LUCIO ALGARRA, PLAINTIFF AND APPELLANT, VS. SIXTO SANDEJAS, DEFENDANT AND APPELLEE.

This is a civil action for personal injuries received from a collision with
the defendant’s automobile due to the negligence of the defendant, who was
driving the car. The negligence of the defendant is not questioned and this
case involves only the amount of damages which should be allowed.

As a result of the injuries received, plaintiff was obliged to spend ten days
in the hospital, during the first four or five of which he could not leave his
bed. After being discharged from the hospital, he received medical attention
from a private practitioner for several days. The latter testified that after
the last treatment the plaintiff described himself as being well. On the trial
the plaintiff testified that he had done no work since the accident, which
occurred on July 9, 1912, and that he was not yet entirely recovered. Plaintiff
testified that his earning capicity was P50 per month. It is not clear at what
time plaintiff became entirely well again, but as the doctor to whom he
described himself as being well stated that this was about the last of July, and
the trial took place September 19, two months’ pay would seem sufficient for the
actual time lost from his work. Plaintiff further testified that he paid the
doctor P8 and expended P2 for medicines. This expense, amounting in all to P110,
should also be allowed.

Plaintiff sold the products of a distillery on a 10 per cent commission and
made an average of P50 per month. He had about twenty regular customers who, it
seems, purchased in small quantities, necessitating regular and frequent
deliveries. Since the accident his wife had done something in a small way to
keep up this business but the total orders taken by her would not net them over
P15. He lost all his regular customers but four, other agents filling their
orders since his accident. It took him about four years to build up the business
he had at the time of the accident, and he could not say how long it would take
him to get back the business he had lost.

Under this state of facts, the lower court, while recognizing the justness of
the claim, refused to allow him anything for injury to his business due to his
enforced absence there from, on the ground that the doctrine of Marcelo
vs. Velasco (11 Phil. Rep., 277) is opposed to such allowance. The trial
court’s opinion appears to be based upon the following quotation from Viada
(vol. 1, p. 539), quoted in that decision: “* * * with regard to the offense of
lesiones, for example, the civil liability is almost always limited to
indemnity for damage to the party aggrieved for the time during which he was
incapacitated for work; * * *”

This statement, however, derives its force, not from any provision of the law
applicable to lesiones, but is a mere deduction from the operation of
the law upon the cases arising under it. That the interpretation placed upon
this statement of Viada by the lower court is either not correct, or that it
does not apply to actions for personal injuries under article 1902 of the Civil
Code, is apparent from the decisions of the supreme court of Spain of January 8,
1906, January 15, 1902, and October 19, 1909, to which a more extended reference
will be made further on in this opinion. There is nothing said in the decision
in question prohibiting the allowance of compensatory damages, nor does there
seem to be anything contained therein opposed to the allowance of such damages
occurring subsequent to the institution of the action. In fact, it appears from
the following quotation that the court would have been disposed to consider
favorably the plaintiff’s claim for injury to her business had the evidence
presented it.

“No evidence was then offered by the plaintiff to show that this slight
lameness in any way interfered with the conduct of her business or that she
could make any less amount therein than she could make if she did not suffer
from this defect. The court, therefore, did not err in allowing her no further
damages on this account, because there was no evidence that she had suffered
any.”

The alleged damages which the court refused to entertain in that case and
under the discussion of which appears the above quotation from Viada, were for
pain and suffering the plaintiff may have experienced. The court said: “For the
profits which the plaintiff failed to obtain, spoken of in the latter part of
this article, the plaintiff was allowed to recover, and the question is, whether
the value of the loss which she suffered can be extended to pain which she
experienced by reason of the accident.”

Actions for damages such as the case at bar are based upon article 1902 of
the Civil Code, which reads as follows:

“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.”

Of this article, the supreme court of Spain, in its decision of February 7,
1900, in considering the indemnity imposed by it, said: “It is undisputed that
said reparation, to be efficacious and substantial, must rationally include the
generic idea of complete indemnity, such as is defined and explained in article
1106 of the said (Civil) Code.”

Articles 1106 and 1107 of the Civil Code read as follows:

“1106. Indemnity for losses and damages includes not only the amount of the
loss which may have been suffered, but also that of the profit which the
creditor may have failed to realize, reserving the provisions contained in the
following articles.

“1107. The losses and damages for which a debtor in good faith is liable, are
those foreseen or which may have been foreseen, at the time of constituting the
obligation, and which may be a necessary consequence of its
nonfulfillment.

“In case of fraud, the debtor shall be liable for all those which clearly may
originate from the nonfulfillment of the obligation.”

Fraud is not an element of the present case, and we are not therefore
concerned with it. The liability of the present defendant includes only those
damages which were “fore-seen or may have been foreseen” at the time of the
accident, and which are the necessary and immediate consequences of his fault.
In discussing the question of damages under the civil law, Gutierrez (vol. 4,
pp. 64, 65) says:

“In the impossibility of laying down a surer rule, the Code understands known
damages to be those which in the prudent discernment of the judge merit such a
qualification, although their consequences may not be direct, immediate,
inevitable.

“If it is a question of losses occasioned through other causes, except fraud,
and the contracting parties have not covenanted any indemnity for the case of
nonfulfillment, then the reparation of the losses or damages shall only comprise
those that are the necessary and immediate consequence of that fault. This rule
may not be very clear, but is the only one possible in a matter more of the
domain of prudence than of law.”

In its decision of April 18, 1901, the supreme court of Spain said: “Neither
were the errors incurred that are mentioned in the third assignment, since the
indemnity for damages is understood to apply to those caused the complainant
directly, and not to those which, indirectly and through more or less logical
deductions, may affect the interests of the Ayuntamiento de Viana, as
occurs in the present case where the increase of wealth concerns not only the
Ayuntamiento but also the province and the state, yet, not on this
account does any action lie in their behalf as derived from the contracts with
Urioste.”

This doctrine is also affirmed in the more recent decision of March 18,1909,
in the following words: “For the calculation of the damages claimed, it is
necessary, pursuant to the provisions of article 924 of the Law of Civil
Procedure, to give due regard to the nature of the obligation that was
unfulfilled and to the reasonable consequences of its non-fulfillment, because
the conviction sought can be imposed only when there exists a natural and true
relation between such nonfulfillment and the damages, whatever reason there may
be to demand them on another account.”

In the case of Garcia Gamo vs. Compania Madrilena de Alumbrado, etc.
(101 Jurisp., 662), it appeared that an employee of the defendant company whose
duty it was to clean and light the street lamps left a stepladder leaning
against a tree which stood in a public promenade. The seven-year old son of the
plaintiff climbed the tree by means of the ladder, and while endeavoring to cut
some branches fell to the ground, sustaining severe injuries which eventually
caused his death. The plaintiff lost in the lower courts and on appeal to the
supreme court the decision of those lower courts was affirmed with the following
statement:

“That in this sense—aside from the fitness of the judgment appealed from,
inasmuch as the acquittal of the defendant party resolves all the issues argued
at the trial, if no counterclaim was made—the assignments of error in the appeal
cannot be sustained, because, while the act of placing the stepladder against
the tree in the manner and for the purposes aforestated, was not permissible it
was regularly allowed by the local authorities, and that fact did not precisely
determine the injury, which was due first to the abandonment of the child by his
parents and secondly to his own imprudence, according to the findings of the
trial court, not legally objected to in the appeal; so it is beyond peradventure
that the circumstances necessary for imposing the obligations arising from guilt
or negligence do riot concur in the present case.”

The court here simply held that the injury to the child could not be
considered as the probable consequence of an injury which could have been
foreseen from the act of the company’s employee in leaving the ladder leaning
against the tree.

In De Alba vs. Sociedad Anonima de Tranvias
(102 Jurisp., 928), a passenger was standing on the platform of a street car
while it was in motion when, on rounding a curve, the plaintiff fell off and
under the car, thereby sustaining severe injuries which took several months to
heal. He was not allowed to recover in the lower courts and on appeal the
supreme court sustained the inferior tribunals saying:

“Whereas, considering the circumstances of the accident that happened to D.
Antonio Morales de Alba, such as they were held by the trial court to have been
proved, the evidence does not disclose that any liability whatever in the said
accident, for acts or omissions, may be charged against the employees of the
street car, as being guilty through fault or negligence, since it was shown that
the car was not traveling at any unusual speed nor was this increased on
rounding the curve, but that the accident was solely due to the fact that the
car in turning made a movement which caused the plaintiff to lose his balance;
and whereas no act whatever has been proved of any violation of the regulations,
nor can it be required of street-car employees, who have to attend to their
respective duties, that they should foresee and be on the alert to notify the
possibility of danger when not greater than that which is more or less inherent
to this mode of travel; therefore the appeal can not be upheld, and with all the
more reason since the passenger who takes the risk of travelling on the
platform, especially when there is an unoccupied seat in the car, should be on
his guard against a contingency so natural as that of losing his balance to a
greater or less extent when the car rounds a curve.”

In Crespo vs. Garcia {112 Jurisp., 796), the plaintiff, a servant
woman, 72 years old, was injured in the performance of her duties by the sudden
and unexpected failure of the upper floor of a house in which she was working.
The owner and the architect of the building were made defendants and after due
trial it was held that no responsibility attached to them for the failure of the
floor, consequently the plaintiff was not allowed to recover. On her appeal to
the supreme court that tribunal said:

“Whereas the trial court held, in view of all the evidence adduced, including
the expert and other testimony, that the act which occasioned the injury
suffered by Dona Maria Alonso Crespo, was accidental, without fault of anybody,
and consequently fortuitous, and that, in so considering it to absolve the
defendants, he did not incur the second error assigned on the appeal, because,
without overlooking the import and legal value of the affidavit adduced at the
trial, he held that the defendants in their conduct were not liable for any
omission that might constitute such fault or negligence as would oblige them to
indemnify the plaintiff; and to support the error assigned no legal provision
whatever was cited such as would require a different finding, nor was any other
authentic document produced than the aforesaid affidavit which contained an
account of the ocular inspection and the expert’s report, which, as well as the
testimony of the witnesses, the trial court was able to pass upon in accordance
with its exclusive power—all points of proof which do not reveal any mistake on
the part of the judge, whose opinion the appellant would substitute with his own
by a different interpretation.”

These authorities are sufficient to show that liability for acts ex
delicto under the Civil Code is precisely that embraced within the
“proximate cause” of the Anglo-Saxon law of torts.

“The general rule, as frequently stated, is that in order that an act or
omission may be the proximate cause of an injury, the injury must be the natural
and probable consequence of the act or omission and such as might have been
foreseen by an ordinarily responsible and prudent man, in the light of the
attendant circumstances, as likely to result therefrom * * *

“According to the later authorities foreseeableness, as an element of
proximate cause, does not depend upon whether an ordinarily reasonable and
prudent man would or ought in advance to have anticipated the result which
happened, but whether, if such result and the chain of events connecting it with
the act complained of had occurred to his mind, the same would have seemed
natural and probable and according to the ordinary course of nature. Thus, as
said in one case, ‘A person guilty of negligence, or an unlawful act, should be
held responsible for all the consequences which a prudent and experienced man,
fully acquainted with all the circumstances which in fact existed, would at the
time of the negligent or unlawful act have thought reasonable to follow, if they
had occurred to his mind.’ (Wabash R. etc. Co. vs. Coker, 81 Ill. App.
660, 664; Cooley on Torts, sec. 15.)”

“The view which I shall endeavor to justify is that, for the purpose of civil
liability, those consequences, and those only, are deemed ‘immediate,’
‘proximate,’ or, to anticipate a little, ‘natural and probable,’ which a person
of average competence and knowledge, being in the like case with the person
whose conduct is complained of, and having the like opportunities of
observation, might be expected to foresee as likely to follow upon such conduct.
This is only where the particular consequence is not known to have been intended
or foreseen by the actor. If proof of that be forth coming, whether the
consequence was ‘immediate’ or not does not matter. That which a man actually
foresees is to him, at all events, natural and probable.” (Webb’s Pollock on
Torts, p. 32.)

There is another line Of definitions which have for their basis “the natural
and probable consequences” or “the direct and immediate consequences” of the
defendant’s act. (Joyce on Damages, sec. 82.)

It will be observed that the supreme court of Spain, in the above decisions,
has rather inclined to this line of definitions of what results a defendant is
liable for as a consequence of his wrongful acts, while the Civil Code uses the
phraseology, “those foreseen or which may have been foreseen.” From either
viewpoint the method of arriving at the liability of the wrongdoer under the
Civil Code and under the Anglo Saxon law is the same. Such was the holding of
this court in Taylor vs. M. E. R. & L. Co. (16 Phil. Rep., 8,
15):

“We agree with counsel for appellant that under the Civil Code, as under the
generally accepted doctrine in the United States, the plaintiff in an action
such as that under consideration, in order to establish his right to a recovery,
must establish by competent evidence:

“(1) Damages to the plaintiff.

“(2) Negligence by act or omission of which defendant personally, or some
person for whose acts it must respond, was guilty.

” (3) The connection of cause and effect between the negligence and the
damages.

“These propositions are, of course, elementary, and do not admit of
discussion, the real difficulty arising in the application of these principles
to the particular facts developed in the case under
consideration.”

Parenthetically it may be said that we are not now dealing with the doctrine
of comparative (contributory) negligence which was established by Rakes
vs. A. G. & P. Co. (7 Phil. Rep., 359), and Eades vs. A.
G. & P. Co. (19 Phil. Rep., 561.)

The rules for the measure of damages, once that liability is
determined, are, however, somewhat different. The Civil Code requires that the
defendant repair the damage caused by his fault or negligence. No distinction is
made therein between damage caused maliciously and intentionally and damages
caused through mere negligence in so far as the civil liability of the wrongdoer
is concerned. Nor is the defendant required to do more than repair the damage
done, or, in other words, to put the plaintiff in the same position, so far as
pecuniary compensation can do so, that he would have been in had the damage not
been inflicted. In this respect there is a notable difference between the two
systems.

Under the Anglo-Saxon law, when malicious or willful intention to cause the
damage is an element of the defendant’s act, it is quite generally regarded as
an aggravating circumstance for which the plaintiff is entitled to more than
mere compensation for the inj ury inflicted. These are called exemplary or
punitive damages, and no provision is made for them in article 1902 of the Civil
Code.

Again, it is quite common under the English system to award what is called
nominal damages where there is only a technical violation of the plaintiff’s
rights resulting in no substantial injury to him. This branch of damages is also
unknown under the Civil Code. If no damages have actually occurred there can be
none to repair and the doctrine of nominal damages 1s not applicable. Thus it
has been often held by the supreme court of Spain that a mere noncompliance with
the obligations of a contract is not sufficient to sustain a judgment for
damage’s. It must be shown that damages actually existed. (Decision of February
10,1904.)

Again, in its decision of January 9, 1897, that high tribunal said that as a
logical consequence of the requirements of articles 1101, 1718, and 1902 that he
who causes damages must repair them, their existence must be proved.

In at least one case decided by this court we held in effect that
nominal-damages could not be allowed. (Mercado vs. Abangan, 10 Phil.
Rep., 676.)

“The purpose of the law in awarding actual damages is to repair the wrong
that has been done, to compensate for the injury inflicted, and not to impose a
penalty. Actual damages are not dependent on nor graded by the intent with which
the wrongful act is done.” (Field vs. Munster, 11 Tex. Civ. Appl., 341,
32 S. W., 417.) “The words ‘actual damages’ shall be construed to include all
damages that the plaintiff may show he has suffered in respect to his property,
business, trade, profession, or occupation, and no other damages whatever.”
(Gen. Stat. Minn., 1894, sec. 5418.) “Actual damages are compensatory only.”
(Lord, Owen & Co. vs. Wood, 120 Iowa, 303, 94 N. W., 842.) ” ‘Compensatory
damages’ as indicated by the word employed to characterize them, simply make
good or replace the loss caused by the wrong. They proceed from a sense of
natural justice, and are designed to repair that of which one has been deprived
by the wrong of another.” (Reid vs. Ter williger, 116 N. Y., 530; 22 N.
E., 1091.) ” ‘Compensatory damages’ are such as are awarded to compensate the
injured party for injury caused by the wrong, and must be only such as make just
and fair compensation, and are due when the wrong is established, whether it was
committed maliciously—that is, with evil intention—or not.” (Wimer vs.
Allbaugh, 78 Iowa, 79; 42 N. W., 587; 16 Am. St. Rep., 422.)

Finally, this court has itself held that actual damages are the extent of the
recovery allowed to the plaintiff. In Marker vs. Garcia (5 Phil. Rep.,
557), which was an action for damages for breach of contract, this court said:
“Except in those cases where the law authorizes the imposition of punitive or
exemplary damages, the party claiming damages must establish by competent
evidence the amount of such damages, and courts can not give judgment for a
greater amount than those actually proven.”

We are of the opinion that the requirements of article 1902, that the
defendant repair the damage done can only mean what is set forth in the above
definitions. Anything short of that would not repair the damages and anything
beyond that would be excessive. Actual compensatory damages are those allowed
for tortious wrongs under the Civil Code; nothing more, nothing less.

According to the text of article 1106 of the Civil Code, which, according to
the decision of February 7, 1900 (referred to above), is the generic conception
of what article 1902 embraces, actual damages include not only loss already
suffered, but loss of profits which may not have been realized. The allowance of
loss of prospective profits could hardly be more explicitly provided for. But it
may may not be amiss to refer to the decisions of the supreme court of Spain for
its interpretation of this article. The decisions are numerous upon this point.
The decision of February 12, 1896, as epitomized by Sanchez Roman (vol. 1, p.
281), interprets article 1106 as follows:

“Pursuant to articles 1106 and 1107 of the same Code, which govern in general
the matter of indemnity due for the nonfulfillment of obligations, the indemnity
comprises, not only the value of the loss suffered, but also that of the
prospective profit that was not realized, and the obligation of the debtor in
good faith is limited to such losses and damages as were foreseen or might have
been foreseen at the time the obligation was incurred and which are a necessary
consequence of his failure of fulfillment. Losses and damages under such
limitations and frustrated profits must, therefore, be proved directly by means
of the evidence the law authorizes.”

The decision of January 8, 1906 (published in 14 Jurisp. del C6digo Civil,
516) had to do with the following case: The plaintiff, a painter by occupation;
was engaged to paint the poles from which were suspended the trolley wires of a
traction company. While at work on February 8, 1901, the electric current was
negligently turned on by the company, whereby plaintiff received a severe shock,
causing him to fall to the ground. Plaintiff sustained severe injuries which
took several months to heal and his right arm was permanently disabled by the
accident. The age of the plaintiff is not stated. His daily wage was four
pesetas. He was awarded 25,000 pesetas by the trial court and
this judgment was affirmed on appeal to the supreme court. This was equivalent
to approximately twenty years’ salary. In its decision of January 15, 1902
(published in 10 Jurisp. del Codigo Civil, 260), the supreme court had the
following case under consideration: Plaintiff’s son was a travelling salesman 48
years of age, who received an annual salary of 2,500 pesetas and expenses. While
travelling on defendant’s train an accident occurred which caused his death. The
accident was held to be due to the failure of the defendant company to keep its
track and roadbed in good repair. Plaintiff was allowed 35,000 pesetas
for the death of her son. This would be equivalent to about fourteen years’
salary.

In the case dated October 19, 1909 (published in 116 Jurisp. del Codigo
Civil, 120), plaintiff was suing for the death of his son caused from injuries
inflicted by the defendant’s bull while plaintiff and his son were travelling
along a public road. The age of the son is not given. Plaintiff was awarded
3,000 pesetas damages.

In each of the above-mentioned cases the supreme court refused to pass on the
amount of damages which had been awarded. It appears to be the unvarying rule of
the supreme court of Spain to accept the amount of damages awarded by trial
courts, its only inquiry being as to whether damages have actually occurred as
the result of the defendant’s fault or negligence. (Decision of July 5, 1909.)
The reason why the supreme court of Spain refuses to consider the amount of
damages awarded is to be found in the great importance attached by it to the
provisions of the Ley de Enjuiciamiento Civil, articles 659 and 1692,
No. 7. In its auto of March. 16, 1900 (published in 8 Jurisp. del Codigo Civil,
503), the following comment is made on these articles:

“As this supreme court has repeatedly held, the weight given by the trial
judge to the testimony, with good discernment or otherwise, can not be a matter
for reversal, not even with the support of No. 7 of article 1692 of the Ley
de Enjuiciamiento Civil, as it is exclusively submitted to him, pursuant to
the provisions of article 659 of the said law and article 1248 of the
Code.”

The practice of this court, under our Code of Civil Procedure, does not
permit of our going to such lengths in sustaining the findings of fact in trial
courts. We have repeatedly held that due weight will be given in this court to
the findings of fact by trial courts by reason of their opportunities to see and
hear the witnesses testify, note their demeanor and bearing upon the stand,
etc., but when the decision of the trial court, after permitting due allowance
for its superior advantages in weighing the evidence of the case, appears to us
to be against the fair preponderance of that evidence, it is our duty to reverse
or set aside the findings of fact made by the trial court and render such
judgment as the facts of the same seem to us to warrant. (Code Civ. Proc, sec.
496.) We need go to no other branch of law than that of damages to support this
statement. In the following cases the damages awarded by the lower court were
reduced after a consideration of the evidece: Sparrevohn vs. Fisher (2
Phil. Rep., 676); Campbell & Go-Tauco vs. Behn, Meyer & Co. (3
Phil. Rep., 590); Causin vs. Jakosalem (5. Phil. Rep., 155) ; Marker
vs. Garcia (5 Phil. Rep., 557); Uy Piapco vs. Osmeña (9 Phil.
Rep., 299); Macleod vs. Phil. Pub. Co. (12 Phil. Rep., 427); Orense
vs. Jaucian (18 Phil. Rep., 553). In Rodriguez vs. Findlay &
Co. (14 Phil. Rep., 294); and Cordoba y Conde vs. Castle Bros. (18
Phil. Rep., 317), the damages awarded by the lower court were increased on
appeal after a consideration of the evidence. In Brodek vs. Larson (8
Phil. Rep., 425), it was held that the damages awarded by the lower court were
based on too uncertain evidence, and the case was remanded for a new trial as to
the amount of damages sustained. Also in Saldivar vs. Municipality of
Talisay (18 Phil. Rep., 362), where the lower court exonerated the defendant
from liability, this court, after a consideration of the evidence, held that the
defendant was liable and remanded the case for the purpose of a new trial in
order to ascertain the amount of damages sustained.

In this respect the
law of damages under article 1902, as laid down by the decisions of the supreme
court of Spain, has been indirectly modified by the present Code of Civil
Procedure so that the finding of the lower court as to the amount of damages is
not conclusive on appeal.

Actual damages, under the American system, include pecuniary recompense for
pain and suffering, injured feelings, and the like. Article 1902, as interpreted
by this court in Marcelo vs. Velasco (11 Phil. Rep., 287), does not
extend to such incidents. Aside from this exception, actual damages, in this
jurisdiction, in the sense that they mean just compensation for the loss
suffered, are practically synonymous with actual damages under the American
system.

This court has already gone some distance in incorporating into our
jurisprudence those principles of the American law of actual damages which are
of a general and abstract nature. In Baer Senior & Co.’s Successors
vs. Compania Maritima (6 Phil. Rep., 215), the American principle of
admiralty law that the liability of the ship for a tow is not so great as that
for her cargo was applied in determining the responsibility of a ship, under the
Code of Commerce, for her tow. In Rodriguez vs. Findlay & Co. (14
Phil. Rep., 294), which was an action for breach of contract of warranty* the
following principle, supported entirely by American authority. Was used in
computing the amount of damages due the plaintiff:

“The damages recoverable of a manufacturer or dealer for the breach of
warranty of machinery; which he contracts to furnish, or place in operation for
a known purpose are not confined to the difference in value of the machinery as
warranted and as it proves to be, but includes such consequential damages as are
the direct, immediate, and probable result of the breach.”

In Aldaz vs. Gay (7 Phil. Rep., 268), it was held that the earnings
or possible earnings of a workman wrongfully discharged should be considered in
mitigation of his damages for the breach of contract by his employer, with the
remark that nothing had been brought to our attention to the contrary under
Spanish jurisprudence.

In Fernandez vs. M. E. R. & L. Co. (14 Phil. Rep., 274), a
release or compromise for personal injury sustained by negligence attributed to
the defendant company was held a bar to an action for the recovery of further
damages, on the strength of American precedents.

In Taylor vs. M. E. R. & L. Co., supra, in the course of an extended
reference to American case law, the doctrine of the so-called “Turntable” and
“Torpedo” cases was adopted by this court as a factor in determining the
question of liability for damages in such cases as the one the court then had
under consideration.

In Martinez vs. Van Buskirk (18 Phil. Rep., 79), this court, after
remarking that the rules under the Spanish law by which the fact of negligence
is determined are, generally speaking, the same as they are in Anglo-Saxon
countries, approved the following well-known rule of the Anglo Saxon law of
negligence, relying exclusively upon American authorities: “* * * acts, the
performance of which has not proven destructive or injurious and which have been
generally acquiesced in by society for so long a time as to have ripened into a
custom, cannot be held to be unreasonable or imprudent and that, under the
circumstances, the driver was not guilty of negligence in so leaving his team
while assisting in unloading his wagon.”

This court does not, as a rule, content itself in the determination of cases
brought before it, with a mere reference to or quotation of the articles of the
codes or laws applicable to the questions involved, for the reason that it is
committed to the practice of citing precedents for its rulings wherever
practicable. (See Ocampo vs. Cabangis, 15 Phil. Rep., 626.) No better
example of the necessity of amplifying this treatment of a subject given in the
code is afforded than article 1902 of the Civil Code, That article requires that
the defendant repair the damage done. There is, however, a world of difficulty
in carrying out the legislative will in this particular. The measure of damages
is an ultimate fact, to be determined from the evidence submitted to the court.
The question is sometimes a nice one to determine, whether the offered evidence
is such as ought to be considered by the «court ir fixing the quantum of
damages; and while the complexity of human affairs is such that two cases are
seldom exactly alike, a thorough discussion of each case may permit of their
more or less definite classification, and develop leading principles which will
be of great assistance to a court in determining the question, not only of
damages, but of the prior one of negligence. We are of the opinion that as the
Code is so indefinite (even though from necessity) on the subject of damages
arising from fault or negligence, the bench and bar should have access to and
avail themselves of those great, underlying principles which have been gradually
and conservatively developed and thoroughly tested in Anglo-Saxon courts. A
careful and intelligent application of these principles should have a tendency
to prevent mistakes in the rulings of the court on the evidence offered, and
should assist in determining damages, generally, with some degree of
uniformity.

The law of damages has not, for some reason, proved as favorite a theme with
the civil-law writers as with those of the common-law school. The decisions of
the supreme court of Spain, though numerous on damages arising from contractual
obligations, are exceedingly few upon damages for personal injuries arising
ex delicto. The reasons for this are not important to the present
discussion. It is sufficient to say that the Jaw of damages has not received the
elaborate treatment that it has at the hands of the Anglo Saxon jurists. If we
in this jurisdiction desire to base our conclusions in damage cases upon
controlling principles, we may develop those principles and incorporate them
into our jurisprudence by that difficult and tedious process which constitutes
the centuries-old history of Anglo-Saxon jurisprudence; or we may avail
ourselves of these principles in their present sikte of development without
further effort than it costs to refer to the works and writings of many eminent
text-writers and jurists. We shall not attempt to say that all these principles
will be applicable in this jurisdiction. It must be constantly borne in mind
that the law of damages in this jurisdiction was conceived in the womb of the
civil law and under an entirely different form of government. These influences
have had their effect upon the customs and institutions of the country. Nor are
the industrial and social conditions the same. An act which might constitute
negligence or damage there might not constitute negligence or damage here, and
vice versa. As stated in Story on Bailments, section 12, “It will thence follow
that, in different times and in different countries, the standard (of diligence)
is necessary variable with respect to the facts, although it may be uniform with
respect to the principle. So that it may happen that the same acts which in one
country or in one age may be deemed negligent acts, may at another time or in
another country be justly deemed an exercise of ordinary diligence.”

The abstract rules for determining negligence and the measure of damages are,
however, rules of natural justice rather than man-made law, and are applicable
under any enlightened system of jurisprudence. There is all the more reason for
our adopting the abstract principles of the Anglo Saxon law of damages, when we
consider that there are at least two important laws on our statute books of
American origin, in the application of which we must necessarily be guided by
American authorities: they are the Libel Law (which, by the way, allows damages
for injured feelings and reputation, as well as punitive damages, in a proper
case), and the Employers’ Liability Act.

The case at bar involves actual incapacity of the plaintiff for two months,
and loss of the greater portion of his business. As to the damages resulting
from the actual incapacity of the plaintiff to attend to his business there is
no question. They are, of course, to be allowed on the basis of his earning
capacity, which in this case, is P50 per month. The difficult question in the
present case is to determine the damage which has resulted to his business
through his enforced absence. In Sanz vs. Lavin Bros. (6 Phil. Rep.,
299), this court, citing numerous decisions of the supreme court of Spain, held
that evidence of damages “must rest upon satisfactory proof of the existence in
reality of the damages alleged to have been suffered.” But, while certainty is
an essential element of an award of damages, it need not be a mathematical
certainty. That this is true is adduced not only from the personal injury cases
from the supreme court of Spain which we have discussed above, but by many cases
decided by this court, reference to which has already been made. As stated in
Joyce on Damages, section 75, “But to deny the injured party the right to
recover any actual damages in cases of torts because they are of such a nature
as cannot be thus certainly measured, would be to enable parties to profit by
and speculate upon their own wrongs; such is not the law.”

As to the elements to be considered in estimating the damage done to
plaintiff’s business by reason of his accident, this same author, citing
numerous authorities, has the following to say: “It is proper to consider the
business the plaintiff is engaged in, the nature and extent of such business,
the importance of his personal oversight and superintendence in conducting it,
and the consequent loss arising from his inability to prosecute it.”

The business of the present plaintiff required his immediate supervision. All
the profits derived therefrom were wholly due to his own exertions. Nor are his
damages confined to the actual time during which he was physically incapacitated
for work, as is the case of a person working for a stipulated daily or monthly
or yearly salary. As to persons whose labor is thus compensated and who
completely recover from their injuries, the rule may be said to be that their
damages are confined to the duration of their enforced absence from their
occupation. But the present plaintiff could not resume his work at the same
profit he was making when the accident occurred. He had built up an established
business which included some twenty regular customers. These customers
represented to him a regular income. In addition to this he made sales to other
people who were not so regular in their purchases. But he could figure on making
at least some sales each month to others besides his regular customers. Taken as
a whole his average monthly income from his business was about P50. As a result
of the accident, he lost all but four of his regular customers and his receipts
dwindled down to practically nothing. Other agents had invaded his territory,
and upon becoming physically able to attend to his business, he found that it
would be necessary to start with practically no regular trade, and either win
back his old customers from his competitors or else secure others. During this
process of reestablishing his patronage his income would necessarily be less
than he was making at the time of the accident and would continue to be so for
some time. Of course, if it could be mathematically determined how much less he
will earn during this rebuilding process than he would have earned if the
accident had not occurred, that would be the amount he would be entitled to in
this action. But manifestly this ideal compensation cannot be ascertained. The
question therefore resolves itself into whether this damage to his business can
be so nearly ascertained as to justify a court in awarding any amount
whatever.

When it is shown that a plaintiff’s business is a going 1
concern with a fairly steady average profit on the investment, it may be assumed
that had the interruption to the business through defendant’s wrongful act not
occurred, it would have continued producing this average income “so long as is
usual with things of that nature.” When in addition to the previous average
income of the business it is further shown what the reduced receipts of the
business; are immediately after the cause of the interruption has been removed,
there can be no manner of doubt that a loss of profits has resulted from the
wrongful act of the defendant. In the present case, we not only have the value
of plaintiff’s business to him just prior to the accident, but we also have its
value to him after the accident. At the trial, he testified that his wife had
earned about fifteen pesos during the two months that he was disabled. That this
almost total destruction of his business was directly chargeable to defendant’s
wrongful act, there can be no manner of doubt; and the mere fact that the loss
can not be ascertained with absolute accuracy, is no reason for denying
plaintiff’s claim altogether. As stated in one case, it would be a reproach to
the law if he could not recover damages at all. (Baldwin vs. Marqueze,
91 Ga., 404.)

“Profits are not excluded from recovery because they are profits; but when
excluded, it is on the ground that there are no criteria by which to
estimate the amount with the certainty on which the adjudications of courts, and
the findings of juries should be based.” (Brigham vs. Carlisle (Ala.),
56 Am. Rep., 28, as quoted in Wilson vs. Wernwag, 217 Pa.,
82.)

The leading English case on the subject is Phillips vs. London &
Southwestern Ry. Co. (5 Q. B. D., 78; 41 L. T., 121; 8 Eng. Rul. Cases, 447).
The plaintiff was a physician with a very lucrative practice. In one case he had
received a fee of 5,000 guineas; but it appeared that his average income was
between 6,000 and 7,000 pounds sterling per year. The report does not state
definitely how serious plaintiff’s injuries were, but apparently he was
permanently disabled. The following instruction to the jury was approved, and we
think should be set out in this opinion as applicable to the present case:

“You cannot put the plaintiff back again into his original position, but you
must bring your reasonable common sense to bear, and you must always recollect
that this is the only occasion on which compensation can be given. Dr. Phillips
can never sue again for it. You have, therefore, now to give him compensation,
once for all. He has done no wrong; he has suffered a wrong at the hands of the
defendants; and and you must take care, to give him full, fair compensation for
that which he has suffered.”

The jury’s award was seven thousand pounds. Upon a new trial, on the ground
of the insufficiency of the damages awarded, plaintiff received 16,000 pounds.
On the second appeal, Bramwell, L. J., put the case of a laborer earning 25
shillings a week, who, on account of injury, was totally incapacitated for work
for twenty-six weeks, and then for ten weeks could not earn more than ten
shillings a week, and was not likely to get into full work for another twenty
weeks. The proper measure of damages would be in that case 25 shillings a week
for twenty-six, weeks, plus 15 shillings a week for the ten: and twenty weeks,
and damages for bodily suffering and medical expenses. Damages for bodily
suffering, of course, are not, for reasons stated above, applicable to this
jurisdiction; otherwise, we believe this example to be the ideal compensation
for loss of profits which courts should strive to reach, in cases like the
present.

In Joslin vs. Grand Rapids Ice & Coal Co. (53 Mich., 322), the
court said: “The plaintiff, in making proof of his damages, offered testimony to
the effect that he was an attorney at law of ability and in good standing, arid
the extent and value of his practice, and that, in; substance; the injury had
rendered him incapable of pursuit his profession. This was objected to as
irrelevant, immaterial arid incompetent We think this was competent. It was
within the declaration that his standing in his profession was such as to
command respect, and was proper to be shown, and his ability to earn, and the
extent of his practice, were a portion of the loss he had sustained by the
injury complied of. There was no error in permitting this proof, and we further
think it was competent, upon the question of damages under the evidence in this
case, for the plaintiff to show, by Judge Hoyt, as was done, that an
interruption in his legal business and practice for eight months was a damage to
him. It seems to have been a part of the legitimate consequences of the
plaintiff’s injury.”

In Luck vs. City of Ripon (52 Wis., 196), plaintiff was allowed to
prove that she was a midwife and show the extent of her earnings prior to the
accident in order to establish the damage done to her business.

The pioneer case of Goebel vs. Hough (26 Minn., 292) contains
perhiaps one of the clearest statements of the rule and is generally considered
as one of the leading cases on this subject. In that case the court said:

“When a regular and established business, the value of which may be
ascertained, has been wrongfully interrupted, the true general rule for
compensating the party injured is to ascertain how much less valuable the
business was by reason of the interruption, and allow that as damages. This
gives him only what the wrongful act deprived him of. The value of such a
business depends mainly on the ordinary profits derived from it. Such value
cannot be ascertained without showing what the usual profits are; nor are the
ordinary profits incident to such a business contingent or speculative, in the
sense that excludes profits from consideration as an element of damages. What
they would have been, in the ordinary course of the business, for a period
during which it was interrupted, may be shown with reasonable certainty. What
effect extraordinary circumstances would have had upon the business might be
contingent and conjectural, and any profits anticipated from such causes would
be obnoxious to the objection that they are merely speculative; but a historyf
the business, for a reasonable time prior to a period of interruption, would be
done under ordinary circumstances, and in the usual course, during the given
period; and the usual rate of profit being shown, of course the aggregate
becomes only a matter of calculation.”

In the very recent case of Wellington vs. Spencer (Okla., 132 S. W.,
675), plaintiff had rented a building from the defendant and used it as a hotel.
Defendant sued out a wrongful writ of attachment upon the equipment of the
plaintiff, which caused him to abandon his hotel business. After remarking that
the earlier cases held that no recovery could be had for prospective profits,
but that the later authorities have held that such damages may be allowed when
the amount is capable of proof, the court had the following to say:

“Where the plaintiff has just made his arrangements to begin business, and he
is prevented from beginning either by tort or a breach of contract, or where the
injury is to a particular subject matter, profits of which are uncertain,
evidence as to expected profits must be excluded from the jury because of the
uncertainty. There is as much reason to believe that there will be no profits as
to believe that there will be profits, but no such argument can be made against
proving a usual profit of an established business. In this case the plaintiff,
according to his testimony, had an established business, and was earning a
profit in the business, and had been doing that for a sufficient length of time
that evidence as to prospective profits was not entirely speculative. Men who
have been engaged in business calculate with a reasonable certainty the income
from their business, make their plans to live accordingly, and the value of such
business is not such a matter of speculation as to exclude evidence from the
jury.”

A good example of a business not established for which loss of profits will
not be allowed may be found in States vs. Durkin (65 Kan., 101). Plaintiffs
formed a partnership.and entered the plumbing business in the city of Topeka in
April. In July of the same year, they brought an action against a plumbers’
association on the ground that the latter had formed an unlawful combination in
restraint of trade and prevented them from securing supplies for their business
within a reasonable time. The court said;

“In the present case the plaintiffs had only been in business a short
time—not so long that it can be said that they had an established business. They
had contracted three jobs of plumbing, had finished two, and lost money on both;
not, however, because of any misconduct or wrongful acts on the part of the
defendants or either of them. They carried no stock in trade, and their manner
of doing business was to secure a contract and then purchase the material
necessary for its completion. It is not shown that they had any means or capital
invested in the business other than their tools. Neither of them had prior
thereto managed or carried on a similar business. Nor was it shown that they
were capable of so managing this business as to make it earn a profit. There was
little of that class of business being done at that time, and little, if any,
profit derived therefrom. The plaintiffs’ business lacked duration, permanency,
and recognition. It was an adventure, as distinguished from an established
business. It was an adventure, as distinguished from an established business.
Its profits were speculative and remote, existing only in anticipation. The law,
with all its vigor and energy in its effort to right wrongs and award damages
for injuries sustained, may not enter into the domain of speculation or
conjecture. In view of the character and condition of the plaintiffs’ business,
the jury had not sufficient evidence from which to ascertain
profits.”

Other cases which hold that the profits of an established business may be
considered in calculating the measure of damages for an interruption of it are:
Wilkinson vs. Dunbar (149 N. C, 20); Kinney vs. Crocker (18
Wis., 80); Sachra vs. Manilla (120 Ia., 562); Kramer vs. City
of Los Angeles (147 Cal., 668); Mugge vs. Erkman (161 Ill. App., 180);
Fredonia Gas Co. vs. Bailey (77 Kan., 296); Morrow vs. Mo.
Pac. R. Co. (140 Mo. App., 200); City of Indianapolis vs. Gaston (58
Ind., 224); National Fibre Board vs. Auburn Electric Light Co. (95 Me.,
318); Sutherland on Damages,sec. 70.

We have now outlined the principles which should govern the measure of
damages in this case. We are of the opinion that the lower court had before it
sufficient evidence of the damage to plaintiff’s business in the way of
prospective loss of profits to justify it in calculating his damages as to this
item. That evidence has been properly elevated to this court for review. Under
section 496 of the Code of Civil Procedure, we are authorized to enter final
judgment or direct a new trial, as may best subserve the ends of justice. We are
of the opinion that the evidence presented as to the damage done to plaintiff’s
business is credible and that it is sufficient and clear enough upon which to
base a judgment for damages. Plaintiff having had four years’ experience in
selling goods on commission, it must be presumed that he will be able to rebuild
his business to its former proportions; so that at some time in the future his
commissions will equal those he was receiving when the accident occurred. Aided
by his experience, he should be able to rebuild this business to its former
proportions in much less time than it took to establish it as it stood just
prior to the accident. One year should be sufficient time in which to do this.
The profits which plaintiff will receive from the business in the course of its
reconstruction will gradually increase. The injury to plaitiff’s business begins
where these profits leave off, and, as a corollary, there is where defendant’s
liability begins. Upon this basis, we fix the damages to plaintiff’s business at
P250.

The judgment of the lower court is set aside, and the plaintiff is awarded
the following damages: ten pesos for medical expenses; one hundred pesos for the
two months of his enforced absence from his business; and two hundred and fifty
pesos for the damage done to his business in the way of loss of profits, or a
total of three hundred and sixty pesos. No costs will be allowed in this
instance.

Arellano, C. J., and Araullo, J., concur.

Carson, J., concurs in the result