ELENA AMEDO, PLAINTIFF AND APPELLANT, VS. RIO Y OLABARRIETA, INC., DEFENDANT AND APPELLEE.

This case was instituted on October 18, 1950. In her original
complaint, plaintiff Elena Amedo sought to collect from defendant Rio y
Olabarrieta, Inc., the sum of P2,038.40 as compensation for the death
of her son, Filomeno Managuit, who worked for the defendant as a seaman
of the M/S Pilar II. The main allegation of said original complaint was:

“That on May 27, 1949 at about 11:30 o’clock in the morning, while the deceased Pilomeno Managuit was on board M/S ‘Pilar II’ as
such seaman, he jumped into the water to retrieve a 2-peso bill
belonging to him, and as a consequence of which, he was drowned.”

On November 1, 1950, defendant filed a motion to dismiss upon the
ground that said allegation does not show that the death of plaintiff’s
son was due to an “accident arising out of and in the course of
employment,” and that, accordingly, the complaint does not state a
cause of action. This motion was granted and the complaint dismissed,
accordingly, by an order dated December 11, 1950. A motion for the
reconsideration of this order having been denied, plaintiff appealed to
this Court, which, on October 30, 1952, rendered a decision affirming
the order appealed from, but “without prejudice to the right of the
plaintiff, the mother of the deceased seaman, to file an amended
complaint within fifteen (15) days from notice by the clerk of the
trial court that the record of this case had been remanded to and
received by the trial court, without costs.” Hence, on December 22,
1952, plaintiff filed an amended complaint, paragraph 4 of which
alleges:

“That on May 27, 1949, at or about 11:30 o’clock in
the morning while the said Filomeno Managuit was in the course of his
employment, performing his duties as such ordinary seaman on defendant’s M/S ‘Pilar II’,
which was anchored then about 1 1/2, miles from the seashore of Arceli
Dumarang, Palawan, his two-peso bill was blown by the breeze into the
sea and in his effort to retrieve the same from the waters he was
drowned.”

A motion to dismiss this amended complaint upon the ground of
failure to state a cause of action was granted and the case,
consequently, dismissed without costs. A reconsideration of this action
having been denied, the case is once again before us on appeal.

Plaintiff’s claim is admittedly predicated upon Act No. 3428,
otherwise known as the Workmen’s Compensation Act. The same was
amended, first, by Act No. 3812, then, by Commonwealth Act No. 210 and,
lastly, by Republic Act 772. The latter, however, took effect on June
20, 1952 or after the accident upon which plaintiff bases her cause of
action. Hence, in the consideration of this case, we shall disregard
the provisions of said Republic Act No. 772. Sections 2 and 4 of Act
No. 2428, prior to its latest amendment, read:

“SEC. 2. Grounds for compensation.—When any
employee receives a personal injury from any accident arising out of
and in the course of the employment, or contracts any illness directly
caused by such employment, or the result of the nature of such
employment, his employer shall pay compensation in the sums and to the
persons hereinafter specified.”

“SEC. 4. Injuries not covered.—Compensation
shall not be allowed for injuries caused (1) by the voluntary intent of
the employee to inflict such injury upon himself or another person; (2)
by drunkenness on the part of the laborer who had the accident; (3) by
notorious negligence of the same.”

Pursuant to these provisions—in so far as pertinent to the case at
bar—three conditions are essential to hold an employer liable to
compensate his employee for a personal injury sustained by him from an
accident, namely: (1) the accident must arise out of the employment;
(2) it must happen in the course of the employment; and (3) it must not
be caused by the “notorious negligence” of the employee.

Admittedly, the death of Filomeno Managuit was due to an accident.
The point in issue is whether such accident occurred under the three
(3) conditions aforementioned. Referring to the first two requirements,
we said, in Afable et al. vs. Singer Sewing Machine Co. (58 Phil., 39,
42) :

“The phrase ‘due to and in the pursuance of used in
section 2 of Act No. 3428 was changed in Act No. 3812 to ‘arising out
of and in the course of. Discussing this phrase, the Supreme Court of
Illinois in the case of Muller Construction Co. vs. Industrial Board
(283 111., 148; 118 N. E., 1028; 1 W. C. L., 943), said:

‘The
words ‘arising out of refer to the origin or cause of the accident and
are descriptive of its character, while the words ‘in the course of
refer to the time, place, and circumstances under which the accident
takes place. (Fitzgerald vs. Clarke & Sons, 1 B.W.C.C., 197 Dietzen
Co. vs. Industrial Board, 279 III. 11; 116 N.E. 684.) By the use of
these words it was not the intention of the legislature to make the
employer an insurer against all accidental injuries which might happen
to an employee while in the course of the employment, but only for such
injuries arising from or growing out of the risks peculiar to the
nature of the work in the scope of the workmen’s employment or
incidental to such employment, and accidents in which it is possible to
trace the injury to some risk or hazard to which the employee is
exposed in a special degree by reason of such employment. Risks to
which all persons similarly situated are equally exposed and not
traceable in some special degree to the particular employment are
excluded.’ “

Adopting a liberal view, it may be conceded that the death of
Filomeno took place “in the course of” his employment, in that it
happened at the “time” when, and at the “place” where—according to the
amended complaint— he was working. However, the accident which produced
this tragic result did not “arise out of” his employment. Indeed, the
latter was not “the origin or cause of said accident. The blowing of his 2-peso bill may
have grown out of, or arisen from, his employment. It was the result of
a risk peculiar to his work as a seaman or incidental to such work.
But, his death was the consequence of his decision to jump
into the water to retrieve said bill. The hazardous nature of this act
was not due specially to the nature of his employment. It was a risk to
which any person on board the M/S Pilar II, such as a
passenger thereof or an ordinary visitor, would have been exposed had
he, likewise, jumped into the sea, as Filomeno had.

Irrespective of whether or not the accident in question arose out
of, or took place in the course of the employment, was it caused by his
“notorious negligence”? The phrase “notorious negligence” has been held
to be tantamount to “gross negligence”, which, in turn, has been
defined as follows:

“Gross negligence is defined to be the want of even
slight care and diligence.” (Mobile & M. R. Co. vs. Aschcraft
[1872] 48 Ala., 15.)

“By gross negligence is meant ‘such
entire want of care as to raise a presumption that the person in fault
is conscious of the probable consequences of carelessness, and is
indifferent, or worse, to the danger of injury to person or property of
others…. The negligence must amount to a reckless disregard of
the safety of person or property.” (Wall vs. Cameron [1882] 6 Colo.,
275; see, also, The Law Governing Labor Disputes in the Philippines by
Francisco, 2nd ed., p. 877.)

It cannot be denied that in jumping into the sea, one mile and a
half from the seashore of Arceli, Dumarang, Palawan, Filomeno failed to
exercise “even slight care and diligence,” that he displayed a
“reckless disregard of the safety” of his person, that he could not
have been but conscious of the probable consequences” of his
carelessness and that he was “indifferent, or worse, to the danger of
injury.”

Thus, in the case of Government of the Philippines vs. The Manila
Electric Co. (40 Off. Gaz., 9th Suppl. 232), an employee of the Bureau
of Posts who died by electrocution, as the lines which he was repairing
came into contact with those of the Manila Electric, was held to be
guilty of gross negligence, he having been previously warned that the
service of electric light had been reestablished and that he should,
therefore, be careful in handling the wires. The same conclusion was
reached in De la Cruz vs. Hijos de I. de la Rama & Co. (62 Phil.,
653), involving a truck driver who died, because his truck fell into a
ditch in consequence of a false maneuver he made to avoid collision
with another car which unexpectedly appeared on the road, while he was
driving on the wrong side of the highway, at a speed of 40 to 50 km. an
hour.

To the same effect was the decision in Jahara vs. Mindanao Lumber
Co. (57 Phil., 853), referring to a laborer who was run over by a car,
as he fell therefrom, when he tried to board it while moving backward.
Similarly, the death of a carpenter as he slipped from the roof of a
building he was repairing was blamed on his gross negligence in Caunan
vs. Compania General de Tabacos (56 Phil., 542, 545), he having worn
rubber shoes despite the fact that the roof was wet.

The case of Reyes vs. The City of Manila (G. R. No. 29112, July 18,
1933) referred to a watchman assigned to a road-roller, who sat on a
piece of board one end of which was over a box placed on the hind
wheels of the road-roller and the other end over a box of tools on the
same roller two meters above the ground. As he tried to drive away the
mosquitoes and flying ants which bothered him, the board slipped off
the wheel of the roller. So, he fell to the ground and his knee and
left pelvis bumped against the cement sidewalk, sustaining physical
injuries as a consequence thereof. It was held that he had been grossly
negligent in seating on the piece of board which was precariously
placed and in making motions for the purpose of driving away the
mosquitoes and flying ants. Again in Guilas vs. The Province of
Pampanga (G. R. No. 37744, July 21, 1933), a laborer on board a truck
who stood up as it was approaching a curve and fell over when the
vehicle turned the curved, was held guilty of gross negligence.

In none of these cases was the danger as apparent or imminent as
when Filomeno Managuit jumped into the sea to recover his 2-peso bill.
Hence, there is more reason to hold that his death was caused by his
notorious negligence.

His case is easily distinguishable from that of Cuevo vs. Barredo
(G. R. No. 45669, decided February 24, 1938, the employee involved
therein, who appeared to be a good swimmer, having acted in obedience to an order of his foreman,
to save or protect a property of the employer. It is, also,
distinguishable from accidents occurring while the laborer or employee
is answering a call of nature, or throwing away his cigarette (Columbia
Casualty Co. vs. Parham, 69 Ga. App. 258), or picking up his pipe,
which had fallen, or retrieving his shoes from a car into which a
fellow worker had thrown it (Donovan vs. Bush Terminal Co., 6 N. Y. S.
2nd 860, 255 App. Div. 737), these acts not being dangerous per se
and the employee being legally justified or supposed to perform either
of them in the course of his employment. So, also, if, while Filomeno
Managuit was working, his 2-peso bill merely fell from his pocket, and
as he picked up the bill from the floor something accidentally fell
upon him and injured him, he would surely be entitled to compensation,
his act being obviously innocent. In such case, it could be said, in
the words of the Lord President in Lauchlan vs. Anderson (S. C. 529),
that “He had the right to be at the place * * *; he was within the time
during which he was employed * * *; and he was doing a thing which a
man while working may reasonably do—a workman of his sort may
reasonably smoke, he may reasonably drop his pipe, and he may
reasonably pick it up again.” (See Ramos vs. Poblete et al., 40 Off.
Gaz., 3474). Jumping into the sea, however, is entirely different, the
danger which it entails being clear, potent and obvious.

In view of the foregoing the decision appealed from is hereby affirmed, without special pronouncement as to costs.

It is so ordered.

Paras, C. J., Bengzon, Montemayor, Reyes, A., Jugo, Bautista Angelo, and Labrador, JJ., concur.