Facts:

- Salvador Bona, of from 8 to 9 years of age, who had been run over by an
automobile driven and managed by the defendant on the morning of March 5,
9!
- "he defendant, as the one who had caused the accident, is bound to
indemnify the mother of the deceased child in the amount of #,$$$, which
was deemed by the trial %udge to be the value of the damages occasioned to
the mother for the loss and death of a member of her family&
'()"*)"+() (F #*"+"+()*,:
- #etitioner contends he was running at a low s-eed that he sto--ed at brfore
crossing ,eal St&
- "his is belied by the fact that Salvador Bona was run over near the entrance
of Solana St& "his could not have been -ossible if he was running slow
because .e would have seen Salvador Bona coming from the right side going
towards the left&
- .owever this is belied by the fact that that after the automobile had run over
the body of the child, and the child/s body had already been stretched out on
the ground, the automobile still moved along a distance of about 0 meters
)("*:
Main 1ecision only added the above facts of the case to substantiate and
strengthen the decision of the lower 'ourt&
+SS2*:
+s the award of actual or com-ensatory damages -ro-er3
.*41:
5es, +n view of the foregoing considerations as well as those contained in the
%udgment of the trial court, which, we believe to be in accordance with law and
the evidence of record, we believe that the errors assigned by the a--ellant are
thereby refuted and that therefore the %udgment a--ealed from, should be, as it
hereby is, a6rmed&
SEPARATE DECISION:
'()'2,,+)7, 8& Malcolm:
- 8ustice Malcolm discusses di9erences in the award of damages and the right
to sue in various %urisdictions:
- +n '(MM() 4;<:
o no civil action lies for damages caused by the death of a human being
by the wrongful or negligent act of another
o "he ma=im is actio personalis moritur cum persona
o There are two diferent reasonings:
(lder theiry: the merger of the -rivate right in the -ublic wrong
5ounger theory: the death of a human being cannot be
com-lained of as a civil in%ury&
2nder the second theory it has been re-eatedly held that that a
civil action by a -arent for the death of a minor child cannot be
maintained
- 4(2+S+;); 'ivil 4aw:
o the action could not be maintained by the surviving wife or children&
- #2*,"( ,+'( 'ivil 4aw:
o "he right to sue for death from negligence of a defendant, by -ersons
entitled to su--ort by the deceased has not been changed by the new
'ivil 'ode of #orto ,ico
- S#;+) 'ivil 4aw
o ;ction could be maintained by surviving wife or children
- F,;)'* 'ivil 4aw
o sanctioning actions by those damaged by the death of another against
-ersons by whose fault the death ha--ened&
- Both because of the civil origin of the a--licable law in the #hili--ines,
because we are not fettered by the harsh common law rule on the sub%ect,
because it is the modern and more e>uitable -rinci-le, and because reason
and natural %ustice are elo>uent advocates, we hold that an action for
damages can be maintained in this %urisdiction for the death of a -erson by
wrongful act& +t can be admitted, since ob%ection has not been made, that the
-rimary right of action is in the -arent&
AS TO AO!NT O" DAA#E:
- ;ccording to *scriche:
o the detriment, in%ury, or loss which are occasioned by reason of fault of
another in the -ro-erty or -erson&? (f whatsoever nature the damage
be, and from whatsoever cause it may -roceed, the -erson who has
done the in%ury ought to re-air it by an indemnity -ro-ortionate to his
fault and to the loss caused thereby&
- ;ccording to #hili--ine 4aw:
o +n order to give rise to the obligation im-osed by this article of the 'ivil
'ode, the coincidence of two distinct re>uisites is necessary:
@A "hat there e=ist an in%ury or damage not originating in acts
or omissions of the -re%udiced -erson himself, and its e=istence
be duly -roven by the -erson demanding indemniBcation
therefore:
@0A that said in%ury or damage be caused by the fault or
negligence of a -erson other than the su9erer&
o "hose seeCing to recou- damages must ordinarily establish their
-ecuniary loss by satisfactory -roof&
o .owever, in certain cases, the law -resumes a loss because of the
im-ossibility of e=act -roof and com-utation in res-ect to the amount
of the loss sustained&
o "herefore, the loss can be -roved either by e$idence or %&
presumption&
For instance, where the relation of husband and wife or -arent
and child e=ist, -rovided the child is shown to be a minor, the
law -resumes a -ecuniary loss to the survivor from the fact of
death, and it is not necessary to submit -roof as to such loss&
- "he right of action for death and the -resum-tion in favor of com-ensation
being admitted, the di6culty of estimating in money the worth of a life
should not Cee- a court from %udicially com-ensating the in%ured -arty as
nearly as may be -ossible for the wrong&
- "rue, man is inca-able of measuring e=actly in the delicate scales of %ustice
the value of a human life& "rue, the feelings of a mother on seeing her little
son torn and mangled D e=-iring D dead D could never be assuaged with
money& "rue, all the treasure in nature/s vaults could not begin to com-ensate
a -arent for the loss of a beloved child&
- )evertheless, within the bounds of human -owers, the negligent should maCe
re-aration for the loss&
- ;ttem-ts at a--ro=imation in money for death have been made& Many
;merican statutes have arbitrarily limited the amounts that could be
recovered to Bve thousand dollars or ten thousand dollars&
- &A +n 4ouisiana, E0,5$$, EF,$$$, EG,$$$, and E!,$$$ were allowed in the
res-ective cases for the death of a child& +n #orto ,ico, E,$$$ and E,5$$
has been allowed for such a loss& +n the #hili--ines, the rule has been in
criminal cases to allow as a matter of course #,$$$ as indemnity to the heirs
of the deceased&
- 0 cases were cited from di9erent %urisdictions:
o Su-reme 'ourt of S-ain
'ase of a H8ai alaiI worCer who was tasCed to attach Jags before
the o-ening of the game
Su-reme 'ourt of S-ain used their -rovision on >uasi-delict and
a--lied the same&
The amount o' the indemni(cation ad)udged is %ased on
the e$idence ta*en and on the 'acts admitted %& %oth
parties in their pleadings at the trial+ where'ore there
has %een no $iolation o' article ,-,,+ through lac* o'
proo'+ as alleged. aw li%rar&
o Su-reme 'ourt of #uerto ,ico
; 5-year old man fell to the ground owing owing to the
carelessness and inattention of the motorman in starting the car
before it, was time: that he received a severe blow which
rendered him unconscious for some moments, fractured his
lower %aw, and caused abrasions on his legs and other -arts of
his body: that he remained at the hos-ital, having his in%uries
nursed, for more or less one month, and that, on being
e=amined at the trial D that is, one year and Bve months after
his fall D he -resented on the right side of his face, as a
conse>uence of the fracture, /a contraction which means a
-aralysis,/ and could /s-eaC, but hardly masticate, and only with
di6culty could o-en and close his mouth&/ +t does not a--ear
from the evidence that the com-lainant has been disabled, but it
does a--ear that at the time the evidence was taCen he was
su9ering from nervous illness, according to the o-inion of 1r&
Stahl, one of the e=-erts who testiBed at the trial&
2nder these circumstances the %udge, in accordance with the
law and %uris-rudence, had to estimate for himself the damage
caused and determine the amount of indemniBcation which the
defendant should -ay the com-lainant&
"he indemniBcation in this case was B=ed by the lower court at
E0,$$$, and although it could -erha-s have been calculated at
less, we do not Bnd that it is immoderately inade>uate, and this
being so we should not alter it&? @Dia/ $ San 0uan 1ght and
Transit Corp.A
+n the case of #on/ales $ Soto, it was held that the mother
would never have been entitled to any other damages than
those arising out of the loss of the services of her son, and never
to those damages which he himself might have been entitled to
claim had he not died, or arising from the in%uries that he himself
might have su9ered on account of the accident&
Because she has not -roven that her son was really earning the
amount alleged in the com-laint, nor any other sum whatever,
nor how much money he was earning by his worC either in
;recibo or in San 8uan during the days immediately -receding
his death or at any time& ;nd we are of the o-inion that this is a
necessary re>uisite, because, as the 'ivil 'ode declares that
recovery may be had for the damage caused, the damages
accruing to the -lainti9 must be shown so that the trial %udge
may have data on which to base his decision&
+n this case there was no evidence given to substantiate the loss
of earning or the damages actually incurred&
The onl& 'act pro$en in regard to this point is that 0uan
Cordo$a Soto was *illed %& a collision with the trolle&
car2 that he was earning something when he was
pre$iousl& in Areci%o. It is not shown what occupation he
had+ nor how much mone& he earned while he was there
nor while he was in San 0uan+ nor is it shown that his
mother deri$ed an& %ene(t 'rom his wages2 and 'rom this
e$idence the court cannot consider as pro$en the amount
o' the damages+ nor e$en their e3istence.
T4E COPARISON O" T4E CITED CASE 5IT4 T4E CASE AT 4AND:
- "he decision of the su-reme court of S-ain, it is to be remembered, involved
an action for the death of a man of mature years&
- "he Brst decision of the su-reme court of #orto ,ico recogniKes the -rinci-le
of -resum-tive recovery&
- "he second decision of the su-reme court of #orto ,ico concerned an action
for the death of a son of su6cient age to have an earning ca-acity&
- )one of these is our case&
- .ere -resent is the case of a young child whose death is caused by wrongful
act, leaving a -oor mother to be the loser&
- it was neither necessary nor -ossible to -rove loss of services or su--ort, or
to -rove s-ecial damage as if the ob%ect of the loss had been a horse or other
animal&
- )o doubt the damage could be greatly enhanced by showing the -ersonal
characteristics of the deceased&
- (utside of this, however, the -ecuniary loss may be estimated from the facts
at hand with reference to the general Cnowledge which all -ossess&
- "he 8udgment of award of actual damages because of death was sustained&