method of trial by jury,
which rendered difficult a nice balancing of responsibilities and which demanded an
inflexible standard as a safeguard against too ready sympathy for the injured. It was
assumed that an exact measure of several concurring faults was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can
maintain an action against the other, is, not the wrong of the one is set off against
the wrong of the other; it that the law can not measure how much of the damage
suffered is attributable to the plaintiffs own fault. If he were allowed to recover, it
might be that he would obtain from the other party compensation for his own
misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The
law has no scales to determine in such cases whose wrongdoing weighed most in
the compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565,
469.)

Experience with jury trials in negligence cases has brought American courts to
review to relax the vigor of the rule by freely exercising the power of setting aside
verdicts deemed excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial revision of damages by
the courts. It appears to us that the control by the court of the subject matter may
be secured on a moral logical basis and its judgment adjusted with greater nicety to
the merits of the litigants through the practice of offsetting their respective
responsibilities. In the civil law system the desirable end is not deemed beyond the
capacity of its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries
under the stress and counter stress of novel schemers of legislation, we find the
theory of damages laid down in the judgment the most consistent with the history
and the principals of our law in these Islands and with its logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall
be considered immediate causes of the accident. The test is simple. Distinction

must be between the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the victim not entering
into it, independent of it, but contributing under review was the displacement of the
crosspiece or the failure to replace it. this produced the event giving occasion for
damages that is, the shrinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly thorough his act of omission of duty,
the last would have been one of the determining causes of the event or accident,
for which he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should pay for
such injury, less a sum deemed a suitable equivalent for his own imprudence.

ACCEPTING, though with some hesitation, the judgment of the trial court, fixing the
damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars,
United States money, we deduct therefrom 2,500 pesos, the amount fairly
attributable to his negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten
days hereafter let the case be REMANDED to the court below for proper action. SO
ORDERED.
M.H. Rakes was a black man working as a laborer for Atlantic Gulf in the early
1900s. One day, they were working in the companys yard and they were
transporting heavy rails using two cars (karitons?); each car carrying the opposite
ends of the rails. The cars were pulled by rope from the front and other workers are
pushing the cars from behind. There were no side guards installed on the sides of
the cars but the rails were secured by ropes. The track where the cars move were
also weakened by a previous typhoon. It was alleged that Atlantics foreman was
notified of said damage in the tracks but the same were left unrepaired. While the
cars were being moved and when it reached the depressed portion of the track, and
while Rakes was beside one of the cars, the ropes gave in and the rails slipped
thereby crushing his leg and causing it to be amputated. Rakes sued Atlantic Gulf
and he won; he was awarded 5,000 pesos for damages ($2,500).

Atlantic assailed the decision of the lower court alleging that they specifically
ordered their workers to be walking only before or after the cars and not on the side
of the cars because the cars have no side guards to protect them in case the rails
would slip. Atlantic also alleged that Rakes should be suing the foreman as it was

him who neglected to have the tracks repaired; that Rakes himself was negligent for
having known of the depression on the track yet he continued to work.

ISSUE: Whether or not Atlantic is civilly liable.

HELD: Yes. Rakes as per the evidence could not have known of the damage in the
track as it was another employee who swore he notified the foreman about said
damage. Further, his lack of caution in continuing to work is not of a gross nature as
to constitute negligence on his part. On the other hand though, Rakes contributory
negligence can be inferred from the fact that he was on the side of the cars when in
fact there were orders from the company barring workers from standing near the
side of the cars. His disobedient to this order does not bar his recovery of damages
though; the Supreme Court instead reduced the award of damages from 5,000
pesos to 2,500 pesos.

In this case, the SC also elucidated the two kinds of culpa which are:

Culpa as substantive and independent, which on account of its origin arises in an

obligation between two persons not formerly bound by any other obligation; may be
also considered as a real source of an independent obligation (extra-contractual or
culpa aquiliana).
Culpa as an incident in the performance of an obligation which cannot be presumed
to exist without the other, and which increases the liability arising from the already
existing obligation (contractual or culpa contractual).
NOTE: Today the three kinds of negligence are (derived from Roman Law):
Culpa Criminal
Culpa Contractual
Culpa Aquiliana
February 18, 1915
G.R. No. L-9356
C. S. GILCHRIST, plaintiff-appellee,vs.

E. A. CUDDY, ET AL., defendants. JOSE FERNANDEZ ESPEJO and MARIANO

ZALDARRIAGA, appellants.
TRENT, J.:

An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from
a judgment of the Court of First Instance of Iloilo, dismissing their cross-complaint
upon the merits for damages against the plaintiff for the alleged wrongful issuance
of a mandatory and a preliminary injunction.

Upon the application of the appellee an ex parte mandatory injunction was issued
on the 22d of May, 1913, directing the defendant, E. A. Cuddy, to send to the
appellee a certain cinematograph film called "Zigomar" in compliance with an
alleged contract which had been entered into between these two parties, and at the
time an ex parte preliminary injunction was issued restraining the appellants from
receiving and exhibiting in their theater the Zigomar until further orders of the
court. On the 26th of that month the appellants appeared and moved the court to
dissolve the preliminary injunction. When the case was called for trial on August 6,
the appellee moved for the dismissal of the complaint "for the reason that there is
no further necessity for the maintenance of the injunction." The motion was granted
without objection as to Cuddy and denied as to the appellants in order to give them
an opportunity to prove that the injunction were wrongfully issued and the amount
of damages suffered by reason thereof.

The pertinent part of the trial court's findings of fact in this case is as follows:

It appears in this case that Cuddy was the owner of the film Zigomar and that on
the 24th of April he rented it to C. S. Gilchrist for a week for P125, and it was to be
delivered on the 26th of May, the week beginning that day. A few days prior to this
Cuddy sent the money back to Gilchrist, which he had forwarded to him in Manila,
saying that he had made other arrangements with his film. The other arrangements
was the rental to these defendants Espejo and his partner for P350 for the week and
the injunction was asked by Gilchrist against these parties from showing it for the
week beginning the 26th of May.

It appears from the testimony in this case, conclusively, that Cuddy willfully violated
his contract, he being the owner of the picture, with Gilchrist because the

defendants had offered him more for the same period. Mr. Espejo at the trial on the
permanent injunction on the 26th of May admitted that he knew that Cuddy was the
owner of the film. He was trying to get it through his agents Pathe Brothers in
Manila. He is the agent of the same concern in Iloilo. There is in evidence in this
case on the trial today as well as on the 26th of May, letters showing that the Pathe
Brothers in Manila advised this man on two different occasions not to contend for
this film Zigomar because the rental price was prohibitive and assured him also that
he could not get the film for about six weeks. The last of these letters was written
on the 26th of April, which showed conclusively that he knew they had to get this
film from Cuddy and from this letter that the agent in Manila could not get it, but he
made Cuddy an offer himself and Cuddy accepted it because he was paying about
three times as much as he had contracted with Gilchrist for. Therefore, in the
opinion of this court, the defendants failed signally to show the injunction against
the defendant was wrongfully procured.

The appellants duly excepted to the order of the court denying their motion for new
trial on the ground that the evidence was insufficient to justify the decision
rendered. There is lacking from the record before us the deposition of the defendant
Cuddy, which apparently throws light upon a contract entered into between him and
the plaintiff Gilchrist. The contents of this deposition are discussed at length in the
brief of the appellants and an endeavor is made to show that no such contract was
entered into. The trial court, which had this deposition before it, found that there
was a contract between Cuddy and Gilchrist. Not having the deposition in question
before us, it is impossible to say how strongly it militates against this findings of
fact. By a series of decisions we have construed section 143 and 497 (2) of the
Code of Civil Procedure to require the production of all the evidence in this court.
This is the duty of the appellant and, upon his failure to perform it, we decline to
proceed with a review of the evidence. In such cases we rely entirely upon the
pleadings and the findings of fact of the trial court and examine only such assigned
errors as raise questions of law. (Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324; Valle vs.
Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs.
Smith, Bell & Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen & Co.
vs. Matson, Lord & Belser Co., 19 Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep.,
161; Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs. Chaves, 20 Phil. Rep., 147;
Mans vs. Garry, 20 Phil. Rep., 134.) It is true that some of the more recent of these
cases make exceptions to the general rule. Thus, in Olsen & Co. vs. Matson, Lord &
Belser Co., (19 Phil. Rep., 102), that portion of the evidence before us tended to
show that grave injustice might result from a strict reliance upon the findings of fact
contained in the judgment appealed from. We, therefore, gave the appellant an
opportunity to explain the omission. But we required that such explanation must
show a satisfactory reason for the omission, and that the missing portion of the
evidence must be submitted within sixty days or cause shown for failing to do so.

The other cases making exceptions to the rule are based upon peculiar
circumstances which will seldom arise in practice and need not here be set forth, for
the reason that they are wholly inapplicable to the present case. The appellants
would be entitled to indulgence only under the doctrine of the Olsen case. But from
that portion of the record before us, we are not inclined to believe that the missing
deposition would be sufficient to justify us in reversing the findings of fact of the
trial court that the contract in question had been made. There is in the record not
only the positive and detailed testimony of Gilchrist to this effect, but there is also a
letter of apology from Cuddy to Gilchrist in which the former enters into a lengthy
explanation of his reasons for leasing the film to another party. The latter could only
have been called forth by a broken contract with Gilchrist to lease the film to him.
We, therefore, fail to find any reason for overlooking the omission of the defendants
to bring up the missing portion of the evidence and, adhering to the general rule
above referred to, proceed to examine the questions of law raised by the appellants.

From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila,
was the owner of the "Zigomar;" that Gilchrist was the owner of a cinematograph
theater in Iloilo; that in accordance with the terms of the contract entered into
between Cuddy and Gilchrist the former leased to the latter the "Zigomar" for
exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913; and that
Cuddy willfully violate his contract in order that he might accept the appellant's
offer of P350 for the film for the same period. Did the appellants know that they
were inducing Cuddy to violate his contract with a third party when they induced
him to accept the P350? Espejo admitted that he knew that Cuddy was the owner of
the film. He received a letter from his agents in Manila dated April 26, assuring him
that he could not get the film for about six weeks. The arrangement between Cuddy
and the appellants for the exhibition of the film by the latter on the 26th of May
were perfected after April 26, so that the six weeks would include and extend
beyond May 26. The appellants must necessarily have known at the time they made
their offer to Cuddy that the latter had booked or contracted the film for six weeks
from April 26. Therefore, the inevitable conclusion is that the appellants knowingly
induced Cuddy to violate his contract with another person. But there is no specific
finding that the appellants knew the identity of the other party. So we must assume
that they did not know that Gilchrist was the person who had contracted for the
film.

The appellants take the position that if the preliminary injunction had not been
issued against them they could have exhibited the film in their theater for a number
of days beginning May 26, and could have also subleased it to other theater owners
in the nearby towns and, by so doing, could have cleared, during the life of their
contract with Cuddy, the amount claimed as damages. Taking this view of the case,

it will be unnecessary for us to inquire whether the mandatory injunction against

Cuddy was properly issued or not. No question is raised with reference to the
issuance of that injunction.

The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of
the film must be fully recognized and admitted by all. That Cuddy was liable in an
action for damages for the breach of that contract, there can be no doubt. Were the
appellants likewise liable for interfering with the contract between Gilchrist and
Cuddy, they not knowing at the time the identity of one of the contracting parties?
The appellants claim that they had a right to do what they did. The ground upon
which the appellants base this contention is, that there was no valid and binding
contract between Cuddy and Gilchrist and that, therefore, they had a right to
compete with Gilchrist for the lease of the film, the right to compete being a
justification for their acts. If there had been no contract between Cuddy and
Gilchrist this defense would be tenable, but the mere right to compete could not
justify the appellants in intentionally inducing Cuddy to take away the appellee's
contractual rights.

Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right
to enjoy the fruits and advantages of his own enterprise, industry, skill and credit.
He has no right to be free from malicious and wanton interference, disturbance or
annoyance. If disturbance or loss come as a result of competition, or the exercise of
like rights by others, it is damnum absque injuria, unless some superior right by
contract or otherwise is interfered with."

In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling,
J., said: "I think the plaintiff has a cause of action against the defendants, unless the
court is satisfied that, when they interfered with the contractual rights of plaintiff,
the defendants had a sufficient justification for their interference; . . . for it is not a
justification that `they acted bona fide in the best interests of the society of
masons,' i. e., in their own interests. Nor is it enough that `they were not actuated
by improper motives.' I think their sufficient justification for interference with
plaintiff's right must be an equal or superior right in themselves, and that no one
can legally excuse himself to a man, of whose contract he has procured the breach,
on the ground that he acted on a wrong understanding of his own rights, or without
malice, or bona fide, or in the best interests of himself, or even that he acted as an
altruist, seeking only good of another and careless of his own advantage." (Quoted
with approval in Beekman vs. Marsters, 195 Mass., 205.)

It is said that the ground on which the liability of a third party for interfering with a
contract between others rests, is that the interference was malicious. The contrary
view, however, is taken by the Supreme Court of the United States in the case of
Angle vs. Railway Co. (151 U. S., 1). The only motive for interference by the third
party in that case was the desire to make a profit to the injury of one of the parties
of the contract. There was no malice in the case beyond the desire to make an
unlawful gain to the detriment of one of the contracting parties.

In the case at bar the only motive for the interference with the Gilchrist - Cuddy
contract on the part of the appellants was a desire to make a profit by exhibiting the
film in their theater. There was no malice beyond this desire; but this fact does not
relieve them of the legal liability for interfering with that contract and causing its
breach. It is, therefore, clear, under the above authorities, that they were liable to
Gilchrist for the damages caused by their acts, unless they are relieved from such
liability by reason of the fact that they did not know at the time the identity of the
original lessee (Gilchrist) of the film.

The liability of the appellants arises from unlawful acts and not from contractual
obligations, as they were under no such obligations to induce Cuddy to violate his
contract with Gilchrist. So that if the action of Gilchrist had been one for damages, it
would be governed by chapter 2, title 16, book 4 of the Civil Code. Article 1902 of
that code provides that a person who, by act or omission, causes damages to
another when there is fault or negligence, shall be obliged to repair the damage do
done. There is nothing in this article which requires as a condition precedent to the
liability of a tort-feasor that he must know the identity of a person to whom he
causes damages. In fact, the chapter wherein this article is found clearly shows that
no such knowledge is required in order that the injured party may recover for the
damage suffered.

But the fact that the appellants' interference with the Gilchrist contract was
actionable did not of itself entitle Gilchrist to sue out an injunction against them.
The allowance of this remedy must be justified under section 164 of the Code of
Civil Procedure, which specifies the circumstance under which an injunction may
issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil.
Rep., 273):

An injunction is a "special remedy" adopted in that code (Act No. 190 ) from
American practice, and originally borrowed from English legal procedure, which was

there issued by the authority and under the seal of a court of equity, and limited, as
in order cases where equitable relief is sought, to cases where there is no "plain,
adequate, and complete remedy at law," which "will not be granted while the rights
between the parties are undetermined, except in extraordinary cases where
material and irreparable injury will be done," which cannot be compensated in
damages, and where there will be no adequate remedy, and which will not, as a
rule, be granted, to take property out of the possession of one party and put it into
that of another whose title has not been established by law.

We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba
(19 Phil., Rep., 444), and we take this occasion of again affirming it, believing, as we
do, that the indiscriminate use of injunctions should be discouraged.

Does the fact that the appellants did not know at the time the identity of the
original lessee of the film militate against Gilchrist's right to a preliminary injunction,
although the appellant's incurred civil liability for damages for such interference? In
the examination of the adjudicated cases, where in injunctions have been issued to
restrain wrongful interference with contracts by strangers to such contracts, we
have been unable to find any case where this precise question was involved, as in
all of those cases which we have examined, the identity of both of the contracting
parties was known to the tort-feasors. We might say, however, that this fact does
not seem to have a controlling feature in those cases. There is nothing in section
164 of the Code of Civil Procedure which indicates, even remotely, that before an
injunction may issue restraining the wrongful interference with contrast by
strangers, the strangers must know the identity of both parties. It would seem that
this is not essential, as injunctions frequently issue against municipal corporations,
public service corporations, public officers, and others to restrain the commission of
acts which would tend to injuriously affect the rights of person whose identity the
respondents could not possibly have known beforehand. This court has held that in
a proper case injunction will issue at the instance of a private citizen to restrain
ultra vires acts of public officials. (Severino vs. Governor-General, 16 Phil. Rep.,
366.) So we proceed to the determination of the main question of whether or not
the preliminary injunction ought to have been issued in this case.

As a rule, injunctions are denied to those who have an adequate remedy at law.
Where the choice is between the ordinary and the extraordinary processes of law,
and the former are sufficient, the rule will not permit the use of the latter. (In re
Debs, 158 U. S., 564.) If the injury is irreparable, the ordinary process is inadequate.
In Wahle vs. Reinbach (76 Ill., 322), the supreme court of Illinois approved a
definition of the term "irreparable injury" in the following language: "By `irreparable

injury' is not meant such injury as is beyond the possibility of repair, or beyond
possible compensation in damages, nor necessarily great injury or great damage,
but that species of injury, whether great or small, that ought not to be submitted to
on the one hand or inflicted on the other; and, because it is so large on the one
hand, or so small on the other, is of such constant and frequent recurrence that no
fair or reasonable redress can be had therefor in a court of law." (Quoted with
approval in Nashville R. R. Co. vs. McConnell, 82 Fed., 65.)

The case at bar is somewhat novel, as the only contract which was broken was that
between Cuddy and Gilchrist, and the profits of the appellee depended upon the
patronage of the public, for which it is conceded the appellants were at liberty to
complete by all fair does not deter the application of remarked in the case of the
"ticket scalpers" (82 Fed., 65), the novelty of the facts does not deter the
application of equitable principles. This court takes judicial notice of the general
character of a cinematograph or motion-picture theater. It is a quite modern form of
the play house, wherein, by means of an apparatus known as a cinematograph or
cinematograph, a series of views representing closely successive phases of a
moving object, are exhibited in rapid sequence, giving a picture which, owing to the
persistence of vision, appears to the observer to be in continuous motion. (The
Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have lent themselves to
the art of the photographer in this manner have increased enormously in recent
years, as well as have the places where such exhibition are given. The attendance,
and, consequently, the receipts, at one of these cinematograph or motion-picture
theaters depends in no small degree upon the excellence of the photographs, and it
is quite common for the proprietor of the theater to secure an especially attractive
exhibit as his "feature film" and advertise it as such in order to attract the public.
This feature film is depended upon to secure a larger attendance that if its place on
the program were filled by other films of mediocre quality. It is evident that the
failure to exhibit the feature film will reduce the receipts of the theater.

Hence, Gilchrist was facing the immediate prospect of diminished profits by reason
of the fact that the appellants had induced Cuddy to rent to them the film Gilchrist
had counted upon as his feature film. It is quite apparent that to estimate with any
decree of accuracy the damages which Gilchrist would likely suffer from such an
event would be quite difficult if not impossible. If he allowed the appellants to
exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire
of the public to witness the production would have been already satisfied. In this
extremity, the appellee applied for and was granted, as we have indicated, a
mandatory injunction against Cuddy requiring him to deliver the Zigomar to
Gilchrist, and a preliminary injunction against the appellants restraining them from
exhibiting that film in their theater during the weeks he (Gilchrist) had a right to

exhibit it. These injunction saved the plaintiff harmless from damages due to the
unwarranted interference of the defendants, as well as the difficult task which would
have been set for the court of estimating them in case the appellants had been
allowed to carry out their illegal plans. As to whether or not the mandatory
injunction should have been issued, we are not, as we have said, called upon to
determine. So far as the preliminary injunction issued against the appellants is
concerned, which prohibited them from exhibiting the Zigomar during the week
which Gilchrist desired to exhibit it, we are of the opinion that the circumstances
justified the issuance of that injunction in the discretion of the court.

We are not lacking in authority to support our conclusion that the court was justified
in issuing the preliminary injunction against the appellants. Upon the precise
question as to whether injunction will issue to restrain wrongful interference with
contracts by strangers to such contracts, it may be said that courts in the United
States have usually granted such relief where the profits of the injured person are
derived from his contractual relations with a large and indefinite number of
individuals, thus reducing him to the necessity of proving in an action against the
tort-feasor that the latter was responsible in each case for the broken contract, or
else obliging him to institute individual suits against each contracting party and so
exposing him to a multiplicity of suits. Sperry & Hutchinson Co. vs. Mechanics'
Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co. (161
Fed., 219); Sperry & Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases
wherein the respondents were inducing retail merchants to break their contracts
with the company for the sale of the latters' trading stamps. Injunction issued in
each case restraining the respondents from interfering with such contracts.

In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among
other things, said: "One who wrongfully interferes in a contract between others,
and, for the purpose of gain to himself induces one of the parties to break it, is
liable to the party injured thereby; and his continued interference may be ground for
an injunction where the injuries resulting will be irreparable."

In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the
respondents were interfering in a contract for prison labor, and the result would be,
if they were successful, the shutting down of the petitioner's plant for an indefinite
time. The court held that although there was no contention that the respondents
were insolvent, the trial court did not abuse its discretion in granting a preliminary
injunction against the respondents.

In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the
Jamestown Hotel Corporation, conducting a hotel within the grounds of the
Jamestown Exposition, a contract whereby he was made their exclusive agent for
the New England States to solicit patronage for the hotel. The defendant induced
the hotel corporation to break their contract with the plaintiff in order to allow him
to act also as their agent in the New England States. The court held that an action
for damages would not have afforded the plaintiff adequate relief, and that an
injunction was proper compelling the defendant to desist from further interference
with the plaintiff's exclusive contract with the hotel company.

In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171
Fed., 553), the court, while admitting that there are some authorities to the
contrary, held that the current authority in the United States and England is that:

The violation of a legal right committed knowingly is a cause of action, and that it is
a violation of a legal right to interfere with contractual relations recognized by law, if
there be no sufficient justification for the interference. (Quinn vs. Leatham, supra,
510; Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55;
Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y., 82; 23
Am. Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L.
Ed., 171; Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.]
201; 122 Am. St. Rep., 232; South Wales Miners' Fed. vs. Glamorgan Coal Co.,
Appeal Cases, 1905, p. 239.)

See also Nims on Unfair Business Competition, pp. 351- 371.

In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to

prevent a wrongful interference with contract by strangers to such contracts where
the legal remedy is insufficient and the resulting injury is irreparable. And where
there is a malicious interference with lawful and valid contracts a permanent
injunction will ordinarily issue without proof of express malice. So, an injunction may
be issued where the complainant to break their contracts with him by agreeing to
indemnify who breaks his contracts of employment may be adjoined from including
other employees to break their contracts and enter into new contracts with a new
employer of the servant who first broke his contract. But the remedy by injunction
cannot be used to restrain a legitimate competition, though such competition would
involve the violation of a contract. Nor will equity ordinarily enjoin employees who
have quit the service of their employer from attempting by proper argument to

persuade others from taking their places so long as they do not resort to force or
intimidations on obstruct the public thoroughfares."

Beekman vs. Marster, supra, is practically on all fours with the case at bar in that
there was only one contract in question and the profits of the injured person
depended upon the patronage of the public. Hamby & Toomer vs. Georgia Iron &
Coal Co., supra, is also similar to the case at bar in that there was only one contract,
the interference of which was stopped by injunction.

For the foregoing reasons the judgment is affirmed, with costs, against the
appellants.

Arellano, C.J., Torres, Carson and Araullo, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

The court seems to be of the opinion that the action is one for a permanent
injunction; whereas, under my view of the case, it is one for specific performance.
The facts are simple. C. S. Gilchrist, the plaintiff, proprietor of the Eagle Theater of
Iloilo, contracted with E. A. Cuddy, one of the defendants, of Manila, for a film
entitled "Zigomar or Eelskin, 3d series," to be exhibited in his theater in Iloilo during
the week beginning May 26, 1913. Later, the defendants Espejo and Zaldarriaga,
who were also operating a theater in Iloilo, representing Pathe Freres, also obtained
from Cuddy a contract for the exhibition of the film aforesaid in their theater in Iloilo
during the same week.

The plaintiff commenced this action against Cuddy and the defendants Espejo and
Zaldarriaga for the specific performance of the contract with Cuddy. The complaint
prays "that the court, by a mandatory injunction, order Cuddy to deliver, on the
24th of May, 1913, in accordance with the aforesaid contract, the said film
'Zigomar, 3d series, or Eelskin,' to the plaintiff Gilchrist, in accordance with the
terms of the agreement, so that plaintiff can exhibit the same during the last week

beginning May 26, 1913, in the Eagle Theater, in Iloilo; that the court issue a
preliminary injunction against the defendants Espejo and Zaldarriaga prohibiting
them from receiving, exhibiting, or using said film in Iloilo during the last week of
May, 1913, or at any other time prior to the delivery to the plaintiff; that, on the
trial, said injunction be made perpetual and that Cuddy be ordered and commanded
to specifically perform his contract with the plaintiff."

On the filing of the complaint the plaintiff made an application for a mandatory
injunction compelling the defendant Cuddy to deliver to plaintiff the film in question
by mailing it to him from Manila on the 24th of May so that it would reach Iloilo for
exhibition on the 26th; and for a preliminary restraining order against the order two
defendants prohibiting them from receiving or exhibiting the said film prior to its
exhibition by plaintiff.

The court, on this application, entered an order which provided that Cuddy should
"not send said film 'Zigomar, 3d series, or Eelskin,' to the defendants Espejo and
Zaldarriaga and that he should send it to the plaintiff, Gilchrist, on the 24th day of
May, 1913, in the mail for Iloilo," This order was duly served on the defendants,
including Cuddy, in whose possession the film still was, and, in compliance
therewith Cuddy mailed the film to the plaintiff at Iloilo on the 24th of May. The
latter duly received it and exhibited it without molestation during the week
beginning the 26th of May in accordance with the contract which he claimed to
have made with Cuddy.

The defendants Espejo and Zaldarriaga having received due notice of the issuance
of the mandatory injunction and restraining order of the 22d of May, appeared
before the court on the 26th of May and moved that the court vacate so much of
the order as prohibited them from receiving and exhibiting the film. In other words,
while the order of the 22d of May was composed of two parts, one a mandatory
order for immediate specific performance of the plaintiff's contract with the
defendant Cuddy, and the other a preliminary restraining order directed to Espejo
and Zaldarriaga prohibiting them from receiving and exhibiting the film during the
week beginning the 26th of May, their motion of the 26th of May referred
exclusively to the injunction against them and touched in no way that portion of the
order which required the immediate performance by Cuddy of his contract with
Gilchrist. Indeed, the defendants Espejo and Zaldarriaga did not even except to the
order requiring Cuddy to specifically perform his agreement with the plaintiff nor did
they in any way make an objection to or show their disapproval of it. It was not
excepted to or appealed from and is not before this court for review.

The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from
receiving the film was denied on the 26th of May. After the termination of the week
beginning May 26th, and after the exhibition of the film by the plaintiff in
accordance with the alleged contract with Cuddy, the plaintiff came into court and
moved that, in view of the fact that he had already obtained all that he desired to
obtain or could obtain by his action, namely, the exhibition of the film in question
during the week beginning May 26th, there was no reason for continuing it and
moved for its dismissal. To this motion Cuddy consented and the action was
dismissed as to him. But the other defendants objected to the dismissal of the
action on the ground that they desired to present to the court evidence showing the
damages which they had suffered by reason of the issuance of the preliminary
injunction prohibiting them from receiving and exhibiting the film in question during
the week beginning May 26. The court sustained their objection and declined to
dismiss the action as to them, and, on the 8th of August, heard the evidence as to
damages. He denied defendants the relief asked for and dismissed their claim for
damages. They thereupon took an appeal from that order, and that is the appeal
which we have now before us and which is the subject of the opinion of the court
with which I am concurring.

We thus have this strange condition:

An action for specific performance of a contract to deliver a film for exhibition

during a given time. A preliminary mandatory injunction ordering the delivery of the
film in accordance with the contract. The delivery of the film in accordance with the
preliminary mandatory injunction. The actual exhibition of the film during the time
specified in the contract. No objection to the issuance of the mandatory injunction,
to the delivery of the film, or to the ground that the plaintiff had obtained full relief
by means of the so-called preliminary remedy by virtue of which the contract was
actually specifically performed before the action was tried. No objection or
exception to the order requiring the specific performance of the contract.

Under such conditions it is possible for the defendant Espejo and Zaldarriaga to
secure damages for the wrongful issuance of the preliminary injunction directed
against them even though it be admitted that it was erroneously issued and that
there was no ground therefor whatever? It seems to me that it is not. At the time
this action was begun the film, as we have seen, was in the possession of Cuddy
and, while in his possession, he complied with a command of the court to deliver it
to plaintiff. In pursuance of that command he delivered it to plaintiff, who used it

during the time specified in his contract with Cuddy; or, in other words, he made
such use of it as he desired and then returned it to Cuddy. This order and the
delivery of the film under it were made in an action in which the defendants Espejo
and Zaldarriaga were parties, without objection on their part and without objection
or exception to the order. The film having been delivered to defendants' competitor,
the plaintiff, under a decree of the court to which they made no objection and took
no exception and from which they have not appealed, what injury can they show by
reason of the injunction restraining them from making use of the film? If they
themselves, by their conduct, permitted the plaintiff to make it impossible for them
to gain possession of the film and to use it, then the preliminary injunction produced
no injury for the reason that no harm can result from restraining a party from doing
a thing which, without such restraint, it would be impossible for him to do.
Moreover, the order for the delivery of the film to plaintiff was a complete
determination of the rights of the parties to the film which, while the court had no
right to make, nevertheless, was valid and binding on all the parties, none of them
objecting or taking exception thereto. Being a complete determination of the rights
of the parties to the action, it should have been the first point attacked by the
defendants, as it foreclosed them completely and, if left in force, eliminating every
defense. This order was made on May 22d and was not excepted to or appealed
from. On the 8th of August following the defendants appealed from the order
dismissing their claim to damages but the order for the delivery of the film to
plaintiff was final at that time and is now conclusive on this court.

Section 143 of the Code of Civil Procedure, providing for appeals by bill of
exceptions, provides that "upon the rendition of final judgment disposing of the
action, either party shall have the right to perfect a bill of exceptions for a review by
the Supreme Court of all rulings, orders, and judgment made in the action, to which
the party has duly excepted at the time of making such ruling, order, or judgment."
While the order for the delivery of the film to plaintiff was in one sense a preliminary
order, it was in reality a final determination of the rights of the parties to the film, as
it ordered the delivery thereof to plaintiff for his use. If it had been duly excepted to,
its validity could have been attacked in an appeal from the final judgment thereafter
entered in the action. Not having been excepted to as required by the section just
referred to, it became final and conclusive on all the parties to the action, and when,
on the 8th day of August following, the defendants presented their claim for
damages based on the alleged wrongful issuance of a temporary restraining order,
the whole foundation of their claim had disappeared by virtue of the fact that the
execution of the order of the 22d of May had left nothing for them to litigate. The
trial court, on the 8th of August, would have been fully justified in refusing to hear
the defendants on their claim for damages. Their right thereto had been adjudicated
on the 22d of May and that adjudication had been duly put into execution without

protest, objection or exception, and was, therefore, final and conclusive on them on
the 8th of August.

I have presented this concurring opinion in an attempt to prevent confusion, if any,

which might arise from the theory on which the court decides this case. It seems to
me impossible that the action can be one for a permanent injunction. The very
nature of the case demonstrates that a permanent injunction is out of the question.
The only thing that plaintiff desired was to be permitted to use the film for the week
beginning the 26th of May. With the termination of that week his rights expired.
After that time Cuddy was perfectly free to turn the film over to the defendants
Espejo and Zaldarriaga for exhibition at any time. An injunction permanently
prohibiting the defendants from exhibiting the film in Iloilo would have been
unjustifiable, as it was something that plaintiff did not ask and did not want; and
would have been an invasion of the rights of Cuddy as, after the termination of the
week beginning May 26, he was at liberty, under his contract with plaintiff, to rent
the film to the defendants Espejo and Zaldarriaga and permit its exhibition in Iloilo
at any time. The plaintiff never asked to have defendants permanently enjoined
from exhibiting the film in Iloilo and no party to the action has suggested such thing.

The action is one for specific performance purely; and while the court granted
plaintiff rights which should have been granted only after a trial of the action,
nevertheless, such right having been granted before trial and none of the
defendants having made objection or taken exception thereto, and the order
granting them having become final, such order became a final determination of the
action, by reason of the nature of the action itself, the rights of the parties became
thereby finally determined and the defendants Espejo and Zaldarriaga, being
parties to the action, were precluded from further litigation relative to the subject
matter of the controversy.

No damages are claimed by reason of the issuance of the mandatory injunction

under which the film was delivered to plaintiff and used by him during the week
beginning the 26th of May. While the opinion says in the first paragraph that the
action is "for damages against the plaintiff for the alleged wrongful issuance of a
mandatory and preliminary injunction," the opinion also says in a latter portion that
"It will be unnecessary for us to inquire whether the mandatory injunction against
Cuddy was properly issued or not. No question is raised with reference to the
issuance of that injunction;" and still later it is also stated that "as to whether or not
the mandatory injunction should have been issued, we are not, as we have said,
called upon to determine." I repeat that no objection was made by the defendants
to the issuance of the mandatory injunction, no exception was taken to the order on

which it was issued and no appeal has been taken therefrom. That order is now final
and conclusive and was at the time this appeal was taken. That being so, the rights
of the defendants were foreclosed thereby. The defendants Espejo and Zaldarriaga
cannot now be heard to say that they were damaged by the issuance of the
preliminary restraining injunction issued on the same day as the mandatory
injunction.

From what has been said it is clear, it seems to me, that the question of a breach of
contract by inducement, which is substantially the only question discussed and
decided, is not in the case in reality and, in my judgment, should not be touched
upon. Courts will not proceed with a litigation and discuss and decided question
which might possibly be involved in the case when it clearly appears that there
remains nothing about which to litigate, the whole subject matter of the original
action having been settled and the parties having no real controversy to present. At
the time the defendants Espejo and Zaldarriaga offered their claim for damages
arising out of the wrongful issuance of the restraining order, there was nothing
between them and the plaintiff to litigate, the rightfulness of plaintiff's demand
having already been finally adjudicated and determined in the same action.
Gilchrist vs. Cuddy29 Phil. 542
FACTS: Cuddy leased a cinematograph film Zigomar to Gilchrist who owned a
theater in Iloilo for one week beginning May 26, 1913 at an agreed rental of
P125.00. Defendants Espejo and Zaldariaga induced their co-defendant Cuddy to
break his contract of lease with plaintiff Gilchrist by offering Cuddy a rental of
P350.00.
ISSUE: Whether or not such acts of Espejo and Zaldariaga were actionable and if so
under what legal principle.
HELD: The liability of the appellants (Espejo and Zaldariaga) arises from unlawful
acts and not from contractual obligations, as they were under no such
obligation to induce Cuddy to violate his contract with Gilchrist. So that if the action
of Gilchrist had been one for damages, it would be governed by Chapter 2, title 16,
book 4 of the (Spanish) Civil Code. Article 1902 of that code provides that a person
who, by act or omission, causes damage to another when there is fault or
negligence, shall be obliged to repair the damage so done. There is nothing in this
article which requires as a condition precedent to the liability of a tortfeasor that he
must know the identity of a person to whom he causes damage. In fact, the
chapter wherein this article is found clearly shows that no such
knowledge is required in order that the injured party may recover for the damage
suffered.
G.R. No. L-7760

October 1, 1914

E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.

W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.

Bruce, Lawrence, Ross & Block for defendant.

MORELAND, J.:

This is an action brought to recover damages for injuries sustained in an accident

which occurred in Caloocan on the night of August 8, 1909.

The defendant is a corporation engaged in operating an electric street railway in the

city of Manila and its suburbs, including the municipality of Caloocan. The plaintiff's
residence in Caloocan fronts on the street along which defendant's tracks run, so
that to enter his premises from the street plaintiff is obliged to cross defendant's
tracks. On the night mentioned plaintiff drove home in a calesa and in crossing the
tracks to enter his premises the horse stumbled, leaped forward, and fell, causing
the vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle
and caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in
question not only the rails were above-ground, but that the ties upon which the rails
rested projected from one-third to one-half of their depth out of the ground, thus
making the tops of the rails some 5 or 6 inches or more above the level of the
street.

It is admitted that the defendant was negligent in maintaining its tracks as

described, but it is contended that the plaintiff was also negligent in that he was
intoxicated to such an extent at the time of the accident that he was unable to take
care of himself properly and that such intoxication was the primary cause of the
accident.

The trial court held that both parties were negligent, but that the plaintiff's
negligence was not as great as defendant's and under the authority of the case of
Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359) apportioned the damages and awarded
plaintiff a judgment of P1,000.

The question before us is stated by the defendant thus: "Accepting the findings of
the trial court that both plaintiff and defendant were guilty of negligence, the only
question to be considered is whether the negligence of plaintiff contributed t the
'principal occurrence' or 'only to his own injury.' If the former, he cannot recover; if
the latter, the trial court was correct in apportioning the damages."

The questioned as stated by plaintiff is as follows: "The main question at issue is

whether or not the plaintiff was negligent, and, if so, to what extent. If the
negligence of the plaintiff was the primary cause of the accident then, of course, he
cannot recover; if his negligence had nothing to do with the accident but
contributed to his injury, then the court was right in apportioning the damages, but
if there was no negligence on the part of the plaintiff, then he should be awarded
damages adequates to the injury sustained."

In support of the defendant's contention counsel says: "Defendant's negligence was

its failure properly to maintain the track; plaintiff's negligence was his intoxication;
the 'principal occurrence' was plaintiff's fall from his calesa. It seems clear that
plaintiff's intoxication contributed to the fall; if he had been sober, it can hardly be
doubted that he would have crossed the track safely, as he had done a hundred
times before."

While both parties appealed from the decision, the defendant on the ground that it
was not liable and the plaintiff on the ground that the damages were insufficient
according to the evidence, and while the plaintiff made a motion for a new trial
upon the statutory grounds and took proper exception to the denial thereof, thus
conferring upon this court jurisdiction to determine the question of fact,

nevertheless, not all of the testimony taken on the trial, so far as can be gathered
from the record, has been brought to this court. There seems to have been two
hearings, one on the 31st of August and the other on the 28th of September. The
evidence taken on the first hearing is here; that taken on the second is not. Not all
the evidence taken on the hearings being before the court, we must refuse, under
our rules, to consider even that evidence which is here; and, in the decision of this
case, we are, therefore, relegated to the facts stated in the opinion of the court and
the pleadings filed.

A careful reading of the decision of the trial court leads us to the conclusion that
there is nothing in the opinion which sustains the conclusion of the court that the
plaintiff was negligent with reference to the accident which is the basis of this
action. Mere intoxication establish a want of ordinary care. It is but a circumstance
to be considered with the other evidence tending to prove negligence. It is the
general rule that it is immaterial whether a man is drunk or sober if no want of
ordinary care or prudence can be imputed to him, and no greater degree of care is
required than by a sober one. If one's conduct is characterized by a proper degree
of care and prudence, it is immaterial whether he is drunk or sober. (Ward vs.
Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger
vs. Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire
vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific R. R. Co., 40 Mo., 151.,
Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App., 114.)

If intoxication is not in itself negligence, what are the facts found by the trial court
and stated in its opinion upon which may be predicated the finding that the plaintiff
did not use ordinary care and prudence and that the intoxication contributed to the
injury complained of? After showing clearly and forcibly the negligence of the
defendant in leaving its tracks in the condition in which they were on the night of
the injury, the court has the following to say, and it is all that can be found in its
opinion, with reference to the negligence of the plaintiff: "With respect to the
condition in which Mr. Wright was on returning to his house on the night in question,
the testimony of Doctor Kneedler, who was the physician who attended him an hour
after the accident, demonstrates that he was intoxicated. . . . .

If the defendant or its employees were negligent by reason of having left the rails
and a part of the ties uncovered in a street where there is a large amount of travel,
the plaintiff was no less negligent, he not having abstained from his custom of
taking more wine than he could carry without disturbing his judgment and his selfcontrol, he knowing that he had to drive a horse and wagon and to cross railroad

tracks which were to a certain extent dangerous by reason of the rails being
elevated above the level of the street.

If the plaintiff had been prudent on the night in question and had not attempted to
drive his conveyance while in a drunken condition, he would certainly have avoided
the damages which he received, although the company, on its part, was negligent
in maintaining its tracks in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages
resulting to the plaintiff, although the plaintiff, in the judgment of the court,
contributed in greater proportion to the damages that did the defendant.

As is clear from reading the opinion, no facts are stated therein which warrant the
conclusion that the plaintiff was negligent. The conclusion that if he had been sober
he would not have been injured is not warranted by the facts as found. It is
impossible to say that a sober man would not have fallen from the vehicle under the
conditions described. A horse crossing the railroad tracks with not only the rails but
a portion of the ties themselves aboveground, stumbling by reason of the unsure
footing and falling, the vehicle crashing against the rails with such force as to break
a wheel, this might be sufficient to throw a person from the vehicle no matter what
his condition; and to conclude that, under such circumstances, a sober man would
not have fallen while a drunken man did, is to draw a conclusion which enters the
realm of speculation and guesswork.

It having been found that the plaintiff was not negligent, it is unnecessary to discuss
the question presented by the appellant company with reference to the applicability
of the case of Rakes vs. A. G. & P. Co., above; and we do not find facts in the opinion
of the court below which justify a larger verdict than the one found.
In August 1909, E.M. Wright was driving his calesa going home. He had drunk more
wine than he customarily does. Before he could be home, he would have to cross
the railroad tracks by Manila Electric. The tracks were left unmaintained by Manila
Electric so much so that their elevation above the ground is quite high. And while
the calesa was crossing the tracks, the horse tripped and the whole calesa fell down
and Wright was thrown off it. The lower court found that Wright and Manila Electric
were both negligent and as per the ruling in Rakes vs Atlantic Gulf the lower court
apportioned the damage awarded to Wright.
ISSUE:

Whether or not Wrights intoxication is the primary cause of his injuries.

HELD:
No. Manila Electric, and as even ruled by the lower court, argued that had Wright
been sober, he would have not been thrown off the calesa. This is mere guesswork
and is not given credence by the SC because its just a presumption that a sober
man could have avoided such accident. Intoxication is not negligence per se. It is
the general rule that it is immaterial whether a man is drunk or sober if no want of
ordinary care or prudence can be imputed to him, and no greater degree of care is
required than by a sober one. If ones conduct is characterized by a proper degree
of care and prudence, it is immaterial whether he is drunk or sober.
JUSTICE CARSON dissenting:
The records of the case were incomplete. There were two trials in the lower court
and only records of the 1st trial were submitted. And since the SC did not require
such missing records to be submitted, the SC should not have disturbed the finding
of facts by the trial court. The lower court so found that Wright was negligent and
there is nothing that warrants the disturbance of such findings of facts. It should
have been given due credence
FACTS:
August 8, 1909 night time: Wright who was intoxicated drove in his calesa and as
his horse leap forward along the rails of the Manila Electric company and it fell
Wright was thrown and got injured
that the ties upon which the rails rested projected from one-third to one-half of their
depth out of the ground making the tops of the rails some 5 or 6 inches or more
above the level of the street
RTC: both parties were negligent, but that the plaintiff's negligence was not as great
as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co.
apportioned the damages and awarded Wright a judgment of P1,000
ISSUE: W/N Wright's negligence contributed to the 'principal occurrence' or 'only to
his own injury (NOT contributory) thereby he cannot recover
HELD:NO. Affirmed
Mere intoxication is not in itself negligence. It is but a circumstance to be
considered with the other evidence tending to prove negligence. It is the general
rule that it is immaterial whether a man is drunk or sober if no want of ordinary care
or prudence can be imputed to him, and no greater degree of care is required than
by a sober one.

Manila Electric or its employees were negligent by reason of having left the rails and
a part of the ties uncovered in a street where there is a large amount of travel
If the Wright had been prudent on the night in question and had not attempted to
drive his conveyance while in a drunken condition, he would certainly have avoided
the damages which he received
Both parties were negligent and both contributed to the resulting damages,
although the Wright, in the judgment of the court, contributed in greater proportion
to the damages
no facts are stated therein which warrant the conclusion that the Wright was
negligent
It is impossible to say that a sober man would not have fallen from the vehicle
under the conditions described
It having been found that the plaintiff was not negligent, it is unnecessary to discuss
the question presented by the appellant company with reference to the applicability
of the case of Rakes vs. A. G. & P. Co. and we do not find facts in the opinion of the
court below which justify a larger verdict than the one found.
Dissenting Opinion by Carson:
if the case is to be decided on the findings of fact by the trial judge, these findings
sufficiently establish the negligence of Wright
The fact finding of the RTC judge, the fact that there is negligence though not fully
sustained should be assumed that there were evidentiary facts disclosed which
were sufficient to sustain that there is negligence
MIGUEL SAMSON, Plaintiff-Appellee, v. PAULINO DIONISIO and MONORATA FABIAN,
Defendants-Appellants.

SYLLABUS

1. LAW OF WATERS; PUBLIC DOMAIN. No private person has a right to usurp the
possession of an estero, a branch of a river, or a lake of public dominion and use,
unless it is shown that the body of water is entirely within his own property,
otherwise he violates the law which expressly excepts such waters from exclusive
private use.

2. ID.; OBSTRUCTION OF FLOW OF PUBLIC WATERS. Any person who without due
authority constructs a bank or dike, stopping the flow or communication between a
creek or a lake and a river, thereby causing loss and damages to a third party who,
like the rest of the residents is entitled to the use and enjoyment of the stream or
lake, shall be liable to the payment of an indemnity for loss and damages to the
injured party. (Art. 1902, Civil Code.)

DECISION
Miguel Samson, the owner and possessor, for more than twenty years, of a fish
pond in Panasahan, a barrio of Bambang, the location and area of which pond are
described in his written complaint, states that the spouses Paulino Dionisio and
Honorata Fabian, less than a year ago, constructed a dam in substitution of a former
one, thereby closing the southern end of the Magos Creek which empties into the
Bocaue River. In consequence during the rainy season, the water rose for lack of an
outlet, and the neighboring lands, including the plaintiffs fish pond, became
flooded, and fish to the number of about two thousand, valued at P100, escaped;
that the new dike prevents the emptying of the estero and effects considerable
damage during the rainy season by raising the level of the water, for which reason
the value of his fish pond is reduced, its banks and supports weakened, and it is
impossible to keep it in good order. He further alleges that the said creek is a
tributary of the Bocaue River and is of public domain and for the common use of all
the owners of the neighboring estates, among which latter is the plaintiffs fish
pond; therefore, he asked that judgment be entered in his favor, that the
defendants be ordered to reopen at their expense and for public use the mouth of
the Magos Creek emptying into the Bocaue River, to pay P100 as indemnity for
damages, and costs.

The defendants denied all the facts set out in the Complaint, inasmuch as they had
not closed any branch of a river that was of public domain, but had closed a small
creek owned by them and located within land they had acquired by purchase; that
the closing of the said creek caused no injury to the other estates in the locality, it
not, being true that the neighbors were in the habit of traveling in banquillas over
the creek; that said creek had never been in public use; and that the fish pond of
the plaintiff was not injured by the dam constructed upon their own land. As a
special defense, it was alleged that, to the south of the fish pond described in the
first paragraph of the complaint, there exists no branch of the river that might be
utilized for the neighboring fields and fish ponds; that all the owners of land in the
locality have access to the Bocaue River; and that the workmen and laborers of the
rice fields pass over the said river and avail themselves of its waters without the

necessity of using the creek; they therefore asked that the complaint be dismissed
with costs.

By a subsequent writing, they prayed to be allowed to amend their answer, alleging

that they denied the existence of the Magos Creek and that they had closed the
mouth of the branch of the Bocaue River; that the defendants, in constructing mud
hanks for the purpose of retaining the waters within their own lands, did not go
beyond the boundary of their property in the sitio of Magos; that in the said sitio no
branch of the river exists, nor running water of any importance known by the name
of the Magos Creek or lake; therefore, they asked the dismissal of the complaint
with the costs against the plaintiff.

Evidence was adduced by the plaintiff and his exhibits were made of record; the
court below entered judgment on the 28th of June, 1906, and ordered that the
plaintiff recover from the defendants an indenmity of P150, and costs; that the
defendants, within sixty days of the receipt of a certified copy of the decision,
remove or cause to be removed the entire dam erected near the mouth of said
creek at the Bocaue River, prohibiting them forevel from constructing any dam or
barrier between the said creek and the river, which should impede the free and
natural course of the waters and the passage of fish and bancas; and that, in case
the defendants failed to comply with the order of removal or any injunction
contained therein, the plaintiff should immediately communicate such failure to the
court below in order that it might proceed in accordance with law and justice. The
defendants excepted to this decision and moved for a new trial, submitting an
affidavit subscribed by Paulino Dionisio, regarding an accident that happened to him
on the day of the trial, but the judge below, in view of the proceedings, at the
prayer of the plaintiff, and for the reasons stated in his order, overruled the said
motion with the costs against the defendant.

As will be seen, the matter at issue is the question of the ownership of a creek or
pond which receives its waters from the Bocaue River. According to the defendants,
the said creek is situated within their own land, for which reason they believed they
were entitled to construct dams at the entrance of the creek; but the plaintiff states
that it is public property, and in common use by the residents of that locality.

Article 339 of the Civil Code provides that:jgc:chanrobles.com.ph

"Property of public ownership is:jgc:chanrobles.com.ph

"1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and
bridges constructed by the State, and banks, shores, roadsteads, and that of a
similar character."cralaw virtua1aw library

Article 314 of said code also prescribes that:jgc:chanrobles.com.ph

"Property for public use in provinces and in towns comprises the provincial and town
roads, the squares, streets, fountains, and public waters, the promenades, and
public works of General service supported by the said towns or provinces"

Article 407 of said code provides:jgc:chanrobles.com.ph

"The following are of public ownership:jgc:chanrobles.com.ph

"1. Rivers and their natural beds.

"4. Lakes and ponds formed by nature on public lands and their beds."cralaw
virtua1aw library

The provisions of the above articles are substantially in conformity with the Law of
Waters of the 3d of August, 1866, the only one extended to these Islands, which
was published in the Gaceta de Manila of the 21th of September, 1871. It should be
noted that, in classifying such properties, the code only mentions some of them by
way of examples, as for instance, paragraph 1 of article 339 says "and that of a
similar character."cralaw virtua1aw library

It is proven by the record, and furthermore admitted by the defendants, that twice
in succession, at an interval of a few months, they closed the southern end of the
creek called Magos where it communicates with the Bocaue River, and removed or
destroyed the dam or mud bank which at one time was further up the creek toward
the east side of its mouth, substituting another dike of the same material further out
toward the river and in a line with its eastern bank; the fish pond of the defendants
has been widened in the direction of the river, as may be seen from the plans Nos. 1
and 2, attached to the record.

This is not a question of the violation of the right of easement over the Magos
Creek, nor does it appear that any question in such sense has been raised in this
litigation, notwithstanding the fact that in the brief of the appellants an attempt is
made to turn the matter into an action upon an easement of waters.

The claim formulated in the complaint is restricted t the usurpation by a private

individual of a creek or branch of a river of public ownership and utilized in common
by the residents of the barrio of Bambang and the town of Bocaue, and to the loss
and damage caused to the plaintiff on account of the dike or dam erected by the
defendants, obstructing the flow of water between the Bocaue River and the said
creek.

In the present cause it has not been proved that the Magos Creek formed a part of
the land and fish pond of the defendants, and in spite of their denial that the said
creek was located at the side of their land and fish pond the evidence furnished by
the plaintiff clearly contradicts them and shows the contrary, in an unquestionable
manner, that is, that the Magos Creek existed in said locality and that it was utilized
by the public in general; that it was a passage for the public traveling in small craft
to and from the lands alongside the river; that fish passed in and out by it; and that
through the said creek the waters coming from the adjoining estates during the
rainy season flowed into the river until it was closed by the appellants.

Hence, upon the theory already proven, that the creek in question was of public
ownership, and not the property of the defendants, it is clear that the latter had no
right whatever to construct the said dams, closing its entrance into and
communication with the Bocaue River; and inasmuch as they did it without any
authority and to the loss and prejudice of the plaintiff, they are under obligation to

indemnify the latter for the reasons alleged by him in his complaint, in accordance
with the provisions of article 1902 of the Civil Code.

In view of the foregoing, and for the reasons stated in the judgment appealed from,
it is our opinion that the said judgment should be and is hereby affirmed, with the
costs against the appellants; provided, however, that the indemnity to be paid to
the plaintiff shall be but P100 as demanded by him in his complaint. So ordered.