JUSTA AFABLE AND THE MINORS POTENCIANO MADLANGBAYAN AND ROSA MADLANGBAYAN, BY JUSTA AFABLE, AS GUARDIAN AD LITEM, PLAINTIFFS AND APPELLANTS, VS. SINGER SEWING MACHINE COMPANY, D…

This
is an appeal by the plaintiffs from a decision of Judge Pedro
Concepcion of the Court of First Instance of Manila dismissing the
complaint, without a special finding as to costs.

The appellants make the following assignments of error:

“I. El Juzgado a quo
incurrio en error al considerar que los hechos probados por los
demandantes caen fuera de las disposiciones del articulo 2 de dicha Ley
No. 3428 tal como ha sido enmendada por la Ley No. 3812 de la
Legislatura Filipina;

“II. Erro tambien al sobreseer de una manera definitiva la demanda;

“III.
Incurrio finalmente en error al no conceder la compensacion reclamada
en la demanda a que tienen derecho los demandantes, segun las
disposiciones de dicha Ley.”

It appears
from the evidence that Leopoldo Madlangbayan was a collector for the
Singer Sewing Machine Company in the district of San Francisco del
Monte, outside of the limits of the City of Manila, and he was supposed
to be residing in his district according to the records of the company.
His compensation was a commission of eight per cent on all collections
made by him. On the afternoon of Sunday, November 16, 1930, Leopoldo
Madlangbayan while riding a bicycle was run over and fatally injured at
the corner of O’Donnell and Zurbaran streets in the City of Manila by a
truck driven by Vitaliano Sumoay. It appears that Madlangbayan had
moved to Teodora Alonso Street in Manila without notifying the company,
and that at the time of his death he was returning home after making
some collections in San Francisco del Monte. According to the practice
of the company, if collectors made collections on Sunday they were
required to deliver the amount collected to the company the next
morning.

On November 21, 1930, Vitaliano Sumoay, the driver
of the truck which caused the death of Leopoldo Madlangbayan, was
convicted for the crime of homicide through reckless negligence, and
was sentenced to imprisonment for one year and one day, and to
indemnify the heirs of Leopoldo Madlangbayan in the sum of P1,000.

On February 19, 1931, the widow and children of Leopoldo Madlangbayan
brought the present action to recover from the defendant corporation
under Act No. 3428, as amended by Act No. 3812, P100 for burial
expenses and P1,745.12 for compensation. Plaintiffs’ complaint was
subsequently amended, and they sought to recover under sections 8 and
10 of Act No. 3428 fifty per cent of P16.78 for 208 weeks or P1,745.12,
plus P100 for burial expenses.

In its answer to the
plaintiffs’ last amended complaint, the defendant denied all the
allegations thereof, and as special defenses alleged that prior to the
filing1 of this complaint the plaintiffs had obtained a judgment
against Vitaliano Sumoay for the damages caused by him; that Leopoldo
Madlangbayan at the time that he sustained the injuries resulting in
his death was violating an ordinance of the City of Manila which
prohibits work on Sunday; and that Act No. 3428, as amended, is
unconstitutional and void because it denies the defendant the equal
protection of the law, and impairs the obligation of the contract
between the defendant and Leopoldo Madlangbayan, and deprives the
Courts of First Instance of their probate jurisdiction over the estate
of deceased persons and nullifies Chapters XXIX, XXX, XXXI, XXXII,
XXXIII, and XXXIV of the Code of Civil Procedure and related articles
of the Civil Code.

As the deceased Leopoldo Madlangbayan was
killed on November 16, 1930, and Act No. 3812 was not approved until
December 8, 1930, it is apparent that the law which is applicable is
Act No. 3428, section 2 of which reads as follows:

“When
any employee receives a personal injury from any accident due to and in
the pursuance 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.”

The
accident which caused the death of the employee was not due to and in
pursuance of his employment. At the time that he was run over by the
truck Leopoldo Madlangbayan was not in the pursuance of his employment
with the defendant corporation, but was on his way home after he had
finished his work for the day and had left the territory where he was
authorized to make collections for the defendant. The employer is not
an insurer “against all accidental injuries which might happen to an
employee while in the course of the employment”, and as a general rule
an employee is not entitled to recover from personal injuries resulting
from an accident that befalls him while going to or returning from his
place of employment, because such an accident does not arise out of and
in the course of his employment.

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 Mueller
Construction Co. vs. Industrial Board (283 Ill., 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 workman’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.”

Although some courts have held
otherwise, we think the better rule is as we have stated it. We do not
of course mean to imply that an employee can never recover for injuries
suffered while on his way to 6r from work. That depends on the nature
of his employment. In the case at bar, if the deceased had been killed
while going from house to house in San Francisco del Monte in the
pursuance of his employment, the plaintiffs would undoubtedly have the
right, prima facie, to recover.

The appellants
cite the syllabus in Stacy’s case (225 Mass., 174), in support of their
contention, but an examination of that case shows that it differs
materially from the case at bar. Stacy was drowned by reason of
breaking through the ice of Colburn’s Pond while on his way home from
work. Up to the time of his death he had been employed in the
ice-house, in the work of storing ice which was cut from the pond. The
ice-house was situated at the southerly end of the pond and the
deceased lived directly north from the ice-house, across the pond. He
followed the reasonable and customary way of leaving his employer’s
premises. The path around the pond was not used in winter. He was on
his employer’s premises when he met his death and was leaving those
premises by a reasonable way. There was no other convenient way of
going home. The pond was the premises of his employer, under his
employer’s control. It was as a result of the working operations of his
employer that he met his death. The court said. “The finding that the
pond was in the control of the employer and that crossing over it upon
the ice was the ‘reasonable and customary way’ for the deceased to
reach his home, and that he and other employees who lived in the same
direction ‘crossed by this way regularly’, warranted the further
finding that the injury occurred in the course of the employment.” The
court added: “It also could have been found that the death of the
employee was due to his employment as a contributing proximate cause,
incidental to the nature of the work in which he was engaged. There was
evidence from which the board could have found that Stacy’s death
occurred by reason of the special hazard incident to the work which it
was his duty to perform.” The court said that Stacy’s case was clearly
distinguishable from Fumiciello’s case (219 Mass., 488):

Fumiciello was employed by Lathrop & Shea, who were doing some
contract work for the Boston & Albany Railroad Company near
Middlefield. He lived about one mile west where he was employed, and it
was necessary for him to pass over the tracks of the Boston &
Albany Railroad Company to go from his work to his home. While
returning home at the close of the day’s work, Fumiciello entered upon
the railroad track where he was struck by a train and killed. The
question for decision was whether the injury arose out of and in the
course of his employment. The court said: “It is plain that if, as the
record states, it was necessary for him to pass over the railroad
location, it formed no part of the employers’ plant; nor was it in any
way connected therewith or in their control as was the common stairway
used by employees in Sundine’s Case, 218 Mass., 1. The contract of
employment did not provide for transportation or that the employee
should be paid for the time taken in going and returning to his place
of employment, and when the day’s work had ended the employee was free
to do as he pleased. If he had chosen to use the public ways and had
been injured by a defect or passing vehicle the administrator could not
recover against the employer because there would be no causal
connection between the conditions of employment and the injuries
suffered.”

This subject is considered at length in Workmen’s Compensation Law by Schneider, Second Edition, pp. 745 et seq.

In the case at bar the deceased was going from work in his own conveyance.

“An
employee quit work, mounted his motorcycle and started for home. When
riding down the street he collided with an automobile driven by another
employee. He sustained injuries which resulted in his death. In holding
that the accident did not arise out of or in the course of the
employment, the court said: ‘To come within the term “injury received
in the course of employment” it must be shown that the injury
originated in the work, and, further, that it was received by the
employee while engaged in or about the furtherance of the affairs of
the employer. If it be conceded that the injury originated in the work,
it would still be necessary, in our opinion, to show that the employee
was engaged in the furtherance of his employer’s business.’ (Indemnity
Co. vs. Dinkins [Tex. Civ. App.], 211 S. W., 949 [1919]; 18 N. C. C. A., 1034; 4 W. C. L. J., 294; In re Peter S. Winchester, 2nd A. R. U. S. C. C., 262; In re Julius Rosenberg, 2nd A. R. U. S. C. C., 263; Kirby Lumber Co. vs. Scurlock, Tex. Civ. App-[1921], 229 S. W., 975.)”

“An
employee who was paid by the hour was furnished a bicycle for his work,
and while riding home one evening on. the main road he was run into and
killed by a motor lorry. It was held that, since it was no part of his
duty to ride home on the bicycle the accident did not arise in the
course of his employment. (Edwards vs. Wingham Agriculture
& Imp. Co. [1913], W. C. & Ins. Rep., 642; 109 L. T. Rep., 50;
82 L. J. K. B., 998; 6 B. W. C. C, 511; 4 N. C. C. A., 115; Cook vs. Owners of ‘Montreal,’ 108 L. T. Rep., 164; 29 T. L. Rep., 233; 6 B. W. C. C., 220 [1913], 4 N. C. C. A., 115.)”

“An
employee had quit work and left the premises. He was sitting in his
buggy waiting for his son, when the horse took fright and ran away. It
was held that the injury sustained in the runaway did not arise out of
or in the course of the employment. (In re McCall, Ohio I. C. No. 121401, Nov. 4, 1915; Hilding vs. Dept. of Labor & Ind. [Wash.], 298 Pac, 321 [1931].)”

Furthermore, it appears that the deceased had never notified the
defendant corporation of his removal from San Francisco del Monte to
Manila, and that the company did not know that he was living in Manila
on the day of the accident; that the defendant company did not require
its employees to work on Sunday, or furnish or require its agents to
use bicycles. These are additional reasons for holding that the
accident was not due to and in pursuance of the employment of the
deceased. If the deceased saw fit to change his residence from San
Francisco del Monte to Manila and to make use of a bicycle in going
back and forth, he did so at his own risk, as the defendant company did
not furnish him a bicycle or require him to use one; and if he made
collections on Sunday, he did not do so in pursuance of his employment,
and his employer is not liable for any injury sustained by him.

For the foregoing reasons, the decision appealed from is affirmed, with the costs against the appellants.

Villamor, Villa-Real, Hull, and Imperial, JJ., concur.