G.R. No.

L-29745 June 4, 1973

MERCEDES
M.
TEAGUE, petitioner,
vs.
ELENA FERNANDEZ, et al., respondent.
MAKALINTAL, J.:
The facts are stated in the decision of the Court
of Appeals as follows:
The Realistic Institute, admittedly owned and
operated by defendant-appellee Mercedes M.
Teague was a vocational school for hair and
beauty culture situated on the second floor of
the Gil-Armi Building, a two-storey, semiconcrete edifice (Exhs. "C", "C-1" to "C-5" and
"4") located at the corner of Quezon Boulevard
and Soler Street, Quiapo, Manila. The said
second floor was unpartitioned, had a total
area of about 400 square meters, and although
it had only one stairway, of about 1.50 meters
in width, it had eight windows, each of which
was provided with two fire-escape ladders
(Exh. "4"), and the presence of each of said
fire-exits was indicated on the wall (Exh. "5").
At about four o'clock in the afternoon of
October 24, 1955, a fire broke out in a store for
surplus materials located about ten meters
away from the institute. Soler Street lay
between that store and the institute. Upon
seeing the fire, some of the students in the
Realistic Institute shouted 'Fire! Fire!' and
thereafter, a panic ensued. Four instructresses
and six assistant instructress of the Institute
were present and they, together with the
registrar, tried to calm down the students, who
numbered about 180 at the time, telling them
not to be afraid because the Gil-Armi Building
would not get burned as it is made of concrete,
and that the fire was anyway, across the street.
They told the students not to rush out but just
to go down the stairway two by two, or to use
the fire-escapes. Mrs. Justitia Prieto, one of the
instructresses, took to the microphone so as to

convey to the students the above admonitions

more effectively, and she even slapped three
students in order to quiet them down. Miss
Frino Meliton, the registrar, whose desk was
near the stairway, stood up and tried with
outstretched arms to stop the students from
rushing and pushing their way to the stairs.
The panic, however, could not be subdued and
the students, with the exception of the few who
made use of fire-escapes kept on rushing and
pushing their way through the stairs, thereby
causing stampede therein.
Indeed, no part of the Gil-Armi Building caught
fire. But, after the panic was over, four
students, including Lourdes Fernandez, a sister
of plaintiffs-appellants, were found dead and
several others injured on account of the
stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez
consisted of lacerations in both eyes and on
the upper lip, contused abrasions in different
parts of the body, internal hemorrhage and
fractures in the second and third right ribs. The
cause of death, according to the autopsy
report, was "Shock due to traumatic fractures
of the ribs with perinephric hematoma and
lacerations of the conjunctiva of both eyes."
The deceased's five brothers and sisters filed
an action for damages against Mercedes M.
Teague as owner and operator of Realistic
Institute. The Court of First Instance of Manila
found for the defendant and dismissed the
case. The plaintiffs thereupon appealed to the
Court of Appeals, which by a divided vote of 3
to 2 (a special division of five members having
been constituted) rendered a judgment of
reversal and sentenced the defendant to pay
damages to the plaintiffs in the sum of

P11,000.00, plus interest at the legal rate from

the date the complaint was filed.
The case came up to this Court on a petition
for review filed by the defendant below.
The decision of the appellate court declared
that the defendant, hereinafter to be referred
to as the petitioner, was negligent and that
such negligence was the proximate cause of
the death of Lourdes Fernandez. This finding of
negligence is based primarily on the fact that
the provision of Section 491 Of the Revised
Ordinances of the City of Manila had not been
complied with in connection with the
construction and use of the Gil-Armi building
where the petitioner's vocational school was
housed. This provision reads as follows:
Sec. 491. Firepro of partitions, exits and
stairways. ... All buildings and separate
sections of buildings or buildings otherwise
known as accessorias having less than three
stories, having one or more persons domiciled
therein either temporarily or permanently, and
all public or quasi-public buildings having less
than three stories, such as hospitals,
sanitarium, schools, reformatories, places of
human detention, assembly halls, clubs,
restaurants or panciterias, and the like, shall be
provided with at least two unobstructed
stairways of not less than one meter and
twenty centimeters in width and an inclination
of not less than forty degrees from the
perpendicular, in case of large buildings more
than two stairways shall likewise be provided
when required by the chief of the fire
department, said stairways shall be placed as
far apart as possible.
The alleged violation of the ordinance abovequoted consisted in the fact that the second
storey of the Gil-Armi building had only one
stairway, 1.5 meters wide, instead of two of at

least 1.2 meters each, although at the time of

the fire the owner of the building had a second
stairway under construction.
In ruling that such non-compliance with the
City Ordinances was an act of negligence and
that such negligence was the proximate cause
of the death of Lourdes Fernandez, reliance is
based on a number of authorities in the
American jurisdiction, thus: .
The mere fact of violation of a statute is not
sufficient basis for an inference that such
violation was the proximate cause of the injury
complained. However, if the very injury has
happened which was intended to be prevented
by the statute, it has been held that violation
of the statute will be deemed to be proximate
cause of the injury. (65 C.J.S. 1156).
The generally accepted view is that violation of
a statutory duty constitutes negligence,
negligence as a matter or law, or, according to
the decisions on the question, negligence per
se for the reason that non-observance of what
the legislature has prescribed as a suitable
precaution is failure to observe that care which
an ordinarily prudent man would observe, and,
when the state regards certain acts as so liable
to injure others as to justify their absolute
prohibition, doing the forbidden act is a breach
of duty with respect to those who may be
injured thereby; or, as it has been otherwise
expressed, when the standard of care is fixed
by law, failure to conform to such standard is
negligence, negligence per se or negligence in
and of itself, in the absence of a legal
excuse. According to this view it is immaterial,
where a statute has been violated, whether the
act or omission constituting such violation
would have been regarded as negligence in the
absence of any statute on the subject or
whether there was, as a matter of fact, any

reason to anticipate that injury would result

from such violation. .... (65 C.J.S. pp. 623-628).
But the existence of an ordinance changes the
situation. If a driver causes an accident by
exceeding the speed limit, for example, do not
inquire whether his prohibited conduct was
unreasonably dangerous. It is enough that it
was prohibited. Violation of an ordinance
intended to promote safety is negligence. If by
creating the hazard which the ordinance was
intended to avoid it brings about the harm
which the ordinance was intended to prevent, it
is a legal cause of the harm. This comes only to
saying that in such circumstances the law has
no reason to ignore the causal relation which
obviously exists in fact. The law has excellent
reason to recognize it, since it is the very
relation which the makers of the ordinance
anticipated. This court has applied these
principles to speed limits and other regulations
of the manner of driving. (Ross vs. Hartman,
139 Fed. 2d 14 at 15).
... However, the fact that other happenings
causing or contributing toward an injury
intervened between the violation of a statute
or ordinance and the injury does not
necessarily make the result so remote that no
action can be maintained. The test is to be
found not in the number of intervening events
or agents, but in their character and in the
natural and probable connection between the
wrong done and the injurious consequence.
The general principle is that the violation of a
statute or ordinance is not rendered remote as
the cause of an injury by the intervention of
another agency if the occurrence of the
accident, in the manner in which it happened,
was the very thing which the statute or
ordinance was intended to Prevent. (38 Am Jur
841).

The petitioner has raised a number of issues.

The first is that Section 491 of the Revised
Ordinances of the City of Manila refers to public
buildings and hence did not apply to the GilArmi building which was of private ownership.
It will be noted from the text of the ordinance,
however, that it is not ownership which
determines the character of buildings subject
to its requirements, but rather the use or the
purpose for which a particular building is
utilized. Thus the same may be privately
owned, but if it is devoted to any one of the
purposes mentioned in the ordinance for
instance as a school, which the Realistic
Institute precisely was then the building is
within the coverage of the ordinance. Indeed
the requirement that such a building should
have two (2) separate stairways instead of only
one (1) has no relevance or reasonable relation
to the fact of ownership, but does have such
relation to the use or purpose for which the
building is devoted.
It is next contended that the obligation to
comply with the ordinance devolved upon the
owners of the building and therefore it is they
and not the petitioner herein, who is a mere
lessee, who should be liable for the violation.
The contention ignores the fact that it was the
use of the building for school purposes which
brought the same within the coverage of the
ordinance; and it was the petitioner and not
the owners who was responsible for such use.
The next issue, indeed the basic one, raised by
the petitioner is whether or not the failure to
comply with the requirement of the ordinance
was the proximate cause of the death of
Lourdes Fernandez. The case ofVillanueva Vda.
de Bataclan, et al. vs. Medina, G. R. No. L10126, October 22, 1957, is cited in support of
the contention that such failure was not the
proximate cause. It is there stated by this
Court:

The proximate legal cause is that acting first

and producing the injury, either immediately or
by settling other events in motion, all
constituting a natural and continuous chain of
events, each having a close causal connection
with its immediate predecessor, the final event
in the chain immediately affecting the injury as
a natural and probable result of the cause
which first acted, under such circumstances
that the person responsible for the first event
should, as an ordinarily prudent and intelligent
person, have reasonable ground to expect at
the moment of his act or default that an injury
to some person might probably result
therefrom.
Having in view the decision just quoted, the
petitioner relates the chain of events that
resulted in the death of Lourdes Fernandez as
follows: (1) violation of ordinance; (2) fire at a
neighboring place; (3) shouts of "Fire!, Fire!";
(4) panic in the Institute; (5) stampede; and (6)
injuries and death.
As thus projected the violation of the
ordinance, it is argued, was only a remote
cause, if at all, and cannot be the basis of
liability since there intervened a number of
independent causes which produced the injury
complained of. A statement of the doctrine
relied upon is found in Manila Electric Co. vs.
Remoquillo, L-8328, May 18, 1956, wherein this
Court, citing Corpus Juris said:
A prior and remote cause cannot be made the
basis of an action if such remote cause did
nothing more than furnish the condition or give
rise to the occasion by which the injury was
made possible, if there intervened between
such prior or remote cause and the injury a
distinct, successive unrelated, and efficient
cause of the injury, even though such injury
would not have happened but for such
condition or occasion. If no danger existed in

the
condition
except
because
of
the
independent cause, such condition was not the
proximate cause. And if an independent
negligent act or defective condition sets into
operation the circumstances which result in
injury because of the prior defective condition,
such subsequent act or condition is the
proximate cause. (45 C.J. p. 931.)
According to the petitioner "the events of fire,
panic and stampede were independent causes
with no causal connection at all with the
violation of the ordinance." The weakness in
the
argument
springs
from
a
faulty
juxtaposition of the events which formed a
chain and resulted in the injury. It is true that
the petitioner's non-compliance with the
ordinance in question was ahead of and prior to
the other events in point of time, in the sense
that it was coetaneous with its occupancy of
the building. But the violation was a continuing
one, since the ordinance was a measure of
safety designed to prevent a specific situation
which would pose a danger to the occupants of
the building. That situation was undue
overcrowding in case it should become
necessary to evacuate the building, which, it
could be reasonably foreseen, was bound to
happen under emergency conditions if there
was only one stairway available. It is true that
in this particular case there would have been
no overcrowding in the single stairway if there
had not been a fire in the neighborhood which
caused the students to panic and rush
headlong for the stairs in order to go down. But
it was precisely such contingencies or event
that the authors of the ordinance had in mind,
for under normal conditions one stairway would
be adequate for the occupants of the building.
Thus, as stated in 38 American Jurisprudence,
page 841: "The general principle is that the
violation of a statute or ordinance is not
rendered remote as the cause of an injury by
the intervention of another agency if the

occurrence of the accident, in the manner in

which it happened, was the very thing which
the statute or ordinance was intended to
prevent." To consider the violation of the
ordinance as the proximate cause of the injury
does not portray the situation in its true
perspective; it would be more accurate to say
that the overcrowding at the stairway was the
proximate cause and that it was precisely what
the ordinance intended to prevent by requiring
that there be two stairways instead of only one.
Under the doctrine of the cases cited by the
respondents, the principle of proximate cause
applies to such violation.
A procedural point mentioned by the petitioner
is that the complaint did not specifically allege
that the ordinance in question had been
violated. The violation, however, as an act of
negligence which gave rise to liability, was
sufficiently comprehended within paragraph 7
of the complaint, which reads: .
Par. 7. That the death of Lourdes Fernandez
was due to the gross negligence of the
defendant who failed to exercise due care and
diligence for the safety of its students in not
providing the building with adequate fire exits
and in not practicing fire drill exercises to avoid
the stampede, aside from the fact that the
defendant did not have a permit to use the
building as a school-house.
The decision appealed from is affirmed, with
costs.

G.R. No. 186412

2011

September 7,

PEOPLE OF THE PHILIPPINES, PlaintiffAppellee,

vs.
ORLITO VILLACORTA, Accused-Appellant.
DECISION
LEONARDO-DE CASTRO, J.:
On appeal is the Decision dated July 30, 2008
of the Court of Appeals in CA-G.R. CR.-H.C. No.
02550, which affirmed the Decision 2 dated
September 22, 2006 of the Regional Trial Court
(RTC), Branch 170, of Malabon, in Criminal Case
No. 27039-MN, finding accused-appellant Orlito
Villacorta (Villacorta) guilty of murder, and
sentencing him to suffer the penalty of
reclusion perpetua and to pay the heirs of
Danilo Cruz (Cruz) the sum ofP50,000.00 as
civil indemnity, plus the costs of suit.
1

On June 21, 2002, an Information 3 was filed

against Villacorta charging him with the crime
of murder, as follows:
That on or about 23rd day of January 2002, in
Navotas, Metro Manila, and within the
jurisdiction of this Honorable Court, the abovenamed accused, armed with a sharpened
bamboo stick, with intent to kill, treachery and
evident premeditation, did then and there
willfully, unlawfully and feloniously attack,
assault and stab with the said weapon one
DANILO SALVADOR CRUZ, thereby inflicting
upon the victim serious wounds which caused
his immediate death.
When arraigned on September
Villacorta pleaded not guilty.4

9,

2002,

During trial, the prosecution presented as

witnesses Cristina Mendeja (Mendeja) and Dr.
Domingo Belandres, Jr. (Dr. Belandres).
Mendeja narrated that on January 23, 2002,
she was tending her sari-sari store located at
C-4 Road, Bagumbayan, Navotas. Both Cruz
and Villacorta were regular customers at
Mendejas store. At around two oclock in the
morning, while Cruz was ordering bread at
Mendejas store, Villacorta suddenly appeared
and, without uttering a word, stabbed Cruz on
the left side of Cruzs body using a sharpened
bamboo stick. The bamboo stick broke and was
left in Cruzs body. Immediately after the
stabbing incident, Villacorta fled. Mendeja gave
chase but failed to catch Villacorta. When
Mendeja returned to her store, she saw her
neighbor Aron removing the broken bamboo
stick from Cruzs body.5 Mendeja and Aron then
brought Cruz to Tondo Medical Center. 6
Dr. Belandres was Head of the Tetanus
Department at the San Lazaro Hospital. When
Cruz sustained the stab wound on January 23,
2002, he was taken to the Tondo Medical
Center, where he was treated as an outpatient. Cruz was only brought to the San
Lazaro Hospital on February 14, 2002, where
he died the following day, on February 15,
2002. While admitting that he did not
personally treat Cruz, Dr. Belandres was able to
determine, using Cruzs medical chart and
diagnosis, that Cruz died of tetanus infection
secondary to stab wound.7 Dr. Belandres
specifically described the cause of Cruzs death
in the following manner:
The wound was exposed x x spurs concerted,
the patient developed difficulty of opening the
mouth, spastivity of the body and abdominal
pain and the cause of death is hypoxic
encephalopathy neuro transmitted due to

upper G.I. bleeding x x x. Diagnosed of

Tetanus, Stage III.8
The prosecution also intended to present Dr.
Deverni Matias (Dr. Matias), who attended to
Cruz at the San Lazaro Hospital, but the
prosecution and defense agreed to dispense
with Dr. Matias testimony based on the
stipulation that it would only corroborate Dr.
Belandres testimony on Cruz dying of tetanus.
For its part, the defense presented Villacorta
himself, who denied stabbing Cruz. Villacorta
recounted that he was on his way home from
work at around two oclock in the morning of
January 21, 2002. Upon arriving home,
Villacorta drank coffee then went outside to
buy cigarettes at a nearby store. When
Villacorta was about to leave the store, Cruz
put his arm around Villacortas shoulder. This
prompted Villacorta to box Cruz, after which,
Villacorta went home. Villacorta did not notice
that Cruz got hurt. Villacorta only found out
about Cruzs death upon his arrest on July 31,
2002.9
On September 22, 2006, the RTC rendered a
Decision finding Villacorta guilty of murder,
qualified by treachery. The dispositive portion
of said Decision reads:
WHEREFORE, in the light of the foregoing, the
Court finds accused Orlito Villacorta guilty
beyond reasonable doubt of the crime of
Murder and is hereby sentenced to suffer the
penalty of reclusion perpetua and to pay the
heirs of Danilo Cruz the sum of P50,000.00 as
civil indemnity for the death of said victim plus
the costs of suit.10
Villacorta, through his counsel from the Public
Attorneys Office (PAO), filed a notice of appeal
to assail his conviction by the RTC. 11 The Court

of Appeals directed the PAO to file Villacortas

brief, within thirty days from receipt of notice.
Villacorta filed his Appellants Brief 12 on May
30, 2007; while the People, through the Office
of the Solicitor General (OSG), filed its
Appellee's Brief13 on October 2, 2007.
On July 30, 2008, the Court of Appeals
promulgated its Decision affirming in toto the
RTC judgment of conviction against Villacorta.
Hence, Villacorta comes before this Court via
the instant appeal.
Villacorta manifested that he would no longer
file a supplemental brief, as he was adopting
the Appellant's Brief he filed before the Court
of Appeals.14 The OSG, likewise, manifested
that it was no longer filing a supplemental
brief. 15
In his Appellants Brief, Villacorta raised the
following assignment of errors:
I
THE COURT A QUO GRAVELY ERRED IN FINDING
THE ACCUSED-APPELLANT GUILTY OF THE
CRIME CHARGED DESPITE THE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
II
THE TRIAL COURT GRAVELY
APPRECIATING
THE
CIRCUMSTANCE OF TREACHERY.
III

ASSUMING ARGUENDO THAT THE ACCUSED

COMMITTED A CRIME, HE COULD ONLY BE
HELD LIABLE FOR SLIGHT PHYSICAL INJURIES.16
Villacorta assails the credibility of Mendeja, an
eyewitness to the stabbing incident. It was
Mendeja who positively identified Villacorta as
the one who stabbed Cruz in the early morning
of January 23, 2002. Villacorta asserts that
Mendejas account of the stabbing incident is
replete with inconsistencies and incredulities,
and is contrary to normal human experience,
such as: (1) instead of shouting or calling for
help when Villacorta allegedly stabbed Cruz,
Mendeja attempted to run after and catch
Villacorta; (2) while, by Mendejas own account,
there were other people who witnessed the
stabbing and could have chased after
Villacorta, yet, oddly, only Mendeja did; (3) if
Cruz was stabbed so swiftly and suddenly as
Mendeja described, then it would have been
physically improbable for Mendeja to have
vividly recognized the perpetrator, who
immediately ran away after the stabbing; (4)
after the stabbing, both Villacorta and Cruz ran
in opposite directions; and (5) Mendeja had
said that the bamboo stick, the alleged murder
weapon, was left at her store, although she had
also stated that the said bamboo stick was left
embedded in Cruzs body. Villacorta maintains
that the aforementioned inconsistencies are
neither trivial nor inconsequential, and should
engender some doubt as to his guilt.
We are not persuaded.

ERRED IN
QUALIFYING

To begin with, it is fundamental that the

determination by the trial court of the
credibility of witnesses, when affirmed by the
appellate court, is accorded full weight and
credit as well as great respect, if not conclusive
effect. Such determination made by the trial
court proceeds from its first-hand opportunity
to observe the demeanor of the witnesses,

their conduct and attitude under grilling

examination, thereby placing the trial court in
the unique position to assess the witnesses'
credibility and to appreciate their truthfulness,
honesty and candor.17
In this case, both the RTC and the Court of
Appeals gave full faith and credence to the
testimony of prosecution witness Mendeja. The
Court of Appeals rejected Villacortas attempts
to impugn Mendejas testimony, thus:
Appellants reason for concluding that witness
Mendejas testimony is incredible because she
did not shout or call for help and instead run
after the appellant, fails to impress the Court
because persons who witness crimes react in
different ways.
"x x x the makings of a human mind are
unpredictable; people react differently and
there is no standard form of behavior when one
is confronted by a shocking incident.
Equally lacking in merit is appellants second
reason which is, other persons could have run
after the appellant after the stabbing incident.
As explained by witness Mendeja, the other
person whom she identified as Aron was left to
assist the appellant who was wounded. Further,
the stabbing occurred at 2:00 oclock in the
morning, a time when persons are expected to
be asleep in their house, not roaming the
streets.
His [Villacortas] other argument that the
swiftness of the stabbing incident rendered
impossible or incredible the identification of the
assailant cannot likewise prosper in view of his
admission that he was in the store of witness
Mendeja on January 23, 2002 at 2:00 oclock in
the morning and that he assaulted the victim
by boxing him.

Even if his admission is disregarded still the

evidence of record cannot support appellants
argument. Appellant and the victim were
known to witness Mendeja, both being her
friends and regular customers. There was light
in front of the store. An opening in the store
measuring 1 and meters enables the person
inside to see persons outside, particularly
those buying articles from the store. The victim
was in front of the store buying bread when
attacked. Further, immediately after the
stabbing, witness Mendeja ran after the
appellant giving her additional opportunity to
identify the malefactor. Thus, authorship of the
attack can be credibly ascertained.18

which cannot be accorded greater evidentiary

weight than the declaration of credible
witnesses who testify on affirmative matters.20

Moreover, Villacorta was unable to present any

reason or motivation for Mendeja to fabricate
such a lie and falsely accuse Villacorta of
stabbing Cruz on January 23, 2002. We have
ruled time and again that where the
prosecution eyewitness was familiar with both
the victim and accused, and where the locus
criminis afforded good visibility, and where no
improper motive can be attributed to the
witness for testifying against the accused, then
her version of the story deserves much
weight.19

Proximate cause has been defined as "that

cause, which, in natural and continuous
sequence,
unbroken
by
any
efficient
intervening cause, produces the injury, and
without which the result would not have
occurred."21

The purported inconsistencies in Mendejas

testimony pointed out by Villacorta are on
matters that have no bearing on the
fundamental fact which Mendeja testified on:
that Villacorta stabbed Cruz in the early
morning of January 23, 2002, right in front of
Mendejas store.
In the face of Mendejas positive identification
of Villacorta as Cruzs stabber, Villacorta could
only muster an uncorroborated denial. Denial,
like alibi, as an exonerating justification, is
inherently weak and if uncorroborated,
regresses to blatant impotence. Like alibi, it
also constitutes self-serving negative evidence

Hence, we do not deviate from the foregoing

factual findings of the RTC, as affirmed by the
Court of Appeals.
Nevertheless, there is merit in the argument
proffered by Villacorta that in the event he is
found to have indeed stabbed Cruz, he should
only be held liable for slight physical injuries
for the stab wound he inflicted upon Cruz. The
proximate cause of Cruzs death is the tetanus
infection, and not the stab wound.

In this case, immediately after he was stabbed

by Villacorta in the early morning of January
23, 2002, Cruz was rushed to and treated as an
out-patient at the Tondo Medical Center. On
February 14, 2002, Cruz was admitted to the
San Lazaro Hospital for symptoms of severe
tetanus infection, where he died the following
day, on February 15, 2002. The prosecution did
not present evidence of the emergency
medical treatment Cruz received at the Tondo
Medical Center, subsequent visits by Cruz to
Tondo Medical Center or any other hospital for
follow-up medical treatment of his stab wound,
or Cruzs activities between January 23 to
February 14, 2002.
In Urbano v. Intermediate Appellate Court, 22 the
Court was confronted with a case of very
similar factual background as the one at bar.
During an altercation on October 23, 1980,
Urbano hacked Javier with a bolo, inflicting an

incised wound on Javiers hand. Javier was

treated by Dr. Meneses. On November 14,
1980, Javier was rushed to the hospital with
lockjaw and convulsions. Dr. Exconde, who
attended to Javier, found that Javiers serious
condition was caused by tetanus infection. The
next day, on November 15, 1980, Javier died.
An Information was filed against Urbano for
homicide. Both the Circuit Criminal Court and
the Intermediate Appellate Court found Urbano
guilty of homicide, because Javier's death was
the natural and logical consequence of
Urbano's unlawful act. Urbano appealed before
this Court, arguing that Javiers own negligence
was the proximate cause of his death. Urbano
alleged that when Dr. Meneses examined
Javiers wound, he did not find any tetanus
infection and that Javier could have acquired
the tetanus germs when he returned to work
on his farm only two (2) weeks after sustaining
his injury. The Court granted Urbanos appeal.
We quote extensively from the ratiocination of
the Court in Urbano:
The issue, therefore, hinges on whether or not
there was an efficient intervening cause from
the time Javier was wounded until his death
which would exculpate Urbano from any
liability for Javier's death.
We look into the nature of tetanus"The incubation period of tetanus, i.e., the time
between injury and the appearance of
unmistakable symptoms, ranges from 2 to 56
days. However, over 80 percent of patients
become symptomatic within 14 days. A short
incubation period indicates severe disease,
and when symptoms occur within 2 or 3 days
of injury the mortality rate approaches 100
percent.

"Non-specific premonitory symptoms such as

restlessness, irritability, and headache are
encountered occasionally, but the commonest
presenting complaints are pain and stiffness in
the jaw, abdomen, or back and difficulty
swallowing. As the disease progresses, stiffness
gives way to rigidity, and patients often
complain of difficulty opening their mouths. In
fact, trismus is the commonest manifestation
of tetanus and is responsible for the familiar
descriptive name of lockjaw. As more muscles
are involved, rigidity becomes generalized, and
sustained contractions called risus sardonicus.
The intensity and sequence of muscle
involvement is quite variable. In a small
proportion of patients, only local signs and
symptoms develop in the region of the injury. In
the vast majority, however, most muscles are
involved to some degree, and the signs and
symptoms encountered depend upon the major
muscle groups affected.
"Reflex spasm usually occur within 24 to 72
hours of the first symptoms, an interval
referred to as the onset time. As in the case of
the incubation period, a short onset time is
associated with a poor prognosis. Spasms are
caused by sudden intensification of afferent
stimuli arising in the periphery, which increases
rigidity and causes simultaneous and excessive
contraction of muscles and their antagonists.
Spasms may be both painful and dangerous. As
the disease progresses, minimal or inapparent
stimuli produce more intense and longer
lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm
or tonic contraction of respiratory muscles
which prevent adequate ventilation. Hypoxia
may then lead to irreversible central nervous
system damage and death.
"Mild tetanus is characterized by an incubation
period of at least 14 days and an onset time of
more than 6 days.Trismus is usually present,

but dysphagia is absent and generalized

spasms are brief and mild. Moderately severe
tetanus has a somewhat shorter incubation
period and onset time; trismus is marked,
dysphagia and generalized rigidity are present,
but ventilation remains adequate even during
spasms. The criteria for severe tetanus include
a short incubation time, and an onset time of
72 hrs., or less, severe trismus, dysphagia and
rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of
Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to
tetanus found inside a man's body depends on
the incubation period of the disease.
In the case at bar, Javier suffered a 2-inch
incised wound on his right palm when he
parried the bolo which Urbano used in hacking
him. This incident took place on October 23,
1980. After 22 days, or on November 14, 1980,
he suffered the symptoms of tetanus, like
lockjaw and muscle spasms. The following day,
November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by
the appellant was already infected by tetanus
germs at the time, it is more medically
probable that Javier should have been infected
with only a mild case of tetanus because the
symptoms of tetanus appeared on the 22nd
day after the hacking incident or more than 14
days after the infliction of the wound.
Therefore, the onset time should have been
more than six days. Javier, however, died on
the second day from the onset time. The more
credible conclusion is that at the time Javier's
wound was inflicted by the appellant, the
severe form of tetanus that killed him was not
yet present. Consequently, Javier's wound
could have been infected with tetanus after the
hacking incident. Considering the circumstance

surrounding Javier's death, his wound could

have been infected by tetanus 2 or 3 or a few
but not 20 to 22 days before he died.23
The incubation period for tetanus infection and
the length of time between the hacking
incident and the manifestation of severe
tetanus infection created doubts in the mind of
the Court that Javier acquired the severe
tetanus infection from the hacking incident. We
explained in Urbano that:
The rule is that the death of the victim must be
the direct, natural, and logical consequence of
the wounds inflicted upon him by the accused.
(People v. Cardenas, supra) And since we are
dealing with a criminal conviction, the proof
that the accused caused the victim's death
must convince a rational mind beyond
reasonable doubt. The medical findings,
however, lead us to a distinct possibility that
the infection of the wound by tetanus was an
efficient intervening cause later or between the
time Javier was wounded to the time of his
death. The infection was, therefore, distinct
and foreign to the crime. (People v. Rellin, 77
Phil. 1038).
Doubts are present. There is a likelihood that
the wound was but the remote cause and its
subsequent infection, for failure to take
necessary precautions, with tetanus may have
been the proximate cause of Javier's death with
which the petitioner had nothing to do. As we
ruled in Manila Electric Co. v. Remoquillo, et al.
(99 Phil. 118).
"A prior and remote cause cannot be made the
basis of an action if such remote cause did
nothing more than furnish the condition or give
rise to the occasion by which the injury was
made possible, if there intervened between
such prior or remote cause and the injury a
distinct, successive, unrelated, and efficient

cause of the injury, even though such injury

would not have happened but for such
condition or occasion. If no danger existed in
the
condition
except
because
of
the
independent cause, such condition was not the
proximate cause. And if an independent
negligent act or defective condition sets into
operation the instances, which result in injury
because of the prior defective condition, such
subsequent act or condition is the proximate
cause." (45 C.J. pp. 931-932). (at p. 125)24

since the essential ingredients of slight

physical injuries constitute and form part of
those constituting the offense of murder. 25

medical attendance for more than nine days.

Without such evidence, the offense is only
slight physical injuries.28

We cannot hold Villacorta criminally liable for

attempted or frustrated murder because the
prosecution was not able to establish
Villacortas intent to kill. In fact, the Court of
Appeals expressly observed the lack of
evidence to prove such an intent beyond
reasonable doubt, to wit:

We still appreciate treachery as an aggravating

circumstance, it being sufficiently alleged in
the Information and proved during trial.

We face the very same doubts in the instant

case that compel us to set aside the conviction
of Villacorta for murder. There had been an
interval of 22 days between the date of the
stabbing and the date when Cruz was rushed
to San Lazaro Hospital, exhibiting symptoms of
severe tetanus infection. If Cruz acquired
severe tetanus infection from the stabbing,
then the symptoms would have appeared a lot
sooner than 22 days later. As the Court noted
in Urbano, severe tetanus infection has a short
incubation period, less than 14 days; and those
that exhibit symptoms with two to three days
from the injury, have one hundred percent
(100%) mortality. Ultimately, we can only
deduce that Cruzs stab wound was merely the
remote cause, and its subsequent infection
with tetanus might have been the proximate
cause of Cruz's death. The infection of Cruzs
stab wound by tetanus was an efficient
intervening cause later or between the time
Cruz was stabbed to the time of his death.

Appellant stabbed the victim only once using a

sharpened bamboo stick, hitting him on the left
side of the body and then immediately fled.
The instrument used is not as lethal as those
made of metallic material. The part of the body
hit is not delicate in the sense that instant
death can ensue by reason of a single stab
wound. The assault was done only once. Thus,
there is doubt as to whether appellant had an
intent to kill the victim, which should be
resolved in favor of the appellant. x x x.26

However, Villacorta is not totally without

criminal liability.1wphi1 Villacorta is guilty of
slight physical injuries under Article 266(1) of
the Revised Penal Code for the stab wound he
inflicted upon Cruz. Although the charge in the
instant case is for murder, a finding of guilt for
the lesser offense of slight physical injuries
may be made considering that the latter
offense is necessarily included in the former

The intent must be proved in a clear and

evident manner to exclude every possible
doubt as to the homicidal (or murderous) intent
of the aggressor. The onus probandi lies not on
accused-appellant but on the prosecution. The
inference that the intent to kill existed should
not be drawn in the absence of circumstances
sufficient to prove this fact beyond reasonable
doubt. When such intent is lacking but wounds
were inflicted, the crime is not frustrated
murder but physical injuries only.27
Evidence on record shows that Cruz was
brought to Tondo Medical Center for medical
treatment immediately after the stabbing
incident.1avvphi1 Right after receiving medical
treatment, Cruz was then released by the
Tondo Medical Center as an out-patient. There
was no other evidence to establish that Cruz
was incapacitated for labor and/or required

The Information specified that "accused, armed

with a sharpened bamboo stick, with intent to
kill, treachery and evident premeditation, did
then and there willfully, unlawfully and
feloniously attack, assault and stab with the
said weapon one DANILO SALVADOR CRUZ x x
x."
Treachery exists when an offender commits any
of the crimes against persons, employing
means, methods or forms which tend directly
or especially to ensure its execution, without
risk to the offender, arising from the defense
that the offended party might make. This
definition sets out what must be shown by
evidence to conclude that treachery existed,
namely: (1) the employment of such means of
execution as would give the person attacked no
opportunity for self-defense or retaliation; and
(2) the deliberate and conscious adoption of
the means of execution. To reiterate, the
essence of qualifying circumstance is the
suddenness, surprise and the lack of
expectation that the attack will take place,
thus, depriving the victim of any real
opportunity for self-defense while ensuring the
commission of the crime without risk to the
aggressor.29 Likewise, even when the victim
was forewarned of the danger to his person,
treachery may still be appreciated since what
is decisive is that the execution of the attack
made it impossible for the victim to defend
himself or to retaliate.30
Both the RTC and the Court of Appeals found
that treachery was duly proven in this case,

and we sustain such finding. Cruz, the victim,

was attacked so suddenly, unexpectedly, and
without provocation. It was two oclock in the
morning of January 23, 2002, and Cruz, who
was out buying bread at Mendejas store, was
unarmed. Cruz had his guard down and was
totally unprepared for an attack on his person.
Villacorta suddenly appeared from nowhere,
armed with a sharpened bamboo stick, and
without uttering a word, stabbed Cruz at the
left side of his body, then swiftly ran away.
Villacortas treacherous mode of attack left
Cruz with no opportunity at all to defend
himself or retaliate.
Article 266(1) of the Revised Penal Code
provides:
ART. 266. Slight physical injuries and
maltreatment. The crime of slight physical
injuries shall be punished:
1. By arresto menor when the offender has
inflicted
physical
injuries
which
shall
incapacitate the offended party from labor from
one to nine days, or shall require medical
attendance during the same period.
The penalty of arresto menor spans from one
(1) day to thirty (30) days. 31 The Indeterminate
Sentence Law does not apply since said law
excludes from its coverage cases where the
penalty imposed does not exceed one (1)
year.32 With the aggravating circumstance of
treachery, we can sentence Villacorta with
imprisonment anywhere within arresto menor
in the maximum period, i.e., twenty-one (21) to
thirty (30) days. Consequently, we impose
upon Villacorta a straight sentence of thirty
(30) days of arresto menor; but given that
Villacorta has been in jail since July 31, 2002
until present time, already way beyond his
imposed sentence, we order his immediate
release.

Under paragraph (1), Article 2219 of the Civil

Code, moral damages may be recovered in a
criminal offense resulting in physical injuries.
Moral damages compensate for the mental
anguish, serious anxiety, and moral shock
suffered by the victim and his family as being a
proximate result of the wrongful act. An award
requires no proof of pecuniary loss. Pursuant to
previous jurisprudence, an award of Five
Thousand Pesos (P5,000.00) moral damages is
appropriate for less serious, as well as slight
physical injuries.33
WHEREFORE, the Decision dated July 30, 2008
of the Court of Appeals in CA-G.R. CR.-H.C. No.
02550, affirming the Decision dated September
22, 2006 of the Regional Trial Court, Branch
170, of Malabon, in Criminal Case No. 27039MN, is REVERSED and SET ASIDE. A new
judgment is entered finding Villacorta GUILTY
beyond reasonable doubt of the crime of slight
physical injuries, as defined and punished by
Article 266 of the Revised Penal Code, and
sentenced to suffer the penalty of thirty (30)
days arresto menor. Considering that Villacorta
has been incarcerated well beyond the period
of the penalty herein imposed, the Director of
the Bureau of Prisons is ordered to cause
Villacortas
immediate
release,
unless
Villacorta is being lawfully held for another
cause, and to inform this Court, within five (5)
days from receipt of this Decision, of the
compliance with such order. Villacorta is
ordered to pay the heirs of the late Danilo Cruz
moral damages in the sum of Five Thousand
Pesos (P5,000.00).
SO ORDERED.

G.R. No. L-15688

1921

November 19,

REMIGIO RODRIGUEZ, ET AL., plaintiffsappellees,

vs.
THE
MANILA
RAILROAD
COMPANY, defendant-appellant.
Orense
&
Vera
for
Domingo Imperial for appellees.

appellant.

STREET, J.:
This action was instituted jointly by Remigio
Rodrigueza and three others in the Court of
First Instance of the Province of Albay to
recover a sum of money of the Manila Railroad
Company as damages resulting from a fire
kindled by sparks from a locomotive engine
under the circumstances set out below. Upon
hearing the cause upon the complaint, answer
and an agreed statement of facts, the trial
judge
rendered
judgment
against
the
defendant company in favor of the plaintiffs
and awarded to them the following sums
respectively as damages, to wit, (1) to Remigio
Rodrigueza, P3,000; (2) to Domingo Gonzaga,
P400; (3) to Cristina Luna, P300; and (4) to
Perfecta Losantas, P150; all with lawful interest
from March 21, 1919. From this judgment the
defendant appealed.
The facts as appearing from the agreed
statement, in relation with the complaint, are
to the effect that the defendant Railroad
Company operates a line through the district of
Daraga in the municipality of Albay; that on
January 29, 1918, as one of its trains passed
over said line, a great quantity of sparks were
emitted
from
the
smokestack
of
the

locomotive,
and
fire
was
thereby
communicated
to
four
houses
nearby
belonging to the four plaintiffs respectively,
and the same were entirely consumed. All of
these houses were of light construction with
the exception of the house of Remigio
Rodrigueza, which was of strong materials,
though the roof was covered with nipa and
cogon. The fire occurred immediately after the
passage of the train, and a strong wind was
blowing at the time. It does not appear either
in the complaint or in the agreed statement
whose house caught fire first, though it is
stated in the appellant's brief that the fire was
first communicated to the house of Remigio
Rodrigueza, from whence it spread to the
others.
In the fourth paragraph of the complaint
which is admitted to be true it is alleged that
the
defendant
Railroad
Company
was
conspicuously negligent in relation to the origin
of said fire, in the following respects, namely,
first, in failing to exercise proper supervision
over the employees in charge of the
locomotive;
secondly,
in
allowing
the
locomotive which emitted these sparks to be
operated without having the smokestack
protected by some device for arresting sparks;
thirdly, in using in its locomotive upon this
occasion Bataan coal, a fuel of known inferior
quality which, upon combustion, produces
sparks in great quantity.
The sole ground upon which the defense is
rested is that the house of Remigio Rodrigueza
stood partly within the limits of the land owned
by the defendant company, though exactly
how far away from the company's track does
not appear. It further appears that, after the
railroad track was laid, the company notified
Rodrigueza to get his house off the land of the
company and to remove it from its exposed
position. Rodrigueza did not comply with this

suggestion, though he promised to put an iron

roof on his house, which he never did. Instead,
he changed the materials of the main roof to
nipa,
leaving
the
kitchen
and mediaaguas covered with cogon. Upon this fact it is
contended for the defense that there was
contributory negligence on the part of Remigio
Rodrigueza in having his house partly on the
premises of the Railroad Company, and that for
this reason the company is not liable. This
position is in our opinion untenable for the
reasons which we shall proceed to state.
In the first place, it will be noted that the fact
suggested as constituting a defense to this
action could not in any view of the case
operate as a bar to recovery by the three
plaintiffs other than Remigio Rodrigueza, even
assuming that the fire was first communicated
to his house; for said three plaintiffs are in
nowise implicated in the act which supposedly
constitutes the defense. In this connection it
will be observed that the right of action of each
of these plaintiffs is totally distinct from that of
his co-plaintiff, so much so that each might
have sued separately, and the defendant if it
had seen fit to do so, might in this case have
demurred successfully to the complaint for
misjoinder of parties plaintiff. The fact that the
several rights of action of the different plaintiffs
arose simultaneously out of one act of the
defendant is not sufficient of itself to require, or
even permit, the joinder of such parties as
coplaintiffs in a single action (30 Cyc., 114) if
objection had been made thereto. Domingo
Gonzaga, Cristina Luna, and Perfecta Losantas
are therefore entitled to recover upon the
admitted fact that this fire originated in the
negligent acts of the defendant; and the
circumstance that the fire may have been
communicated to their houses through the
house of Remegio Rodrigueza, instead of
having been directly communicated from the
locomotive, is immaterial. (See 38 Am. Dec.,

64, 77; 1 11 R. C. L., 968-971; Kansas City, etc.

Railroad Co. vs. Blaker, 64 L. R. A., 81
Pennsylvania Railroad Co. vs. Hope, 80 Pa. St.,
373; 21 Am. Rep. 100.)
With respect to the case of Remegio
Rodrigueza it is to be inferred that his house
stood upon this ground before the Railroad
Company laid its line over this course; and at
any rate there is no proof that this plaintiff had
unlawfully intruded upon the railroad's property
in the act of building his house. What really
occurred undoubtedly is that the company,
upon making this extension, had acquired the
land only, leaving the owner of the house free
to remove it. Hence he cannot be considered to
have been a trespasser in the beginning.
Rather, he was there at the sufferance of the
defendant company, and so long as his house
remained in this exposed position, he
undoubtedly assumed the risk of any loss that
might have resulted from fires occasioned by
the defendant's locomotives if operated and
managed with ordinary care. But he cannot be
held to have assumed the risk of any damage
that might result from the unlawful negligence
acts of the defendant. Nobody is bound to
anticipate and defend himself against the
possible negligence of another. Rather he has a
right to assume that the other will use the care
of the ordinary prudent man. (Philadelphia and
Reading Railroad Co. vs. Hendrickson, 80 Pa.
St., 182; 21 Am. Rep., 97.)
In the situation now under consideration the
proximate and only cause of the damage that
occurred was the negligent act of the
defendant
in
causing
this
fire.
The
circumstance that Remigio Rodrigueza's house
was partly on the property of the defendant
company and therefore in dangerous proximity
to passing locomotives was an antecedent
condition that may in fact have made the
disaster possible, but that circumstance cannot

be imputed to him as contributory negligence

destructive of his right of action, because, first,
that condition was not created by himself;
secondly, because his house remained on this
ground by the toleration, and therefore with
the consent of the Railroad Company; and
thirdly, because even supposing the house to
be improperly there, this fact would not justify
the defendant in negligently destroying it.
(Grand
Trunk
Railway
of
Canada vs. Richardson, 91 U. S., 454; 23 L. ed.,
356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va.,
345, 350.)lawphil.net
The circumstance that the defendant company,
upon
planting
its
line
near
Remigio
Rodrigueza's house, had requested or directed
him to remove it, did not convert his
occupancy into a trespass, or impose upon him
any additional responsibility over and above
what the law itself imposes in such situation. In
this connection it must be remembered that
the company could at any time have removed
said house in the exercise of the power of
eminent domain, but it elected not to do so.
Questions similar to that now before us have
been under the consideration of American
courts many times, and their decisions are
found to be uniformly favorable to recovery
where the property destroyed has been placed
in whole or in part on the right of way of the
railroad company with its express or implied
consent. (L. R. Martin Timber Co. vs. Great
Northern Railway Co., 123 Minn., 423; Ann.
Cas.,
1915A,
p.
496,
note;
Burroughs vs.Housatonic R.R. Co., 15 Conn.,
124; 38 Am. Dec., 64; 74; Southern Ry.
Co. vs. Patterson, 105 Va. 6; 8 Ann. Cas., 44.)
And the case for the plaintiff is apparently
stronger where the company constructs its line
in proximity to a house already built and fails to
condemn it and remove it from its right of way.

From what has been said it is apparent that the

judgment appealed from is in all respect in
conformity with the law, and the same is
accordingly affirmed, with costs. So ordered.
Johnson, Araullo, Avancea and Villamor, JJ.,
concur.

G.R. No. L-47851 October 3, 1986

JUAN F. NAKPIL & SONS, and JUAN F.
NAKPIL, petitioners,
vs.
THE COURT OF APPEALS, UNITED
CONSTRUCTION COMPANY, INC., JUAN J.
CARLOS, and the PHILIPPINE BAR
ASSOCIATION, respondents.
G.R. No. L-47863 October 3, 1986
THE UNITED CONSTRUCTION CO., INC.,
petitioner,
vs.
COURT OF APPEALS, ET AL., respondents.
G.R. No. L-47896 October 3, 1986
PHILIPPINE BAR ASSOCIATION, ET AL.,
petitioners,
vs.
COURT OF APPEALS, ET AL., respondents.
PARAS, J.:
These are petitions for review on certiorari of
the November 28, 1977 decision of the Court of
Appeals in CA-G.R. No. 51771-R modifying the
decision of the Court of First Instance of Manila,
Branch V, in Civil Case No. 74958 dated
September 21, 1971 as modified by the Order
of the lower court dated December 8, 1971.
The Court of Appeals in modifying the decision
of the lower court included an award of an
additional amount of P200,000.00 to the
Philippine Bar Association to be paid jointly and
severally by the defendant United Construction
Co. and by the third-party defendants Juan F.
Nakpil and Sons and Juan F. Nakpil.
The dispositive portion of the modified decision
of the lower court reads:
WHEREFORE, judgment is hereby rendered:
(a) Ordering defendant United Construction
Co., Inc. and third-party defendants (except
Roman Ozaeta) to pay the plaintiff, jointly and
severally, the sum of P989,335.68 with interest
at the legal rate from November 29, 1968, the

date of the filing of the complaint until full

payment;
(b) Dismissing the complaint with respect to
defendant Juan J. Carlos;
(c) Dismissing the third-party complaint;
(d) Dismissing the defendant's and third-party
defendants' counterclaims for lack of merit;
(e) Ordering defendant United Construction
Co., Inc. and third-party defendants (except
Roman Ozaeta) to pay the costs in equal
shares.
SO ORDERED. (Record on Appeal p. 521; Rollo,
L- 47851, p. 169).
The dispositive portion of the decision of the
Court of Appeals reads:
WHEREFORE, the judgment appealed from is
modified to include an award of P200,000.00 in
favor of plaintiff-appellant Philippine Bar
Association, with interest at the legal rate from
November 29, 1968 until full payment to be
paid jointly and severally by defendant United
Construction Co., Inc. and third party
defendants (except Roman Ozaeta). In all other
respects, the judgment dated September 21,
1971 as modified in the December 8, 1971
Order of the lower court is hereby affirmed with
COSTS to be paid by the defendant and third
party defendant (except Roman Ozaeta) in
equal shares.
SO ORDERED.
Petitioners Juan F. Nakpil & Sons in L-47851 and
United Construction Co., Inc. and Juan J. Carlos
in L-47863 seek the reversal of the decision of
the Court of Appeals, among other things, for

exoneration from liability while petitioner

Philippine Bar Association in L-47896 seeks the
modification of aforesaid decision to obtain an
award of P1,830,000.00 for the loss of the PBA
building plus four (4) times such amount as
damages resulting in increased cost of the
building, P100,000.00 as exemplary damages;
and P100,000.00 as attorney's fees.
These petitions arising from the same case
filed in the Court of First Instance of Manila
were consolidated by this Court in the
resolution of May 10, 1978 requiring the
respective respondents to comment. (Rollo, L47851, p. 172).
The facts as found by the lower court (Decision,
C.C. No. 74958; Record on Appeal, pp. 269348; pp. 520-521; Rollo, L-47851, p. 169) and
affirmed by the Court of Appeals are as follows:
The plaintiff, Philippine Bar Association, a civicnon-profit association, incorporated under the
Corporation Law, decided to construct an office
building on its 840 square meters lot located at
the comer of Aduana and Arzobispo Streets,
Intramuros, Manila. The construction was
undertaken by the United Construction, Inc. on
an "administration" basis, on the suggestion of
Juan J. Carlos, the president and general
manager of said corporation. The proposal was
approved by plaintiff's board of directors and
signed by its president Roman Ozaeta, a thirdparty defendant in this case. The plans and
specifications for the building were prepared by
the other third-party defendants Juan F. Nakpil
& Sons. The building was completed in June,
1966.
In the early morning of August 2, 1968 an
unusually strong earthquake hit Manila and its
environs and the building in question sustained
major damage. The front columns of the
building buckled, causing the building to tilt

forward dangerously. The tenants vacated the

building in view of its precarious condition. As a
temporary remedial measure, the building was
shored up by United Construction, Inc. at the
cost of P13,661.28.
On November
29, 1968, the plaintiff
commenced this action for the recovery of
damages arising from the partial collapse of
the building against United Construction, Inc.
and its President and General Manager Juan J.
Carlos as defendants. Plaintiff alleges that the
collapse of the building was accused by defects
in the construction, the failure of the
contractors to follow plans and specifications
and violations by the defendants of the terms
of the contract.
Defendants in turn filed a third-party complaint
against the architects who prepared the plans
and specifications, alleging in essence that the
collapse of the building was due to the defects
in the said plans and specifications. Roman
Ozaeta, the then president of the plaintiff Bar
Association was included as a third-party
defendant for damages for having included
Juan J. Carlos, President of the United
Construction Co., Inc. as party defendant.
On March 3, 1969, the plaintiff and third-party
defendants Juan F. Nakpil & Sons and Juan F.
Nakpil presented a written stipulation which
reads:
1. That in relation to defendants' answer with
counterclaims and third- party complaints and
the third-party defendants Nakpil & Sons'
answer thereto, the plaintiff need not amend
its complaint by including the said Juan F.
Nakpil & Sons and Juan F. Nakpil personally as
parties defendant.
2. That in the event (unexpected by the
undersigned) that the Court should find after

the trial that the above-named defendants Juan

J. Carlos and United Construction Co., Inc. are
free from any blame and liability for the
collapse of the PBA Building, and should further
find that the collapse of said building was due
to defects and/or inadequacy of the plans,
designs, and specifications p by the third-party
defendants, or in the event that the Court may
find Juan F. Nakpil and Sons and/or Juan F.
Nakpil contributorily negligent or in any way
jointly and solidarily liable with the defendants,
judgment may be rendered in whole or in part.
as the case may be, against Juan F. Nakpil &
Sons and/or Juan F. Nakpil in favor of the
plaintiff to all intents and purposes as if
plaintiff's complaint has been duly amended by
including the said Juan F. Nakpil & Sons and
Juan F. Nakpil as parties defendant and by
alleging causes of action against them
including, among others, the defects or
inadequacy of the plans, designs, and
specifications prepared by them and/or failure
in the performance of their contract with
plaintiff.
3. Both parties hereby jointly petition this
Honorable Court to approve this stipulation.
(Record on Appeal, pp. 274-275; Rollo, L47851,p.169).
Upon the issues being joined, a pre-trial was
conducted on March 7, 1969, during which
among others, the parties agreed to refer the
technical issues involved in the case to a
Commissioner. Mr. Andres O. Hizon, who was
ultimately appointed by the trial court,
assumed his office as Commissioner, charged
with the duty to try the following issues:
1. Whether the damage sustained by the PBA
building during the August 2, 1968 earthquake
had been caused, directly or indirectly, by:

(a) The inadequacies or defects in the plans

and specifications prepared by third-party
defendants;
(b) The deviations, if any, made by the
defendants from said plans and specifications
and how said deviations contributed to the
damage sustained;
(c) The alleged failure of defendants to observe
the requisite quality of materials and
workmanship in the construction of the
building;
(d) The alleged failure to exercise the requisite
degree of supervision expected of the
architect, the contractor and/or the owner of
the building;
(e) An act of God or a fortuitous event; and
(f) Any other cause not herein above specified.
2. If the cause of the damage suffered by the
building arose from a combination of the
above-enumerated factors, the degree or
proportion in which each individual factor
contributed to the damage sustained;
3. Whether the building is now a total loss and
should be completely demolished or whether it
may still be repaired and restored to a
tenantable condition. In the latter case, the
determination of the cost of such restoration or
repair, and the value of any remaining
construction, such as the foundation, which
may still be utilized or availed of (Record on
Appeal, pp. 275-276; Rollo, L-47851, p. 169).
Thus, the issues of this case were divided into
technical issues and non-technical issues. As
aforestated the technical issues were referred

to the Commissioner. The non-technical issues

were tried by the Court.

contractual basis for such conclusion. (Record

on Appeal, pp. 309-328; Ibid).

Meanwhile, plaintiff moved twice for the

demolition of the building on the ground that it
may topple down in case of a strong
earthquake. The motions were opposed by the
defendants and the matter was referred to the
Commissioner. Finally, on April 30, 1979 the
building was authorized to be demolished at
the expense of the plaintiff, but not another
earthquake of high intensity on April 7, 1970
followed by other strong earthquakes on April
9, and 12, 1970, caused further damage to the
property. The actual demolition was undertaken
by the buyer of the damaged building. (Record
on Appeal, pp. 278-280; Ibid.)

Thus, on September 21, 1971, the lower court

rendered the assailed decision which was
modified by the Intermediate Appellate Court
on November 28, 1977.

After
the
protracted
hearings,
the
Commissioner eventually submitted his report
on September 25, 1970 with the findings that
while the damage sustained by the PBA
building was caused directly by the August 2,
1968 earthquake whose magnitude was
estimated at 7.3 they were also caused by the
defects in the plans and specifications
prepared by the third-party defendants'
architects, deviations from said plans and
specifications by the defendant contractors and
failure of the latter to observe the requisite
workmanship in the construction of the building
and of the contractors, architects and even the
owners to exercise the requisite degree of
supervision in the construction of subject
building.
All the parties registered their objections to
aforesaid findings which in turn were answered
by the Commissioner.
The trial court agreed with the findings of the
Commissioner except as to the holding that the
owner is charged with full nine supervision of
the construction. The Court sees no legal or

All the parties herein appealed from the

decision of the Intermediate Appellate Court.
Hence, these petitions.
On May 11, 1978, the United Architects of the
Philippines, the Association of Civil Engineers,
and the Philippine Institute of Architects filed
with the Court a motion to intervene as amicus
curiae. They proposed to present a position
paper on the liability of architects when a
building collapses and to submit likewise a
critical analysis with computations on the
divergent views on the design and plans as
submitted by the experts procured by the
parties. The motion having been granted,
the amicus curiaewere granted a period of 60
days within which to submit their position.
After the parties had all filed their comments,
We gave due course to the petitions in Our
Resolution of July 21, 1978.
The
position
papers
of
the amicus
curiae (submitted on November 24, 1978) were
duly noted.
The amicus curiae gave the opinion that the
plans and specifications of the Nakpils were not
defective. But the Commissioner, when asked
by Us to comment, reiterated his conclusion
that the defects in the plans and specifications
indeed existed.
Using the same authorities availed of by
the amicus curiae such as the Manila Code

(Ord. No. 4131) and the 1966 Asep Code, the

Commissioner added that even if it can be
proved
that
the
defects
in
theconstruction alone (and not in the plans and
design) caused the damage to the building, still
the deficiency in the original design and jack of
specific provisions against torsion in the
original plans and the overload on the ground
floor columns (found by an the experts
including the original designer) certainly
contributed to the damage which occurred.
(Ibid, p. 174).
In their respective briefs petitioners, among
others, raised the following assignments of
errors: Philippine Bar Association claimed that
the measure of damages should not be limited
to P1,100,000.00 as estimated cost of repairs
or to the period of six (6) months for loss of
rentals while United Construction Co., Inc. and
the Nakpils claimed that it was an act of God
that caused the failure of the building which
should exempt them from responsibility and
not
the
defective
construction,
poor
workmanship, deviations from plans and
specifications and other imperfections in the
case of United Construction Co., Inc. or the
deficiencies in the design, plans and
specifications prepared by petitioners in the
case of the Nakpils. Both UCCI and the Nakpils
object to the payment of the additional amount
of P200,000.00 imposed by the Court of
Appeals. UCCI also claimed that it should be
reimbursed the expenses of shoring the
building in the amount of P13,661.28 while the
Nakpils opposed the payment of damages
jointly and solidarity with UCCI.
The pivotal issue in this case is whether or not
an act of God-an unusually strong earthquakewhich caused the failure of the building,
exempts from liability, parties who are
otherwise liable because of their negligence.

The applicable law governing the rights and

liabilities of the parties herein is Article 1723 of
the New Civil Code, which provides:

There is no dispute that the earthquake of

August 2, 1968 is a fortuitous event or an act
of God.

Art. 1723. The engineer or architect who drew

up the plans and specifications for a building is
liable for damages if within fifteen years from
the completion of the structure the same
should collapse by reason of a defect in those
plans and specifications, or due to the defects
in the ground. The contractor is likewise
responsible for the damage if the edifice fags
within the same period on account of defects in
the construction or the use of materials of
inferior quality furnished by him, or due to any
violation of the terms of the contract. If the
engineer
or
architect
supervises
the
construction, he shall be solidarily liable with
the contractor.

To exempt the obligor from liability under

Article 1174 of the Civil Code, for a breach of
an obligation due to an "act of God," the
following must concur: (a) the cause of the
breach of the obligation must be independent
of the will of the debtor; (b) the event must be
either unforseeable or unavoidable; (c) the
event must be such as to render it impossible
for the debtor to fulfill his obligation in a
normal manner; and (d) the debtor must be
free from any participation in, or aggravation of
the injury to the creditor. (Vasquez v. Court of
Appeals,
138
SCRA
553;
Estrada
v.
Consolacion, 71 SCRA 423; Austria v. Court of
Appeals, 39 SCRA 527; Republic of the Phil. v.
Luzon Stevedoring Corp., 21 SCRA 279; Lasam
v. Smith, 45 Phil. 657).

Acceptance of the building, after completion,

does not imply waiver of any of the causes of
action by reason of any defect mentioned in
the preceding paragraph.
The action must be brought within ten years
following the collapse of the building.
On the other hand, the general rule is that no
person shall be responsible for events which
could not be foreseen or which though
foreseen, were inevitable (Article 1174, New
Civil Code).
An act of God has been defined as an accident,
due directly and exclusively to natural causes
without human intervention, which by no
amount of foresight, pains or care, reasonably
to have been expected, could have been
prevented. (1 Corpus Juris 1174).

Thus, if upon the happening of a fortuitous

event or an act of God, there concurs a
corresponding fraud, negligence, delay or
violation or contravention in any manner of the
tenor of the obligation as provided for in Article
1170 of the Civil Code, which results in loss or
damage, the obligor cannot escape liability.
The principle embodied in the act of God
doctrine strictly requires that the act must be
one occasioned exclusively by the violence of
nature and all human agencies are to be
excluded from creating or entering into the
cause of the mischief. When the effect, the
cause of which is to be considered, is found to
be in part the result of the participation of man,
whether it be from active intervention or
neglect, or failure to act, the whole occurrence
is thereby humanized, as it were, and removed
from the rules applicable to the acts of God. (1
Corpus Juris, pp. 1174-1175).

Thus it has been held that when the negligence

of a person concurs with an act of God in
producing a loss, such person is not exempt
from liability by showing that the immediate
cause of the damage was the act of God. To be
exempt from liability for loss because of an act
of God, he must be free from any previous
negligence or misconduct by which that loss or
damage may have been occasioned. (Fish &
Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker
v. Milan, 49 O.G. 4379; Limpangco & Sons v.
Yangco Steamship Co., 34 Phil. 594, 604;
Lasam v. Smith, 45 Phil. 657).
The negligence of the defendant and the thirdparty defendants petitioners was established
beyond dispute both in the lower court and in
the Intermediate Appellate Court. Defendant
United Construction Co., Inc. was found to have
made substantial deviations from the plans and
specifications. and to have failed to observe
the requisite workmanship in the construction
as well as to exercise the requisite degree of
supervision; while the third-party defendants
were found to have inadequacies or defects in
the plans and specifications prepared by them.
As correctly assessed by both courts, the
defects in the construction and in the plans and
specifications were the proximate causes that
rendered the PBA building unable to withstand
the earthquake of August 2, 1968. For this
reason
the
defendant
and
third-party
defendants cannot claim exemption from
liability. (Decision, Court of Appeals, pp. 30-31).
It is well settled that the findings of facts of the
Court of Appeals are conclusive on the parties
and on this court (cases cited in Tolentino vs.
de
Jesus,
56
SCRA
67;
Cesar
vs.
Sandiganbayan, January 17, 1985, 134 SCRA
105, 121), unless (1) the conclusion is a finding
grounded entirely on speculation, surmise and
conjectures; (2) the inference made is
manifestly mistaken; (3) there is grave abuse

of discretion; (4) the judgment is based on

misapprehension of facts; (5) the findings of
fact are conflicting , (6) the Court of Appeals
went beyond the issues of the case and its
findings are contrary to the admissions of both
appellant and appellees (Ramos vs. Pepsi-Cola
Bottling Co., February 8, 1967, 19 SCRA 289,
291-292; Roque vs. Buan, Oct. 31, 1967, 21
SCRA 648, 651); (7) the findings of facts of the
Court of Appeals are contrary to those of the
trial court; (8) said findings of facts are
conclusions without citation of specific
evidence on which they are based; (9) the facts
set forth in the petition as well as in the
petitioner's main and reply briefs are not
disputed by the respondents (Garcia vs. CA,
June 30, 1970, 33 SCRA 622; Alsua-Bett vs.
Court of Appeals, July 30, 1979, 92 SCRA 322,
366); (10) the finding of fact of the Court of
Appeals is premised on the supposed absence
of evidence and is contradicted by evidence on
record (Salazar vs. Gutierrez, May 29, 1970, 33
SCRA 243, 247; Cited in G.R. No. 66497-98,
Sacay v. Sandiganbayan, July 10, 1986).
It is evident that the case at bar does not fall
under any of the exceptions above-mentioned.
On the contrary, the records show that the
lower court spared no effort in arriving at the
correct appreciation of facts by the referral of
technical issues to a Commissioner chosen by
the parties whose findings and conclusions
remained convincingly unrebutted by the
intervenors/amicus curiae who were allowed to
intervene in the Supreme Court.
In any event, the relevant and logical
observations of the trial court as affirmed by
the Court of Appeals that "while it is not
possible to state with certainty that the
building would not have collapsed were those
defects not present, the fact remains that
several buildings in the same area withstood
the earthquake to which the building of the

plaintiff was similarly subjected," cannot be

ignored.
The next issue to be resolved is the amount of
damages to be awarded to the PBA for the
partial collapse (and eventual complete
collapse) of its building.
The Court of Appeals affirmed the finding of the
trial court based on the report of the
Commissioner that the total amount required
to repair the PBA building and to restore it to
tenantable
condition
was
P900,000.00
inasmuch as it was not initially a total loss.
However, while the trial court awarded the PBA
said amount as damages, plus unrealized
rental income for one-half year, the Court of
Appeals modified the amount by awarding in
favor of PBA an additional sum of P200,000.00
representing the damage suffered by the PBA
building as a result of another earthquake that
occurred on April 7, 1970 (L-47896, Vol. I, p.
92).
The PBA in its brief insists that the proper
award should be P1,830,000.00 representing
the total value of the building (L-47896, PBA's
No. 1 Assignment of Error, p. 19), while both
the NAKPILS and UNITED question the
additional award of P200,000.00 in favor of the
PBA (L- 47851, NAKPIL's Brief as Petitioner, p.
6, UNITED's Brief as Petitioner, p. 25). The PBA
further urges that the unrealized rental income
awarded to it should not be limited to a period
of one-half year but should be computed on a
continuing basis at the rate of P178,671.76 a
year until the judgment for the principal
amount shall have been satisfied L- 47896,
PBA's No. 11 Assignment of Errors, p. 19).
The collapse of the PBA building as a result of
the August 2, 1968 earthquake was only partial
and it is undisputed that the building could
then still be repaired and restored to its

tenantable condition. The PBA, however, in

view of its lack of needed funding, was unable,
thru no fault of its own, to have the building
repaired. UNITED, on the other hand, spent
P13,661.28 to shore up the building after the
August 2, 1968 earthquake (L-47896, CA
Decision, p. 46). Because of the earthquake on
April 7, 1970, the trial court after the needed
consultations, authorized the total demolition
of the building (L-47896, Vol. 1, pp. 53-54).
There should be no question that the NAKPILS
and UNITED are liable for the damage resulting
from the partial and eventual collapse of the
PBA building as a result of the earthquakes.
We quote with approval the following from the
erudite decision penned by Justice Hugo E.
Gutierrez (now an Associate Justice of the
Supreme Court) while still an Associate Justice
of the Court of Appeals:
There is no question that an earthquake and
other forces of nature such as cyclones,
drought, floods, lightning, and perils of the sea
are acts of God. It does not necessarily follow,
however, that specific losses and suffering
resulting from the occurrence of these natural
force are also acts of God. We are not
convinced on the basis of the evidence on
record that from the thousands of structures in
Manila, God singled out the blameless PBA
building in Intramuros and around six or seven
other buildings in various parts of the city for
collapse or severe damage and that God alone
was responsible for the damages and losses
thus suffered.
The record is replete with evidence of defects
and deficiencies in the designs and plans,
defective construction, poor workmanship,
deviation from plans and specifications and
other imperfections. These deficiencies are

attributable to negligent men and not to a

perfect God.
The act-of-God arguments of the defendantsappellants and third party defendantsappellants presented in their briefs are
premised
on
legal
generalizations
or
speculations and on theological fatalism both
of which ignore the plain facts. The lengthy
discussion of United on ordinary earthquakes
and unusually strong earthquakes and on
ordinary fortuitous events and extraordinary
fortuitous events leads to its argument that the
August 2, 1968 earthquake was of such an
overwhelming and destructive character that
by its own force and independent of the
particular negligence alleged, the injury would
have been produced. If we follow this line of
speculative reasoning, we will be forced to
conclude that under such a situation scores of
buildings in the vicinity and in other parts of
Manila would have toppled down. Following the
same line of reasoning, Nakpil and Sons alleges
that the designs were adequate in accordance
with pre-August 2, 1968 knowledge and appear
inadequate only in the light of engineering
information acquired after the earthquake. If
this were so, hundreds of ancient buildings
which survived the earthquake better than the
two-year old PBA building must have been
designed and constructed by architects and
contractors whose knowledge and foresight
were unexplainably auspicious and prophetic.
Fortunately, the facts on record allow a more
down to earth explanation of the collapse. The
failure of the PBA building, as a unique and
distinct construction with no reference or
comparison to other buildings, to weather the
severe earthquake forces was traced to design
deficiencies and defective construction, factors
which are neither mysterious nor esoteric. The
theological allusion of appellant United that
God acts in mysterious ways His wonders to
perform impresses us to be inappropriate. The

evidence reveals defects and deficiencies in

design and construction. There is no mystery
about these acts of negligence. The collapse of
the PBA building was no wonder performed by
God. It was a result of the imperfections in the
work of the architects and the people in the
construction company. More relevant to our
mind is the lesson from the parable of the wise
man in the Sermon on the Mount "which built
his house upon a rock; and the rain descended
and the floods came and the winds blew and
beat upon that house; and it fen not; for it was
founded upon a rock" and of the "foolish upon
the sand. And the rain descended and man
which built his house the floods came, and the
winds blew, and beat upon that house; and it
fell and great was the fall of it. (St. Matthew 7:
24-27)." The requirement that a building should
withstand rains, floods, winds, earthquakes,
and natural forces is precisely the reason why
we have professional experts like architects,
and engineers. Designs and constructions vary
under varying circumstances and conditions
but the requirement to design and build well
does not change.
The findings of the lower Court on the cause of
the collapse are more rational and accurate.
Instead of laying the blame solely on the
motions and forces generated by the
earthquake, it also examined the ability of the
PBA building, as designed and constructed, to
withstand and successfully weather those
forces.
The evidence sufficiently supports a conclusion
that the negligence and fault of both United
and Nakpil and Sons, not a mysterious act of
an inscrutable God, were responsible for the
damages. The Report of the Commissioner,
Plaintiff's Objections to the Report, Third Party
Defendants'
Objections
to
the
Report,
Defendants'
Objections
to
the
Report,
Commissioner's
Answer
to
the
various

Objections,
Plaintiffs'
Reply
to
the
Commissioner's Answer, Defendants' Reply to
the Commissioner's Answer, Counter-Reply to
Defendants' Reply, and Third-Party Defendants'
Reply to the Commissioner's Report not to
mention the exhibits and the testimonies show
that the main arguments raised on appeal were
already raised during the trial and fully
considered by the lower Court. A reiteration of
these same arguments on appeal fails to
convince us that we should reverse or disturb
the lower Court's factual findings and its
conclusions drawn from the facts, among them:
The Commissioner also found merit in the
allegations of the defendants as to the physical
evidence before and after the earthquake
showing the inadequacy of design, to wit:
Physical evidence before the earthquake
providing (sic) inadequacy of design;
1. inadequate design was the cause of the
failure of the building.
2. Sun-baffles on the two sides and in front of
the building;
a. Increase the inertia forces that move the
building laterally toward the Manila Fire
Department.
b. Create another stiffness imbalance.
3. The embedded 4" diameter cast iron down
spout on all exterior columns reduces the
cross-sectional area of each of the columns and
the strength thereof.
4. Two front corners, A7 and D7 columns were
very much less reinforced.

Physical Evidence After the

Proving Inadequacy of design;

Earthquake,

1. Column A7 suffered the severest fracture

and maximum sagging. Also D7.
2. There are more damages in the front part of
the building than towards the rear, not only in
columns but also in slabs.
3. Building leaned and sagged more on the
front part of the building.
4. Floors showed maximum sagging on the
sides and toward the front corner parts of the
building.
5. There was a lateral displacement of the
building of about 8", Maximum sagging occurs
at the column A7 where the floor is lower by 80
cm. than the highest slab level.
6. Slab at the corner column D7 sagged by 38
cm.
The Commissioner concluded that there were
deficiencies or defects in the design, plans and
specifications of the PBA building which
involved appreciable risks with respect to the
accidental forces which may result from
earthquake shocks. He conceded, however,
that the fact that those deficiencies or defects
may have arisen from an obsolete or not too
conservative code or even a code that does not
require a design for earthquake forces
mitigates in a large measure the responsibility
or liability of the architect and engineer
designer.
The Third-party defendants, who are the most
concerned
with
this
portion
of
the
Commissioner's report, voiced opposition to
the same on the grounds that (a) the finding is

based on a basic erroneous conception as to

the design concept of the building, to wit, that
the design is essentially that of a heavy
rectangular box on stilts with shear wan at one
end; (b) the finding that there were defects and
a deficiency in the design of the building would
at best be based on an approximation and,
therefore, rightly belonged to the realm of
speculation, rather than of certainty and could
very possibly be outright error; (c) the
Commissioner has failed to back up or support
his finding with extensive, complex and highly
specialized computations and analyzes which
he himself emphasizes are necessary in the
determination of such a highly technical
question; and (d) the Commissioner has
analyzed the design of the PBA building not in
the light of existing and available earthquake
engineering knowledge at the time of the
preparation of the design, but in the light of
recent and current standards.
The
Commissioner
answered
the
said
objections alleging that third-party defendants'
objections were based on estimates or exhibits
not presented during the hearing that the
resort to engineering references posterior to
the date of the preparation of the plans was
induced
by
the
third-party
defendants
themselves who submitted computations of the
third-party defendants are erroneous.
The issue presently considered is admittedly a
technical one of the highest degree. It involves
questions not within the ordinary competence
of the bench and the bar to resolve by
themselves. Counsel for the third-party
defendants
has
aptly
remarked
that
"engineering, although dealing in mathematics,
is not an exact science and that the present
knowledge as to the nature of earthquakes and
the behaviour of forces generated by them still
leaves much to be desired; so much so "that
the experts of the different parties, who are all

engineers, cannot agree on what equation to

use, as to what earthquake co-efficients are, on
the codes to be used and even as to the type
of structure that the PBA building (is) was (p.
29, Memo, of third- party defendants before the
Commissioner).
The difficulty expected by the Court if tills
technical matter were to be tried and inquired
into by the Court itself, coupled with the
intrinsic nature of the questions involved
therein, constituted the reason for the
reference of the said issues to a Commissioner
whose qualifications and experience have
eminently qualified him for the task, and whose
competence had not been questioned by the
parties until he submitted his report. Within the
pardonable limit of the Court's ability to
comprehend
the
meaning
of
the
Commissioner's report on this issue, and the
objections voiced to the same, the Court sees
no compelling reasons to disturb the findings of
the Commissioner that there were defects and
deficiencies in the design, plans and
specifications
prepared
by
third-party
defendants, and that said defects and
deficiencies involved appreciable risks with
respect to the accidental forces which may
result from earthquake shocks.
(2) (a) The deviations, if any, made by the
defendants from the plans and specifications,
and how said deviations contributed to the
damage sustained by the building.
(b) The alleged failure of defendants to observe
the requisite quality of materials and
workmanship in the construction of the
building.
These two issues, being interrelated with each
other, will be discussed together.

The findings of the Commissioner on these

issues were as follows:

(11) Big cavity in core of Column 2A-4, second

floor,

(10) Column A4 Spirals cut off and welded to

two separate clustered vertical bars,

We now turn to the construction of the PBA

Building and the alleged deficiencies or defects
in the construction and violations or deviations
from the plans and specifications. All these
may be summarized as follows:

(12) Columns buckled at different planes.

Columns buckled worst where there are no
spirals or where spirals are cut. Columns
suffered worst displacement where the
eccentricity of the columnar reinforcement
assembly is more acute.

(11) Column A4 (second floor Column is

completely hollow to a height of 30"

b. Summary of alleged defects as reported by

Engr. Antonio Avecilla.

(13) Column A6 No spirals up to a height of

30' above the ground floor level,

Columns are first (or ground) floor, unless

otherwise stated.

(14) Column A7 Lack of lateralties or spirals,

a. Summary of alleged defects as reported by

Engineer Mario M. Bundalian.
(1) Wrongful and
reinforcing bars.

defective

placing

(12) Column A5 Spirals were cut from the

floor level to the bottom of the spandrel beam
to a height of 6 feet,

of

(2) Absence of effective and desirable

integration of the 3 bars in the cluster.
(3) Oversize coarse aggregates: 1-1/4 to 2"
were used. Specification requires no larger
than 1 inch.
(4) Reinforcement assembly is not concentric
with the column, eccentricity being 3" off when
on one face the main bars are only 1 1/2' from
the surface.

(1) Column D4 Spacing of spiral is changed

from 2" to 5" on centers,
(2) Column D5 No spiral up to a height of
22" from the ground floor,

Ground floor columns.

(1) Column A4 Spirals are cut,

(3) Column D6 Spacing of spiral over 4 l/2,

(2) Column A5 Spirals are cut,

(4) Column D7 Lack of lateral ties,

(3) Column A6 At lower 18" spirals are

absent,

(6) Contraband construction joints,

(5) Column C7 Absence of spiral to a height

of 20" from the ground level, Spirals are at 2"
from the exterior column face and 6" from the
inner column face,

(7) Absence, or omission, or over spacing of

spiral hoops,

(6) Column B6 Lack of spiral on 2 feet below

the floor beams,

(8) Deliberate severance of spirals into semicircles in noted on Col. A-5, ground floor,

(7) Column B5 Lack of spirals at a distance

of 26' below the beam,

(9) Defective construction joints in Columns A3, C-7, D-7 and D-4, ground floor,

(8) Column B7 Spirals not tied to vertical

reinforcing bars, Spirals are uneven 2" to 4",

(10) Undergraduate concrete is evident,

(9) Column A3 Lack of lateral ties,

(5) Prevalence of honeycombs,

c. Summary of alleged defects as reported by

the experts of the Third-Party defendants.

(4) Column A7 Ties are too far apart,

(5) Column B5 At upper fourth of column
spirals are either absent or improperly spliced,
(6) Column B6 At upper 2 feet spirals are
absent,
(7) Column B7 At upper fourth of column
spirals missing or improperly spliced.
(8) Column C7 Spirals are absent at lowest
18"

(9) Column D5 At lowest 2 feet spirals are

absent,
(10) Column D6 Spirals are too far apart and
apparently improperly spliced,
(11) Column D7 Lateral ties are too far
apart, spaced 16" on centers.
There is merit in many of these allegations. The
explanations given by the engineering experts
for the defendants are either contrary to
general principles of engineering design for
reinforced concrete or not applicable to the
requirements for ductility and strength of
reinforced concrete in earthquake-resistant
design and construction.
We shall first classify and consider defects
which may have appreciable bearing or relation
to' the earthquake-resistant property of the
building.
As heretofore mentioned, details which insure
ductility at or near the connections between
columns and girders are desirable in
earthquake resistant design and construction.
The omission of spirals and ties or hoops at the
bottom and/or tops of columns contributed
greatly to the loss of earthquake-resistant
strength. The plans and specifications required
that these spirals and ties be carried from the
floor level to the bottom reinforcement of the
deeper beam (p. 1, Specifications, p. 970,
Reference 11). There were several clear
evidences where this was not done especially
in some of the ground floor columns which
failed.
There were also unmistakable evidences that
the spacings of the spirals and ties in the
columns were in many cases greater than
those called for in the plans and specifications

resulting again in loss of earthquake-resistant

strength. The assertion of the engineering
experts for the defendants that the improper
spacings and the cutting of the spirals did not
result in loss of strength in the column cannot
be maintained and is certainly contrary to the
general principles of column design and
construction. And even granting that there be
no loss in strength at the yield point (an
assumption which is very doubtful) the cutting
or improper spacings of spirals will certainly
result in the loss of the plastic range or
ductility in the column and it is precisely this
plastic range or ductility which is desirable and
needed for earthquake-resistant strength.
There is no excuse for the cavity or hollow
portion in the column A4, second floor, and
although this column did not fail, this is
certainly an evidence on the part of the
contractor of poor construction.
The effect of eccentricities in the columns
which were measured at about 2 1/2 inches
maximum may be approximated in relation to
column loads and column and beam moments.
The main effect of eccentricity is to change the
beam or girder span. The effect on the
measured eccentricity of 2 inches, therefore, is
to increase or diminish the column load by a
maximum of about 1% and to increase or
diminish the column or beam movements by
about a maximum of 2%. While these can
certainly be absorbed within the factor of
safety, they nevertheless diminish said factor
of safety.
The cutting of the spirals in column A5, ground
floor is the subject of great contention between
the parties and deserves special consideration.
The proper placing of the main reinforcements
and spirals in column A5, ground floor, is the
responsibility of the general contractor which is

the UCCI. The burden of proof, therefore, that

this cutting was done by others is upon the
defendants. Other than a strong allegation and
assertion that it is the plumber or his men who
may have done the cutting (and this was flatly
denied by the plumber) no conclusive proof
was presented. The engineering experts for the
defendants asserted that they could have no
motivation for cutting the bar because they
can simply replace the spirals by wrapping
around a new set of spirals. This is not quite
correct. There is evidence to show that the
pouring of concrete for columns was
sometimes done through the beam and girder
reinforcements which were already in place as
in the case of column A4 second floor. If the
reinforcement for the girder and column is to
subsequently wrap around the spirals, this
would not do for the elasticity of steel would
prevent the making of tight column spirals and
loose or improper spirals would result. The
proper way is to produce correct spirals down
from the top of the main column bars, a
procedure which can not be done if either the
beam or girder reinforcement is already in
place. The engineering experts for the
defendants strongly assert and apparently
believe that the cutting of the spirals did not
materially diminish the strength of the column.
This belief together with the difficulty of
slipping the spirals on the top of the column
once the beam reinforcement is in place may
be a sufficient motivation for the cutting of the
spirals themselves. The defendants, therefore,
should
be
held
responsible
for
the
consequences arising from the loss of strength
or ductility in column A5 which may have
contributed to the damages sustained by the
building.
The lack of proper length of splicing of spirals
was also proven in the visible spirals of the
columns where spalling of the concrete cover
had taken place. This lack of proper splicing

contributed in a small measure to the loss of

strength.
The effects of all the other proven and visible
defects although nor can certainly be
accumulated so that they can contribute to an
appreciable
loss
in
earthquake-resistant
strength. The engineering experts for the
defendants submitted an estimate on some of
these defects in the amount of a few percent. If
accumulated, therefore, including the effect of
eccentricity in the column the loss in strength
due to these minor defects may run to as much
as ten percent.
To recapitulate: the omission or lack of spirals
and ties at the bottom and/or at the top of
some of the ground floor columns contributed
greatly to the collapse of the PBA building since
it is at these points where the greater part of
the failure occurred. The liability for the cutting
of the spirals in column A5, ground floor, in the
considered opinion of the Commissioner rests
on the shoulders of the defendants and the loss
of strength in this column contributed to the
damage which occurred.
It is reasonable to conclude, therefore, that the
proven defects, deficiencies and violations of
the plans and specifications of the PBA building
contributed to the damages which resulted
during the earthquake of August 2, 1968 and
the vice of these defects and deficiencies is
that they not only increase but also aggravate
the weakness mentioned in the design of the
structure. In other words, these defects and
deficiencies not only tend to add but also to
multiply the effects of the shortcomings in the
design of the building. We may say, therefore,
that the defects and deficiencies in the
construction contributed greatly to the damage
which occurred.

Since the execution and supervision of the

construction work in the hands of the
contractor is direct and positive, the presence
of existence of all the major defects and
deficiencies noted and proven manifests an
element of negligence which may amount to
imprudence in the construction work. (pp. 4249, Commissioners Report).
As the parties most directly concerned with this
portion of the Commissioner's report, the
defendants voiced their objections to the same
on the grounds that the Commissioner should
have specified the defects found by him to be
"meritorious"; that the Commissioner failed to
indicate the number of cases where the spirals
and ties were not carried from the floor level to
the bottom reinforcement of the deeper beam,
or where the spacing of the spirals and ties in
the columns were greater than that called for
in the specifications; that the hollow in column
A4, second floor, the eccentricities in the
columns, the lack of proper length of splicing of
spirals, and the cut in the spirals in column A5,
ground floor, did not aggravate or contribute to
the damage suffered by the building; that the
defects in the construction were within the
tolerable margin of safety; and that the cutting
of the spirals in column A5, ground floor, was
done by the plumber or his men, and not by
the defendants.
Answering
the
said
objections,
the
Commissioner stated that, since many of the
defects were minor only the totality of the
defects was considered. As regards the
objection as to failure to state the number of
cases where the spirals and ties were not
carried from the floor level to the bottom
reinforcement, the Commissioner specified
groundfloor columns B-6 and C-5 the first one
without spirals for 03 inches at the top, and in
the latter, there were no spirals for 10 inches at
the bottom. The Commissioner likewise

specified the first storey columns where the

spacings were greater than that called for in
the specifications to be columns B-5, B-6, C-7,
C-6, C-5, D-5 and B-7. The objection to the
failure of the Commissioner to specify the
number of columns where there was lack of
proper length of splicing of spirals, the
Commissioner mentioned groundfloor columns
B-6 and B-5 where all the splices were less
than 1-1/2 turns and were not welded, resulting
in some loss of strength which could be critical
near the ends of the columns. He answered the
supposition of the defendants that the spirals
and the ties must have been looted, by calling
attention to the fact that the missing spirals
and ties were only in two out of the 25
columns, which rendered said supposition to be
improbable.
The Commissioner conceded that the hollow in
column A-4, second floor, did not aggravate or
contribute to the damage, but averred that it is
"evidence of poor construction." On the claim
that the eccentricity could be absorbed within
the factor of safety, the Commissioner
answered that, while the same may be true, it
also contributed to or aggravated the damage
suffered by the building.
The objection regarding the cutting of the
spirals in Column A-5, groundfloor, was
answered by the Commissioner by reiterating
the observation in his report that irrespective
of who did the cutting of the spirals, the
defendants should be held liable for the same
as the general contractor of the building. The
Commissioner further stated that the loss of
strength of the cut spirals and inelastic
deflections of the supposed lattice work
defeated the purpose of the spiral containment
in the column and resulted in the loss of
strength, as evidenced by the actual failure of
this column.

Again, the Court concurs in the findings of the

Commissioner on these issues and fails to find
any sufficient cause to disregard or modify the
same. As found by the Commissioner, the
"deviations made by the defendants from the
plans and specifications caused indirectly the
damage sustained and that those deviations
not only added but also aggravated the
damage caused by the defects in the plans and
specifications
prepared
by
third-party
defendants. (Rollo, Vol. I, pp. 128-142)
The afore-mentioned facts clearly indicate the
wanton negligence of both the defendant and
the third-party defendants in effecting the
plans, designs, specifications, and construction
of the PBA building and We hold such
negligence as equivalent to bad faith in the
performance of their respective tasks.
Relative thereto, the ruling of the Supreme
Court in Tucker v. Milan (49 O.G. 4379, 4380)
which may be in point in this case reads:
One who negligently creates a dangerous
condition cannot escape liability for the natural
and probable consequences thereof, although
the act of a third person, or an act of God for
which he is not responsible, intervenes to
precipitate the loss.
As already discussed, the destruction was not
purely an act of God. Truth to tell hundreds of
ancient buildings in the vicinity were hardly
affected by the earthquake. Only one thing
spells out the fatal difference; gross negligence
and evident bad faith, without which the
damage would not have occurred.
WHEREFORE, the decision appealed from is
hereby MODIFIED and considering the special
and environmental circumstances of this case,
We deem it reasonable to render a decision
imposing, as We do hereby impose, upon the

defendant and the third-party defendants (with

the exception of Roman Ozaeta) a solidary (Art.
1723, Civil Code, Supra, p. 10) indemnity in
favor of the Philippine Bar Association of FIVE
MILLION (P5,000,000.00) Pesos to cover all
damages (with the exception of attorney's
fees) occasioned by the loss of the building
(including interest charges and lost rentals)
and an additional ONE HUNDRED THOUSAND
(P100,000.00) Pesos as and for attorney's fees,
the total sum being payable upon the finality of
this decision. Upon failure to pay on such
finality, twelve (12%) per cent interest per
annum shall be imposed upon afore-mentioned
amounts from finality until paid. Solidary costs
against
the
defendant
and
third-party
defendants (except Roman Ozaeta).
SO ORDERED.

G.R. No. 165413

2012

February 22,

PHILAM INSURANCE COMPANY, INC. and

AMERICAN
HOME
INSURANCE
CO., Petitioners,
vs.
COURT OF APPEALS, and D.M. CONSUNJI
INC., Respondents.
DECISION
SERENO, J.:
In this Petition for Review on Certiorari under
Rule
45,
petitioners
Philam
Insurance
Company, Incorporated (Philam) and American
Home Insurance Company (AHIC) seek the
reversal of the Decision of the Court of Appeals
(CA) in CA-G.R. CV No. 60098 dated 28 June
2004 and its Resolution dated 24 September
2004. The CA Decision reversed and set aside
that of the Regional Trial Court (RTC) of Makati
City in Civil Case No. 95-540 dated 28 April
1998.
The CA ruled against petitioners demand for
the recovery of the value of the insureds
generator
set
(genset)
against
private
respondent D.M. Consunji Incorporated (DMCI),
whose alleged negligence damaged the said
equipment.
The antecedent facts are as follows:
Four gensets from the United States of America
were ordered by Citibank, N.A. (Citibank).
Petitioner AHIC insured these gensets under
Certificate No. 60221 for USD 851,500 covering
various risks.1 The insurance policy provided
that the claim may be paid in the Philippines by
Philam Insurance Co., Inc, AHICs local settling
agent.2

Citibanks
broker-forwarder,
Melicia
International Services (MIS),3 transported the
gensets in separate container vans. It was
instructed by Citibank to deliver and haul one
genset to Makati City,4 where the latters office
was being constructed by the building
contractor, DMCI.
MIS was further instructed to place the 13-ton
genset5 at the top of Citibanks building. The
broker-forwarder declined, since it had no
power cranes.6 Thus, Citibank assigned the job
to private respondent DMCI, which accepted
the task.7
On 16 October 1993, DMCI lifted the genset
with a crane (Unic-K-2000) that had a hydraulic
telescopic boom and a loading capacity of 20
tons.8 During the lifting process, both the
cranes boom and the genset fell and got
damaged.9
The events leading to the fall, based mainly on
the signed statement10 of DMCIs crane
operator, Mr. Ariel Del Pilar, transpired as
follows:
The genset was lifted clear out of the open top
container by the crane. After clearing the
container van, the crane operator, Mr. Ariel del
Pilar, had to position the genset over the
vicinity of the storage area. To do this, the
boom of the crane carrying the generator set
had to be turned (swing) to face right and
stopped when it loomed over the storage area.
The genset was swinging as it came to a stop
following the right turn. The crane operator
waited for the genset to stop swinging for him
to perform the next maneuver. The boom had
to be raised three (3) degrees more from its
position at 75 degrees, up to 78 degrees. At 78
degrees the genset could be lowered straight
down to the delivery storage area.

The genset stopped swinging. The crane

operator proceeded to raise the boom to 78
degrees. While so doing, the crane operator
felt a sudden upward movement of the boom.
The genset began to swing in and out, towards
the crane operator, then outward and away.
The body of the crane lifted off the ground, the
boom fell from an approximate height of 9 feet,
first hitting a Meralco line, then falling to the
ground.11
After two days, DMCIs surveyor, Manila
Adjusters & Surveyors Co. (MASC) assessed the
condition
of
the
crane
and
the
genset.12 According to its Survey Certificate,
the genset was already deformed. 13
Citibank demanded from DMCI the full value of
the damaged genset, including the cost,
insurance and freight amounting to USD
212,850.14 Private respondent refused to pay,
asserting that the damage was caused by an
accident.15
Thereafter, Citibank filed an insurance claim
with Philam, AHICs local settling agent, for the
value of the genset. Philam paid the claim for
PhP 5,866,146.16
Claiming the right of subrogation, Philam
demanded the reimbursement of the gensets
value from DMCI, which denied liability.17 Thus,
on 19 April 1994, Philam filed a Complaint with
the RTC to recover the value of the insured
genset.18
At the trial court, petitioner Philam did not
invoke res ipsa loquitur. Rather, during the pretrial conference, the parties agreed on this sole
issue: "Whether or not the damage was the
fault of the defendant or within their area of
supervision at the time the cause of damage
occurred."19

The RTC ruled in favor of Philam and ordered as

follows:

operator and other employees assisting in

unloading the genset.

of others against unreasonably great risk of

harm.27

WHEREFORE
PREMISES
CONSIDERED,
judgment is hereby rendered in favor of
plaintiff as against defendant ordering the
latter to pay plaintiff as follows:

xxx

Philam blames the conduct of DMCIs crane

operator for the gensets fall. Essentially, it
points out the following errors in operating the
crane:

1. the amount of PhP 5,866,146.00 as

actual damages with interest at 6% per
annum from the date of filing of this
Complaint until the sum is fully paid.
2. the amount equivalent to 25% of the
sum recoverable as attorneys fees;
3. cost of suit.
SO ORDERED.

xxx

xxx

The falling of the genset to the ground was a

clear case of accident xxx. xxx [D]efendantappellant cannot be held responsible for the
event which could not be foreseen, or which
though foreseen, was inevitable.22
Accordingly, the dispositive portion reads:
WHEREFORE, there being merit in the appeal,
the assailed Decision dated April 28, 1998 of
the Regional Trial Court, Branch 61 of Makati
City in Civil Case no. 95-1450, is REVERSED
and SET ASIDE, and the complaint dismissed.

20

SO ORDERED.23
The trial court ruled that the loss or damage to
the genset was due to the negligent operation
of the crane:
This Court finds that the loss or damage
brought about by the falling of the genset was
caused by negligence in the operation of the
crane in lifting the genset to as high as 9 feet
causing the boom to fall [sic], hitting the
Meralco line to ground, sustaining heavy
damage, which negligence was attributable to
the crane operator.21
DMCI appealed to the CA, which reversed and
set aside the RTCs Decision. The appellate
court ruled that the falling of the genset was a
clear case of accident and, hence, DMCI could
not be held responsible.
In this case, plaintiffs-appellees failed to
discharge the burden of proving negligence on
the part of the defendant-appellants crane

Hence, the pertinent issue in this Petition is

whether
petitioners
have
sufficiently
established the negligence of DMCI for the
former to recover the value of the damaged
genset. While this Court is not a trier of facts,
and hesitates to review the factual findings of
the lower courts, in this occasion, it would do
so considering the conflicting legal conclusions
of the RTC and the CA.
For DMCI to be liable for damages, negligence
on its part must be established. 24 Additionally,
that finding must be the proximate cause of
the damage to the genset. 25 We agree with the
CA that Philam failed to establish DMCIs
negligence.
Negligence is the want of care required by the
circumstances.26 It is a conduct that involves an
unreasonably great risk of causing damage; or,
more fully, a conduct that falls below the
standard established by law for the protection

First, Del Pilar did not give any reason for his
act of raising the boom from 75 to 78 degrees
at the stage when the genset was already set
for lowering to the ground.28
Second, Del Pilars revving of the motor of the
boom "triggered the chain of events starting
with the jerk, then followed by the swinging of
the genset which was obviously violent as it
caused the body of the crane to tilt upward,
and ultimately, caused the boom with the
genset to fall."29
It would be a long stretch to construe these as
acts of negligence. Not all omissions can be
considered as negligent. The test of negligence
is as follows:
Could a prudent man, in the case under
consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty
of the actor to take precautions to guard
against that harm. Reasonable foresight of
harm, followed by ignoring of the suggestion
born of this prevision, is always necessary
before negligence can be held to exist.30
Applying the test, the circumstances would
show that the acts of the crane operator were
rational and justified.
Addressing Philams first submission, this Court
finds that the records are replete with
explanations for why the boom of the crane
had to be raised from 75 to 78 degrees.

Although the boom is already in the general

area of the gensets storage place, still, it had
to be raised three (3) degrees in order to put it
exactly in the proper designation. At 78
degrees, the genset could be lowered straight
down to the delivery/storage area.31 DMCIs
crane operation team determined accordingly
that there was a need to raise the boom in
order to put the genset in the exact location.
Indeed, the heavy equipment must be secured
in its proper place.
Proceeding to the more contentious claim,
Philam
emphasized
the
apparent
inconsistencies in Del Pilars narration. In his
signed statement, executed 15 days after the
incident, Del Pilar stated that when he raised
the boom from 75 to 78 degrees, he revved the
motor, upon which he felt the sudden upward
movement (jerk) of the boom followed by the
swinging of the genset.32
But in his affidavit, executed already during the
trial, Del Pilar mentioned that he moved the
boom slowly when he raised it to 78
degrees.33 Philam
deems
this
narration
questionable since the "slow movement" was
never mentioned in Del Pilars earlier signed
statement.34
Examining the signed statement and the
affidavit of Del Pilar, petitioner Philam
inaccurately portrayed his narration.
In his signed statement, Del Pilar already
mentioned that he slowly moved the genset,
and when it swayed, he waited for the swinging
to stop before he lifted the equipment:
Itinuloy ko na ang pag-angat ng genset at
pagkatapos ng malagpas na sa open top van
container, dahan-dahan na ako nagpihit o
swing papunta sa kanan at pagkatapos ng nasa
direksyon na ako ng paglalagyan, itinigil ko ang

pagpihit o pag swing pagkatapos hinintay ko

ang genset sa paggalaw at ng huminto na ang
genset sa paggalaw, nagboom up ako mula 75
hanggang 78, sa tantya ko at noong mag
boom up, nag-rebolution (sic) ako at
naramdaman ko na biglang gumalaw paangat
(paboom-up) ang boom ng Crane No. CR-81 at
nag-swing na naman patungo sa akin ang
genset. At nang ito ay umindayog papalayo sa
crane ay doon ko naramdaman na iyong body
ng Crane No. CR-81 ay umangat at nakita kong
tumumba ang boom ng Crane CR-81 at
bumagsak ang genset sa loob ng Citibank (sic)
Parking Area. Noon ika-16 ng Octubre 1993 ng
oras na alas 4:55 ng umaga." (Emphasis
supplied.)
In his affidavit, Del Pilars statements
concentrated on the manner of lifting of the
genset. At this point, he recalled that the boom
was raised slowly35 :
T: Papaano mo naitaas ang "boom" ng "crane"
mula 75 digri hanggang 78 digri?
S: Dahan-dahan lang po.
T: Pagkatapos mong maitaas ang boom ng
crane sa 78 digri, iyong inumpisahan ibinaba
ang "generator set" sa lupa subalit ito ay
nagumpisang umugoy-ugoy o dumuyan-duyan
palabas at papasok ang karga na "generator
set" patungo sa akin. Ito ba ay tutuo?
S: Opo.

36

(Emphasis supplied.)

The affidavit, which the CA used as the main

basis for its Decision, pertained exactly to how
the cranes boom had been raised. It is only
when a witness makes two sworn statements,
and these two statements incur the gravest
contradictions, that the court cannot accept
both statements as proof.37

Logically, in order to raise the cranes boom,

the operator must step on the pedal; else, the
13-ton genset would not be brought down.
Philam did not even present expert evidence to
challenge the need of increasing the power
supply to move the boom.
Donato F. Solis, DMCIs electrical engineer
assigned to supervise and coordinate the
cranes operations, corroborated Del Pilars
description. He gave an eyewitness account of
the incident, and his statements thereon were
taken by the surveyor, MASC. Solis said:
Q: What happened when the genset was
already lifted out and at the above proposed
storage area?
A: After it was already at above the designated
area, the genset was still swinging during the
time (at about 4:50 a.m., October 16, 1993)
and when the genset stopped swinging I
noticed that it was being lowered slowly to the
ground and until approx. 6 feet above the
ground. I noticed that it was not being lowered
because it was moving diagonally toward us.
When it was moving toward us we ran to avoid
being hit by the genset.38
Even if Del Pilar failed to mention the slow
manner of raising the boom in his earlier
signed statement, the reverse is not
necessarily established. Persons are easily
liable to commit errors in the recollection of
minute details of an important occurrence. 39
Alternatively, Philam asserts that if care was
exercised in operating the crane, and yet the
genset was damaged, then it must have been
the very crane itself that was defective.40
We cannot give credence to mere conjectures
and assumptions on the condition of the crane

to prove negligence. In Picart v. Smith, the

Court stressed that abstract speculations
cannot be of much value:

S: Hindi po, ako po ay tinulungan ng isang

katrabahong "rigger" na ang pangalan ay si G.
MARCELINO ROMERO, ng aming Foreman na si
G. FERNANDO DELA ROSA ng Motor Pool, isang
mekaniko, at ni DONATO SOLIS, isang
ehenyero.

pagkatapos pinaandar ko ang Crane CR-81

para umpisahan iangat ang genset mula sa
open top container pagkatapos sinubukan ko
ng buhatin ang genset at nang mabuhat ng isa
o dalawang dangkal, ibinaba ko ito muli sa
dating pwesto ng maka-apat na beses.

T: Anu-ano tulong o ayuda ang naibigay sa iyo

ng bawat isa sa mga taong iyong nabanggit?

T: Bakit mo ibinaba ng apat na beses ang

genset mula ng ito ay iangat mo?
S: Sinisigurado ko ho na kaya ng Crane No. 81
ang bigat ng genset[.]45

The speculative assertion of Philam should be

supported by specific evidence of the cranes
defects. Instead, Philam utterly failed to
contradict the findings of MASC which made an
actual site inspection to observe the crane
used in lifting the genset. In its Survey
Certificate, it stated that: "[U]pon close
examination, the crane was observed in actual
operation and found to be in satisfactory
working condition."42 (Emphasis supplied.)

S: Si G. MARCELINO ROMERO na isang "rigger"

ay tumulong sa akin upang maitali ang
"generator set" sa kable ng "crane" at sa
pagbibigay ng senyas sa akin kung kailan
itataas ang pagbuhat ng "generator set", kung
kailan magaalalay sa pagtaas at mga iba pang
bagay-bagay
na
may
kinalaman
sa
pagpapatakbo ng "crane". Ang motor pool
foreman ay nandoon naman upang tingnan at
subaybayan na lahat ng bagay pangkaligtasan
sa pagbubuhat ng crane sa "generator set"
upang itoy maibaba ng maayos. Si Ehenyero
DONATO SOLIS ay ang pangkalahatang
nangangasiwa sa pagbubuhat o paglalapag ng
nasabing "generator set". Ang mekaniko
naman na hindi ko na matandaan ang kanyang
pangalan ay nandoon upang tumulong kung
sakaling magkakaroon ng suliranin pangmekanikal ang "crane".43

Since Philam failed to convince us of actions

that would lay the blame on DMCI, this Court
agrees with the CA that DMCI exercised the
necessary care and precaution in lifting the
genset.

Secondly, as found by the CA, 44 Del Pilar

exercised reasonable care and caution when he
tested the crane four times right before actual
operations to make sure that it could lift the
genset. He stated further:

Firstly, a whole team was involved in

transferring the genset. Petitioners did not
even the question the acts of the other team
members involved in the crane operations. Del
Pilar stated thus:

T: Maari (sic) mo bang isalaysay ang buong

pangyayari tungkol sa pagbuhat at pagdiskarga
ng genset mula sa open top van container na
nasa trailer ng ibabaw ng Marzan Trucking?

The question as to what would constitute the

conduct of a prudent man in a given situation
must of course be always determined in the
light of human experience and in view of the
facts involved in the particular case. Abstract
speculations cannot here be of much value but
this much can be profitably said: Reasonable
men
govern
their
conduct
by
the
circumstances which are before them or known
to them. They are not, and are not supposed to
be, omniscient of the future. Hence they can be
expected to take care only when there is
something before them to suggest or warn of
danger.41

T: Ikaw lang ba mag-isa ang magbababa ng

nasabing "generator set"?

S: Nang matalian po namin (ako at ang

nasabing rigger man) ang genset, pumunta na
po ako sa operating cab ng Crane No. CR-81

The testing of the crane during actual

operations was corroborated by Solis when he
stated as follows:
Q: What did you observe during the lifting
operation?
A: During the lifting operation, I noticed that it
took awhile (approx. 30 minutes) in lifting the
genset, because the Crane Operator, Mr. Ariel
del Pilar was testing the lifting capability of
Crane No. CR-81. I saw the genset, which was
several times lifted about 1 foot high from the
flooring of the open top van container.46
Thirdly, as can be gleaned from the statements
above, Del Pilar stopped turning the controls,
and it was only when the swinging stopped
that
he
performed
the
next
maneuver.1wphi1 All of these acts, as proven
by the evidence, showed due diligence in
operating the crane.
In their final effort to reverse the appellate
court, petitioners invoked res ipsa loquitur,
even if they never had raised this doctrine
before the trial court.
According to petitioners, the requisites of res
ipsa loquitur are present in this case. 47 Had the

principle been applied, the burden of proof in

establishing due diligence in operating the
crane would have shifted to DMCI.48

Home Insurance Corporation is hereby denied

for lack of merit.
SO ORDERED.

In this case, res ipsa loquitur is not applicable,

since there is direct evidence 49 on the issue of
diligence or lack thereof pertaining to the lifting
of the genset. The doctrine is not a rule of
substantive law, but merely a mode of proof or
a mere procedural convenience.50
In any event, res ipsa loquitur merely provides
a rebuttable presumption of negligence. On
this, we have already pointed out that the
evidence does not prove negligence on the
part of DMCI, and that due diligence on its part
has been established.
Hence, it has generally been held that the
presumption arising from the doctrine cannot
be availed of, or is overcome when the plaintiff
has knowledge and testifies or presents
evidence as to the specific act of negligence
that caused the injury complained of; or when
there is direct evidence as to the precise cause
of the accident, and with all the attendant facts
clearly
present.51 Finally,
neither
the
presumption nor the doctrine would apply
when the circumstances have been so
completely elucidated that no inference of the
defendant's liability can reasonably be made,
whatever the source of the evidence.52
Absent any finding of negligence, we sustain
the CAs findings that DMCI exercised due
diligence; that the event is an accident; and
that consequently Philam cannot claim
damages for the damaged genset.53
IN VIEW THEREOF, the assailed 28 June 2004
Decision of the Court of Appeals and its 24
September 2004 Resolution are AFFIRMED. The
11 October 2004 Petition for Review filed by
Philam Insurance Company, Inc. and American

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE
CO.,
INC., petitioner,
vs.
COURT
OF
APPEALS
and
SPOUSES
ANTONIO
ESTEBAN
and
GLORIA
ESTEBAN, respondents.

REGALADO, J.:
This case had its inception in an action for
damages instituted in the former Court of First
Instance of Negros Occidental 1 by private
respondent
spouses
against
petitioner
Philippine Long Distance Telephone Company
(PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when
their jeep ran over a mound of earth and fell
into an open trench, an excavation allegedly
undertaken by PLDT for the installation of its
underground conduit system. The complaint
alleged that respondent Antonio Esteban failed
to notice the open trench which was left
uncovered because of the creeping darkness
and the lack of any warning light or signs. As a
result of the accident, respondent Gloria
Esteban allegedly sustained injuries on her
arms, legs and face, leaving a permanent scar
on her cheek, while the respondent husband
suffered cut lips. In addition, the windshield of
the jeep was shattered. 2
PLDT, in its answer, denies liability on the
contention that the injuries sustained by
respondent spouses were the result of their
own negligence and that the entity which
should be held responsible, if at all, is L.R.
Barte and Company (Barte, for short), an
independent contractor which undertook the
construction of the manhole and the conduit
system. 3 Accordingly, PLDT filed a third-party

complaint against Barte alleging that, under

the terms of their agreement, PLDT should in
no manner be answerable for any accident or
injuries arising from the negligence or
carelessness of Barte or any of its
employees. 4 In answer thereto, Barte claimed
that it was not aware nor was it notified of the
accident involving respondent spouses and
that it had complied with the terms of its
contract with PLDT by installing the necessary
and appropriate standard signs in the vicinity
of the work site, with barricades at both ends
of the excavation and with red lights at night
along the excavated area to warn the traveling
public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a
decision in favor of private respondents, the
decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the
defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the
plaintiff Gloria Esteban the sum of P20,000.00
as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum
of P2,000.00 as moral damages and P500.00 as
exemplary damages, with legal rate of interest
from the date of the filing of the complaint until
fully paid. The defendant is hereby ordered to
pay the plaintiff the sum of P3,000.00 as
attorney's fees.
(B) The third-party defendant is hereby ordered
to reimburse whatever amount the defendantthird party plaintiff has paid to the plaintiff.
With costs against the defendant. 6
From this decision both PLDT and private
respondents appealed, the latter appealing
only as to the amount of damages. Third-party
defendant Barte did not appeal.

On September 25, 1979, the Special Second

Division of the Court of Appeals rendered a
decision in said appealed case, with Justice
Corazon Juliano Agrava as ponente, reversing
the decision of the lower court and dismissing
the complaint of respondent spouses. It held
that respondent Esteban spouses were
negligent and consequently absolved petitioner
PLDT from the claim for damages. 7 A copy of
this decision was received by private
respondents on October 10, 1979. 8 On October
25, 1979, said respondents filed a motion for
reconsideration dated October 24, 1979. 9 On
January 24, 1980, the Special Ninth Division of
the Court of Appeals denied said motion for
reconsideration.10 This resolution was received
by respondent spouses on February 22,
1980. 11
On February 29, 1980, respondent Court of
Appeals received private respondents' motion
for leave of court to file a second motion for
reconsideration,
dated
February
27,
1980. 12 On March 11, 1980, respondent court,
in a resolution likewise penned by Justice
Agrava, allowed respondents to file a second
motion for reconsideration, within ten (10) days
from notice thereof. 13 Said resolution was
received by private respondents on April 1,
1980 but prior thereto, private respondents
had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an
opposition to and/or motion to dismiss said
second motion for reconsideration. 15 The Court
of Appeals, in view of the divergent opinions on
the resolution of the second motion for
reconsideration, designated two additional
justices to form a division of five. 16 On
September 3, 1980, said division of five
promulgated its resolution, penned by Justice
Mariano A. Zosa, setting aside the decision
dated September 25, 1979, as well as the

resolution dated, January 24,1980, and

affirming in toto the decision of the lower
court. 17
On September 19, 1980, petitioner PLDT filed a
motion to set aside and/or for reconsideration
of the resolution of September 3, 1980,
contending that the second motion for
reconsideration of private respondent spouses
was filed out of time and that the decision of
September 25, 1979 penned by Justice Agrava
was already final. It further submitted therein
that the relationship of Barte and petitioner
PLDT should be viewed in the light of the
contract between them and, under the
independent contractor rule, PLDT is not liable
for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals
promulgated its resolution denying said motion
to set aside and/or for reconsideration and
affirming in toto the decision of the lower court
dated October 1, 1974. 19
Coming to this Court on a petition for review
on certiorari, petitioner assigns the following
errors:
1. Respondent Court of Appeals erred in not
denying private respondents' second motion
for reconsideration on the ground that the
decision of the Special Second Division, dated
September 25, 1979, and the resolution of the
Special Ninth Division, dated January 24, 1980,
are already final, and on the additional ground
that said second motion for reconsideration
is pro forma.
2. Respondent court erred in reversing the
aforesaid decision and resolution and in
misapplying the independent contractor rule in
holding PLDT liable to respondent Esteban
spouses.

A convenient resume of the relevant

proceedings in the respondent court, as shown
by the records and admitted by both parties,
may be graphically presented as follows:
(a) September 25, 1979, a decision was
rendered by the Court of Appeals with Justice
Agrava asponente;
(b) October 10, 1979, a copy of said decision
was received by private respondents;
(c) October 25, 1979, a
reconsideration
was
filed
respondents;

motion for
by
private

(d) January 24, 1980, a resolution was issued

denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial
resolution
was
received
by
private
respondents;
(f) February 29, 1980, a motion for leave to file
a second motion for reconsideration was filed
by private respondents
(g) March 7, 1980, a second motion for
reconsideration
was
filed
by
private
respondents;
(h) March 11, 1980, a resolution was issued
allowing respondents to file a second motion
for reconsideration within ten (10) days from
receipt; and
(i) September 3, 1980, a resolution was issued,
penned by Justice Zosa, reversing the original
decision dated September 25, 1979 and setting
aside the resolution dated January 24, 1980.
From the foregoing chronology, we are
convinced that both the motion for leave to file

a second motion for reconsideration and,

consequently,
said
second
motion
for
reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which
had procedural governance at the time,
provided
that
a
second
motion
for
reconsideration may be presented within
fifteen (15) days from notice of the order or
judgment deducting the time in which the first
motion
has
been
pending. 20 Private
respondents having filed their first motion for
reconsideration on the last day of the
reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from
receipt of the order denying said motion to file,
with leave of court, a second motion for
reconsideration. 21 In the present case, after
their receipt on February 22, 1980 of the
resolution denying their first motion for
reconsideration, private respondents had two
remedial options. On February 23, 1980, the
remaining one (1) day of the aforesaid
reglementary period, they could have filed a
motion for leave of court to file a second
motion for reconsideration, conceivably with a
prayer for the extension of the period within
which to do so. On the other hand, they could
have appealed through a petition for review on
certiorari to this Court within fifteen (15) days
from February 23, 1980. 22 Instead, they filed a
motion for leave to file a second motion 'for
reconsideration on February 29, 1980, and said
second motion for reconsideration on March 7,
1980, both of which motions were by then
time-barred.
Consequently, after the expiration on February
24, 1980 of the original fifteen (15) day period,
the running of which was suspended during the
pendency
of
the
first
motion
for
reconsideration, the Court of Appeals could no
longer validly take further proceedings on the
merits of the case, much less to alter, modify

or reconsider its aforesaid decision and/or

resolution. The filing of the motion for leave to
file a second motion for reconsideration by
herein respondents on February 29, 1980 and
the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the
reglementary period to file the same, produced
no legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final
order or judgment sought to be re-examined. 23
The consequential result is that the resolution
of respondent court of March 11, 1980 granting
private respondents' aforesaid motion for leave
and, giving them an extension of ten (10) days
to file a second motion for reconsideration, is
null and void. The period for filing a second
motion for reconsideration had already expired
when private respondents sought leave to file
the same, and respondent court no longer had
the power to entertain or grant the said
motion. The aforesaid extension of ten (10)
days for private respondents to file their
second motion for reconsideration was of no
legal consequence since it was given when
there was no more period to extend. It is an
elementary rule that an application for
extension of time must be filed prior to the
expiration of the period sought to be
extended. 24 Necessarily, the discretion of
respondent court to grant said extension for
filing a second motion for reconsideration is
conditioned upon the timeliness of the motion
seeking the same.
No appeal having been taken seasonably, the
respondent court's decision, dated September
25, 1979, became final and executory on March
9, 1980. The subsequent resolutions of
respondent court, dated March 11, 1980 and
September
3,
1980,
allowing
private
respondents to file a second motion for
reconsideration and reversing the original
decision are null and void and cannot disturb

the finality of the judgment nor restore

jurisdiction to respondent court. This is but in
line with the accepted rule that once a decision
has become final and executory it is removed
from the power and jurisdiction of the court
which rendered it to further alter or amend,
much less revoke it. 25 The decision rendered
anew is null and void. 26 The court's inherent
power to correct its own errors should be
exercised before the finality of the decision or
order sought to be corrected, otherwise
litigation will be endless and no question could
be considered finally settled. Although the
granting
or
denial
of
a
motion
for
reconsideration involves the exercise of
discretion, 27 the same should not be exercised
whimsically, capriciously or arbitrarily, but
prudently in conformity with law, justice,
reason and equity. 28
Prescinding from the aforesaid procedural
lapses into the substantive merits of the case,
we find no error in the findings of the
respondent court in its original decision that
the accident which befell private respondents
was due to the lack of diligence of respondent
Antonio Esteban and was not imputable to
negligent omission on the part of petitioner
PLDT. Such findings were reached after an
exhaustive assessment and evaluation of the
evidence on record, as evidenced by the
respondent court's resolution of January 24,
1980 which we quote with approval:
First. Plaintiff's jeep was running along the
inside lane of Lacson Street. If it had remained
on that inside lane, it would not have hit the
ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that
the ACCIDENT MOUND was hit by the jeep
swerving from the left that is, swerving from
the inside lane. What caused the swerving is
not disclosed; but, as the cause of the

accident, defendant cannot be made liable for

the damages suffered by plaintiffs. The
accident was not due to the absence of
warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane. That
may explain plaintiff-husband's insistence that
he did not see the ACCIDENT MOUND for which
reason he ran into it.
Second. That plaintiff's jeep was on the inside
lane before it swerved to hit the ACCIDENT
MOUND could have been corroborated by a
picture showing Lacson Street to the south of
the ACCIDENT MOUND.
It has been stated that the ditches along
Lacson Street had already been covered except
the 3 or 4 meters where the ACCIDENT MOUND
was located. Exhibit B-1 shows that the ditches
on Lacson Street north of the ACCIDENT
MOUND had already been covered, but not in
such a way as to allow the outer lane to be
freely and conveniently passable to vehicles.
The situation could have been worse to the
south of the ACCIDENT MOUND for which
reason no picture of the ACCIDENT MOUND
facing south was taken.
Third. Plaintiff's jeep was not running at 25
kilometers an hour as plaintiff-husband
claimed. At that speed, he could have braked
the vehicle the moment it struck the ACCIDENT
MOUND. The jeep would not have climbed the
ACCIDENT MOUND several feet as indicated by
the tiremarks in Exhibit B. The jeep must have
been running quite fast. If the jeep had been
braked at 25 kilometers an hour, plaintiff's
would not have been thrown against the
windshield and they would not have suffered
their injuries.
Fourth. If the accident did not happen because
the jeep was running quite fast on the inside
lane and for some reason or other it had to

swerve suddenly to the right and had to climb

over the ACCIDENT MOUND, then plaintiffhusband had not exercised the diligence of a
good father of a family to avoid the accident.
With the drizzle, he should not have run on dim
lights, but should have put on his regular lights
which should have made him see the
ACCIDENT MOUND in time. If he was running
on the outside lane at 25 kilometers an hour,
even on dim lights, his failure to see the
ACCIDENT MOUND in time to brake the car was
negligence on his part. The ACCIDENT MOUND
was relatively big and visible, being 2 to 3 feet
high and 1-1/2 feet wide. If he did not see the
ACCIDENT MOUND in time, he would not have
seen any warning sign either. He knew of the
existence and location of the ACCIDENT
MOUND, having seen it many previous times.
With ordinary precaution, he should have
driven his jeep on the night of the accident so
as to avoid hitting the ACCIDENT MOUND. 29
The above findings clearly show that the
negligence of respondent Antonio Esteban was
not only contributory to his injuries and those
of his wife but goes to the very cause of the
occurrence of the accident, as one of its
determining factors, and thereby precludes
their right to recover damages. 30 The perils of
the road were known to, hence appreciated
and assumed by, private respondents. By
exercising reasonable care and prudence,
respondent Antonio Esteban could have
avoided the injurious consequences of his act,
even assuming arguendo that there was some
alleged negligence on the part of petitioner.
The presence of warning signs could not have
completely prevented the accident; the only
purpose of said signs was to inform and warn
the public of the presence of excavations on
the site. The private respondents already knew
of the presence of said excavations. It was not
the lack of knowledge of these excavations

which caused the jeep of respondents to fall

into the excavation but the unexplained
sudden swerving of the jeep from the inside
lane towards the accident mound. As opined in
some quarters, the omission to perform a duty,
such as the placing of warning signs on the site
of the excavation, constitutes the proximate
cause only when the doing of the said omitted
act would have prevented the injury. 31 It is
basic that private respondents cannot charge
PLDT for their injuries where their own failure
to exercise due and reasonable care was the
cause thereof. It is both a societal norm and
necessity that one should exercise a
reasonable degree of caution for his own
protection. Furthermore, respondent Antonio
Esteban had the last clear chance or
opportunity
to
avoid
the
accident,
notwithstanding the negligence he imputes to
petitioner PLDT. As a resident of Lacson Street,
he passed on that street almost everyday and
had knowledge of the presence and location of
the excavations there. It was his negligence
that exposed him and his wife to danger, hence
he is solely responsible for the consequences
of his imprudence.
Moreover, we also sustain the findings of
respondent Court of Appeals in its original
decision that there was insufficient evidence to
prove any negligence on the part of PLDT. We
have for consideration only the self-serving
testimony of respondent Antonio Esteban and
the unverified photograph of merely a portion
of the scene of the accident. The absence of a
police report of the incident and the nonsubmission of a medical report from the
hospital where private respondents were
allegedly treated have not even been
satisfactorily explained.
As aptly observed by respondent court in its
aforecited extended resolution of January 24,
1980

(a) There was no third party eyewitness of the

accident. As to how the accident occurred, the
Court can only rely on the testimonial evidence
of plaintiffs themselves, and such evidence
should be very carefully evaluated, with
defendant, as the party being charged, being
given the benefit of any doubt. Definitely
without ascribing the same motivation to
plaintiffs,
another
person
could
have
deliberately engineered a similar accident in
the hope and expectation that the Court can
grant him substantial moral and exemplary
damages from the big corporation that
defendant is. The statement is made only to
stress the disadvantageous position of
defendant which would have extreme difficulty
in contesting such person's claim. If there were
no witness or record available from the police
department of Bacolod, defendant would not
be able to determine for itself which of the
conflicting testimonies of plaintiffs is correct as
to the report or non-report of the accident to
the police department. 32
A person claiming damages for the negligence
of another has the burden of proving the
existence of such fault or negligence causative
thereof. The facts constitutive of negligence
must
be
affirmatively
established
by
competent evidence. 33 Whosoever relies on
negligence for his cause of action has the
burden in the first instance of proving the
existence of the same if contested, otherwise
his action must fail.
WHEREFORE, the resolutions of respondent
Court of Appeals, dated March 11, 1980 and
September 3,1980, are hereby SET ASIDE. Its
original decision, promulgated on September
25,1979, is hereby REINSTATED and AFFIRMED.
G.R. No. 139130
2002

November 27,

RAMON
K.
ILUSORIO, petitioner,
vs.
HON. COURT OF APPEALS, and THE
MANILA
BANKING
CORPORATION, respondents.
DECISION
QUISUMBING, J.:
This petition for review seeks to reverse the
decision1 promulgated on January 28, 1999 by
the Court of Appeals in CA-G.R. CV No. 47942,
affirming the decision of the then Court of First
Instance of Rizal, Branch XV (now the Regional
Trial Court of Makati, Branch 138) dismissing
Civil Case No. 43907, for damages.
The facts as summarized by the Court of
Appeals are as follows:
Petitioner is a prominent businessman who, at
the time material to this case, was the
Managing Director of Multinational Investment
Bancorporation and the Chairman and/or
President of several other corporations. He was
a depositor in good standing of respondent
bank, the Manila Banking Corporation, under
current Checking Account No. 06-09037-0. As
he was then running about 20 corporations,
and was going out of the country a number of
times, petitioner entrusted to his secretary,
Katherine2 E. Eugenio, his credit cards and his
checkbook with blank checks. It was also
Eugenio who verified and reconciled the
statements of said checking account.3
Between the dates September 5, 1980 and
January 23, 1981, Eugenio was able to encash
and deposit to her personal account about
seventeen (17) checks drawn against the
account of the petitioner at the respondent
bank,
with
an
aggregate
amount

of P119,634.34. Petitioner did not bother to

check his statement of account until a business
partner apprised him that he saw Eugenio use
his credit cards. Petitioner fired Eugenio
immediately, and instituted a criminal action
against her for estafa thru falsification before
the Office of the Provincial Fiscal of Rizal.
Private respondent, through an affidavit
executed by its employee, Mr. Dante Razon,
also lodged a complaint for estafa thru
falsification of commercial documents against
Eugenio on the basis of petitioners statement
that his signatures in the checks were
forged.4 Mr. Razons affidavit states:
That I have examined and scrutinized the
following checks in accordance with prescribed
verification procedures with utmost care and
diligence by comparing the signatures affixed
thereat against the specimen signatures of Mr.
Ramon K. Ilusorio which we have on file at our
said office on such dates,
xxx
That the aforementioned checks were among
those issued by Manilabank in favor of its client
MR. RAMON K. ILUSORIO,
That the same were personally encashed by
KATHERINE E. ESTEBAN, an executive secretary
of MR. RAMON K. ILUSORIO in said Investment
Corporation;
That I have met and known her as KATHERINE
E. ESTEBAN the attending verifier when she
personally encashed the above-mentioned
checks at our said office;
That MR. RAMON K. ILUSORIO executed an
affidavit expressly disowning his signature
appearing on the checks further alleged to

have not authorized the

encashment of the same.5

issuance

and

Petitioner then requested the respondent bank

to credit back and restore to its account the
value of the checks which were wrongfully
encashed but respondent bank refused. Hence,
petitioner filed the instant case.6
At the trial, petitioner testified on his own
behalf, attesting to the truth of the
circumstances as narrated above, and how he
discovered the alleged forgeries. Several
employees of Manila Bank were also called to
the witness stand as hostile witnesses. They
testified that it is the banks standard
operating procedure that whenever a check is
presented for encashment or clearing, the
signature on the check is first verified against
the specimen signature cards on file with the
bank.
Manila Bank also sought the expertise of the
National Bureau of Investigation (NBI) in
determining the genuineness of the signatures
appearing on the checks. However, in a letter
dated March 25, 1987, the NBI informed the
trial court that they could not conduct the
desired examination for the reason that the
standard specimens submitted were not
sufficient for purposes of rendering a definitive
opinion. The NBI then suggested that petitioner
be asked to submit seven (7) or more
additional standard signatures executed before
or about, and immediately after the dates of
the questioned checks. Petitioner, however,
failed to comply with this request.
After evaluating the evidence on both sides,
the court a quo rendered judgment on May 12,
1994 with the following dispositive portion:
WHEREFORE, finding no sufficient basis for
plaintiff's cause herein against defendant bank,

in the light of the foregoing considerations and

established facts, this case would have to be,
as it is hereby DISMISSED.
Defendants
counterclaim
is
DISMISSED for lack of sufficient basis.
SO ORDERED.

likewise

Aggrieved, petitioner elevated the case to the

Court of Appeals by way of a petition for review
but without success. The appellate court held
that petitioners own negligence was the
proximate cause of his loss. The appellate
court disposed as follows:
WHEREFORE, the judgment appealed from is
AFFIRMED. Costs against the appellant.
SO ORDERED.8
Before us, petitioner ascribes the following
errors to the Court of Appeals:
A. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE RESPONDENT BANK IS
ESTOPPED FROM RAISING THE DEFENSE THAT
THERE WAS NO FORGERY OF THE SIGNATURES
OF THE PETITIONER IN THE CHECK BECAUSE
THE
RESPONDENT
FILED
A
CRIMINAL
COMPLAINT FOR ESTAFA THRU FALSIFICATION
OF
COMMERCIAL
DOCUMENTS
AGAINST
KATHERINE EUGENIO USING THE AFFIDAVIT OF
PETITIONER STATING THAT HIS SIGNATURES
WERE FORGED AS PART OF THE AFFIDAVITCOMPLAINT.9
B. THE COURT OF APPEALS ERRED IN NOT
APPLYING SEC. 23, NEGOTIABLE INSTRUMENTS
LAW.10
C. THE COURT OF APPEALS ERRED IN NOT
HOLDING THE BURDEN OF PROOF IS WITH THE

RESPONDENT BANK TO PROVE THE DUE

DILIGENCE TO PREVENT DAMAGE, TO THE
PETITIONER, AND THAT IT WAS NOT NEGLIGENT
IN THE SELECTION AND SUPERVISION OF ITS
EMPLOYEES.11
D. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT RESPONDENT BANK SHOULD
BEAR THE LOSS, AND SHOULD BE MADE TO PAY
PETITIONER,
WITH
RECOURSE
AGAINST
KATHERINE EUGENIO ESTEBAN.12
Essentially the issues in this case are: (1)
whether or not petitioner has a cause of action
against private respondent; and (2) whether or
not private respondent, in filing an estafa case
against petitioners secretary, is barred from
raising the defense that the fact of forgery was
not established.
Petitioner contends that Manila Bank is liable
for damages for its negligence in failing to
detect the discrepant checks. He adds that as a
general rule a bank which has obtained
possession of a check upon an unauthorized or
forged endorsement of the payees signature
and which collects the amount of the check
from the drawee is liable for the proceeds
thereof to the payee. Petitioner invokes the
doctrine of estoppel, saying that having itself
instituted a forgery case against Eugenio,
Manila Bank is now estopped from asserting
that the fact of forgery was never proven.
For its part, Manila Bank contends that
respondent appellate court did not depart from
the accepted and usual course of judicial
proceedings, hence there is no reason for the
reversal of its ruling. Manila Bank additionally
points out that Section 23 13 of the Negotiable
Instruments Law is inapplicable, considering
that the fact of forgery was never proven.
Lastly, the bank negates petitioners claim of
estoppel.14

On the first issue, we find that petitioner has

no cause of action against Manila Bank. To be
entitled to damages, petitioner has the burden
of proving negligence on the part of the bank
for failure to detect the discrepancy in the
signatures on the checks. It is incumbent upon
petitioner to establish the fact of forgery, i.e.,
by submitting his specimen signatures and
comparing them with those on the questioned
checks. Curiously though, petitioner failed to
submit additional specimen signatures as
requested by the National Bureau of
Investigation from which to draw a conclusive
finding regarding forgery. The Court of Appeals
found that petitioner, by his own inaction, was
precluded from setting up forgery. Said the
appellate court:
We cannot fault the court a quo for such
declaration, considering that the plaintiffs
evidence on the alleged forgery is not
convincing enough. The burden to prove
forgery was upon the plaintiff, which burden he
failed to discharge. Aside from his own
testimony, the appellant presented no other
evidence to prove the fact of forgery. He did
not even submit his own specimen signatures,
taken on or about the date of the questioned
checks, for examination and comparison with
those of the subject checks. On the other hand,
the appellee presented specimen signature
cards of the appellant, taken at various years,
namely, in 1976, 1979 and 1981 (Exhibits "1",
"2", "3" and "7"), showing variances in the
appellants unquestioned signatures. The
evidence further shows that the appellee, as
soon as it was informed by the appellant about
his questioned signatures, sought to borrow the
questioned checks from the appellant for
purposes of analysis and examination (Exhibit
"9"), but the same was denied by the
appellant. It was also the former which sought
the assistance of the NBI for an expert analysis
of the signatures on the questioned checks, but

the same was unsuccessful for lack of sufficient

specimen signatures.15
Moreover, petitioners contention that Manila
Bank was remiss in the exercise of its duty as
drawee lacks factual basis. Consistently, the CA
and the RTC found that Manila Bank employees
exercised due diligence in cashing the checks.
The banks employees in the present case did
not have a hint as to Eugenios modus
operandi because she was a regular customer
of the bank, having been designated by
petitioner himself to transact in his behalf.
According to the appellate court, the
employees of the bank exercised due diligence
in the performance of their duties. Thus, it
found that:
The evidence on both sides indicates that
TMBCs employees exercised due diligence
before encashing the checks. Its verifiers first
verified the drawers signatures thereon as
against his specimen signature cards, and
when in doubt, the verifier went further, such
as by referring to a more experienced verifier
for further verification. In some instances the
verifier made a confirmation by calling the
depositor by phone. It is only after taking such
precautionary measures that the subject
checks were given to the teller for payment.
Of course it is possible that the verifiers of
TMBC might have made a mistake in failing to
detect any forgery -- if indeed there was.
However, a mistake is not equivalent to
negligence if they were honest mistakes. In the
instant case, we believe and so hold that if
there were mistakes, the same were not
deliberate, since the bank took all the
precautions.16
As borne by the records, it was petitioner, not
the bank, who was negligent. Negligence is the
omission to do something which a reasonable

man, guided by those considerations which

ordinarily regulate the conduct of human
affairs, would do, or the doing of something
which a prudent and reasonable man would
do.17 In the present case, it appears that
petitioner accorded his secretary unusual
degree of trust and unrestricted access to his
credit cards, passbooks, check books, bank
statements, including custody and possession
of cancelled checks and reconciliation of
accounts. Said the Court of Appeals on this
matter:
Moreover, the appellant had introduced his
secretary to the bank for purposes of
reconciliation of his account, through a letter
dated July 14, 1980 (Exhibit "8"). Thus, the said
secretary became a familiar figure in the bank.
What is worse, whenever the bank verifiers call
the office of the appellant, it is the same
secretary who answers and confirms the
checks.
The trouble is, the appellant had put so much
trust and confidence in the said secretary, by
entrusting not only his credit cards with her but
also his checkbook with blank checks. He also
entrusted to her the verification and
reconciliation of his account. Further adding to
his injury was the fact that while the bank was
sending him the monthly Statements of
Accounts, he was not personally checking the
same. His testimony did not indicate that he
was out of the country during the period
covered by the checks. Thus, he had all the
opportunities to verify his account as well as
the cancelled checks issued thereunder -month after month. But he did not, until his
partner asked him whether he had entrusted
his credit card to his secretary because the
said partner had seen her use the same. It was
only then that he was minded to verify the
records of his account. 18

The abovecited findings are binding upon the

reviewing court. We stress the rule that the
factual findings of a trial court, especially when
affirmed by the appellate court, are binding
upon us19 and entitled to utmost respect20 and
even finality. We find no palpable error that
would warrant a reversal of the appellate
courts assessment of facts anchored upon the
evidence on record.
Petitioners failure to examine his bank
statements appears as the proximate cause of
his own damage. Proximate cause is that
cause, which, in natural and continuous
sequence,
unbroken
by
any
efficient
intervening cause, produces the injury, and
without which the result would not have
occurred.21 In the instant case, the bank was
not shown to be remiss in its duty of sending
monthly bank statements to petitioner so that
any error or discrepancy in the entries therein
could be brought to the banks attention at the
earliest opportunity. But, petitioner failed to
examine these bank statements not because
he was prevented by some cause in not doing
so, but because he did not pay sufficient
attention to the matter. Had he done so, he
could have been alerted to any anomaly
committed against him. In other words,
petitioner had sufficient opportunity to prevent
or detect any misappropriation by his secretary
had he only reviewed the status of his accounts
based on the bank statements sent to him
regularly. In view of Article 2179 of the New
Civil
Code,22 when
the
plaintiffs
own
negligence was the immediate and proximate
cause of his injury, no recovery could be had
for damages.
Petitioner further contends that under Section
23 of the Negotiable Instruments Law a forged
check is inoperative, and that Manila Bank had
no authority to pay the forged checks. True, it
is a rule that when a signature is forged or

made without the authority of the person

whose signature it purports to be, the check is
wholly inoperative. No right to retain the
instrument, or to give a discharge therefor, or
to enforce payment thereof against any party,
can be acquired through or under such
signature. However, the rule does provide for
an exception, namely: "unless the party against
whom it is sought to enforce such right is
precluded from setting up the forgery or want
of authority." In the instant case, it is the
exception that applies. In our view, petitioner is
precluded from setting up the forgery,
assuming there is forgery, due to his own
negligence in entrusting to his secretary his
credit cards and checkbook including the
verification of his statements of account.
Petitioners reliance on Associated Bank vs.
Court of Appeals23 and Philippine Bank of
Commerce vs. CA24 to buttress his contention
that respondent Manila Bank as the collecting
or last endorser generally suffers the loss
because it has the duty to ascertain the
genuineness of all prior endorsements is
misplaced. In the cited cases, the fact of
forgery was not in issue. In the present case,
the fact of forgery was not established with
certainty. In those cited cases, the collecting
banks were held to be negligent for failing to
observe precautionary measures to detect the
forgery. In the case before us, both courts
below uniformly found that Manila Banks
personnel diligently performed their duties,
having compared the signature in the checks
from the specimen signatures on record and
satisfied themselves that it was petitioners.
On the second issue, the fact that Manila Bank
had filed a case for estafa against Eugenio
would not estop it from asserting the fact that
forgery has not been clearly established.
Petitioner cannot hold private respondent in
estoppel for the latter is not the actual party to

the criminal action. In a criminal action, the

State is the plaintiff, for the commission of a
felony is an offense against the State. 25 Thus,
under Section 2, Rule 110 of the Rules of Court
the complaint or information filed in court is
required to be brought in the name of the
"People of the Philippines." 26
Further, as petitioner himself stated in his
petition, respondent bank filed the estafa case
against Eugenio on the basis of petitioners
own affidavit,27 but without admitting that he
had any personal knowledge of the alleged
forgery. It is, therefore, easy to understand that
the filing of the estafa case by respondent
bank was a last ditch effort to salvage its ties
with the petitioner as a valuable client, by
bolstering the estafa case which he filed
against his secretary.
All told, we find no reversible error that can be
ascribed to the Court of Appeals.
WHEREFORE, the instant petition is DENIED for
lack of merit. The assailed decision of the Court
of Appeals dated January 28, 1999 in CA-G.R.
CV No. 47942, is AFFIRMED.
Costs against petitioner.
SO ORDERED.

G.R. No. 154259

February 28, 2005

NIKKO HOTEL MANILA GARDEN and RUBY

LIM, petitioners,
vs.
ROBERTO
REYES,
a.k.a.
"AMAY
BISAYA," respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari,
petitioners Nikko Hotel Manila Garden (Hotel
Nikko)1 and Ruby Lim assail the Decision 2 of the
Court of Appeals dated 26 November 2001
reversing the Decision3 of the Regional Trial
Court (RTC) of Quezon City, Branch 104, as well
as the Resolution4 of the Court of Appeals
dated 09 July 2002 which denied petitioners
motion for reconsideration.
The cause of action before the trial court was
one for damages brought under the human
relations provisions of the New Civil Code.
Plaintiff thereat (respondent herein) Roberto
Reyes, more popularly known by the screen
name "Amay Bisaya," alleged that at around
6:00 oclock in the evening of 13 October 1994,
while he was having coffee at the lobby of
Hotel Nikko,5 he was spotted by his friend of
several years, Dr. Violeta Filart, who then
approached him.6 Mrs. Filart invited him to join
her in a party at the hotels penthouse in
celebration of the natal day of the hotels
manager, Mr. Masakazu Tsuruoka.7 Mr. Reyes
asked if she could vouch for him for which she
replied: "of course."8 Mr. Reyes then went up
with the party of Dr. Filart carrying the basket
of fruits which was the latters present for the
celebrant.9 At the penthouse, they first had
their picture taken with the celebrant after
which Mr. Reyes sat with the party of Dr.
Filart.10 After a couple of hours, when the buffet

dinner was ready, Mr. Reyes lined-up at the

buffet table but, to his great shock, shame and
embarrassment, he was stopped by petitioner
herein, Ruby Lim, who claimed to speak for
Hotel Nikko as Executive Secretary thereof. 11 In
a loud voice and within the presence and
hearing of the other guests who were making a
queue at the buffet table, Ruby Lim told him to
leave the party ("huwag ka nang kumain, hindi
ka imbitado, bumaba ka na lang").12 Mr. Reyes
tried to explain that he was invited by Dr.
Filart.13 Dr. Filart, who was within hearing
distance, however, completely ignored him
thus adding to his shame and humiliation. 14 Not
long after, while he was still recovering from
the traumatic experience, a Makati policeman
approached and asked him to step out of the
hotel.15 Like a common criminal, he was
escorted
out
of
the
party
by
the
policeman.16 Claiming damages, Mr. Reyes
asked for One Million Pesos actual damages,
One Million Pesos moral and/or exemplary
damages and Two Hundred Thousand Pesos
attorneys fees.17
Ruby Lim, for her part, admitted having asked
Mr. Reyes to leave the party but not under the
ignominious circumstance painted by the latter.
Ms. Lim narrated that she was the Hotels
Executive Secretary for the past twenty (20)
years.18 One
of
her
functions
included
organizing the birthday party of the hotels
former General Manager, Mr. Tsuruoka. 19 The
year 1994 was no different. For Mr. Tsuruokas
party, Ms. Lim generated an exclusive guest
list and extended invitations accordingly. 20 The
guest list was limited to approximately sixty
(60) of Mr. Tsuruokas closest friends and some
hotel employees and that Mr. Reyes was not
one of those invited.21 At the party, Ms. Lim
first noticed Mr. Reyes at the bar counter
ordering a drink.22 Mindful of Mr. Tsuruokas
wishes to keep the party intimate, Ms. Lim
approached Mr. Boy Miller, the "captain waiter,"

to inquire as to the presence of Mr. Reyes who

was not invited.23 Mr. Miller replied that he saw
Mr. Reyes with the group of Dr. Filart. 24 As Dr.
Filart was engaged in conversation with
another guest and as Ms. Lim did not want to
interrupt, she inquired instead from the sister
of Dr. Filart, Ms. Zenaida Fruto, who told her
that Dr. Filart did not invite Mr. Reyes. 25 Ms. Lim
then requested Ms. Fruto to tell Mr. Reyes to
leave the party as he was not invited. 26 Mr.
Reyes, however, lingered prompting Ms. Lim to
inquire from Ms. Fruto who said that Mr. Reyes
did not want to leave.27 When Ms. Lim turned
around, she saw Mr. Reyes conversing with a
Captain
Batung
whom
she
later
approached.28Believing that Captain Batung
and Mr. Reyes knew each other, Ms. Lim
requested from him the same favor from Ms.
Fruto, i.e., for Captain Batung to tell Mr. Reyes
to leave the party as he was not invited. 29 Still,
Mr. Reyes lingered. When Ms. Lim spotted Mr.
Reyes by the buffet table, she decided to speak
to him herself as there were no other guests in
the immediate vicinity.30 However, as Mr. Reyes
was already helping himself to the food, she
decided to wait.31 When Mr. Reyes went to a
corner and started to eat, Ms. Lim approached
him and said: "alam ninyo, hindo ho kayo
dapat nandito. Pero total nakakuha na ho kayo
ng pagkain, ubusin na lang ninyo at
pagkatapos kung pwede lang po umalis na
kayo."32 She then turned around trusting that
Mr. Reyes would show enough decency to
leave, but to her surprise, he began screaming
and making a big scene, and even threatened
to dump food on her.331awphi1.nt
Dr. Violeta Filart, the third defendant in the
complaint before the lower court, also gave her
version of the story to the effect that she never
invited Mr. Reyes to the party.34 According to
her, it was Mr. Reyes who volunteered to carry
the basket of fruits intended for the celebrant
as he was likewise going to take the elevator,

not to the penthouse but to Altitude 49. 35 When

they reached the penthouse, she reminded Mr.
Reyes to go down as he was not properly
dressed and was not invited. 36 All the while,
she thought that Mr. Reyes already left the
place, but she later saw him at the bar talking
to Col. Batung.37 Then there was a commotion
and she saw Mr. Reyes shouting. 38 She ignored
Mr. Reyes.39 She was embarrassed and did not
want the celebrant to think that she invited
him.40
After trial on the merits, the court a
quo dismissed the complaint,41 giving more
credence to the testimony of Ms. Lim that she
was discreet in asking Mr. Reyes to leave the
party. The trial court likewise ratiocinated that
Mr. Reyes assumed the risk of being thrown out
of the party as he was uninvited:
Plaintiff had no business being at the party
because he was not a guest of Mr. Tsuruoka,
the birthday celebrant. He assumed the risk of
being asked to leave for attending a party to
which he was not invited by the host. Damages
are pecuniary consequences which the law
imposes for the breach of some duty or the
violation of some right. Thus, no recovery can
be had against defendants Nikko Hotel and
Ruby Lim because he himself was at fault
(Garciano v. Court of Appeals, 212 SCRA 436).
He knew that it was not the party of defendant
Violeta Filart even if she allowed him to join her
and took responsibility for his attendance at
the party. His action against defendants Nikko
Hotel and Ruby Lim must therefore fail.42
On appeal, the Court of Appeals reversed the
ruling of the trial court as it found more
commanding of belief the testimony of Mr.
Reyes that Ms. Lim ordered him to leave in a
loud voice within hearing distance of several
guests:

In putting appellant in a very embarrassing

situation, telling him that he should not finish
his food and to leave the place within the
hearing distance of other guests is an act
which is contrary to morals, good customs . . .,
for which appellees should compensate the
appellant for the damage suffered by the latter
as a consequence therefore (Art. 21, New Civil
Code). The liability arises from the acts which
are in themselves legal or not prohibited, but
contrary to morals or good customs.
Conversely, even in the exercise of a formal
right, [one] cannot with impunity intentionally
cause damage to another in a manner contrary
to morals or good customs.43
The Court of Appeals likewise ruled that the
actuation of Ms. Lim in approaching several
people to inquire into the presence of Mr. Reyes
exposed the latter to ridicule and was uncalled
for as she should have approached Dr. Filart
first and both of them should have talked to Mr.
Reyes in private:
Said acts of appellee Lim are uncalled for. What
should have been done by appellee Lim was to
approach appellee Mrs. Filart and together they
should have told appellant Reyes in private
that the latter should leave the party as the
celebrant only wanted close friends around. It
is necessary that Mrs. Filart be the one to
approach appellant because it was she who
invited appellant in that occasion. Were it not
for Mrs. Filarts invitation, appellant could not
have suffered such humiliation. For that,
appellee Filart is equally liable.
...
The acts of [appellee] Lim are causes of action
which are predicated upon mere rudeness or
lack of consideration of one person, which calls
not only protection of human dignity but
respect of such dignity. Under Article 20 of the

Civil Code, every person who violates this duty

becomes liable for damages, especially if said
acts were attended by malice or bad faith. Bad
faith does not simply connote bad judgment or
simple negligence. It imports a dishonest
purpose or some moral obliquity and conscious
doing of a wrong, a breach of a known duty to
some motive or interest or ill-will that partakes
of the nature of fraud (Cojuangco, Jr. v. CA, et
al., 309 SCRA 603).44
Consequently, the Court of Appeals imposed
upon Hotel Nikko, Ruby Lim and Dr. Violeta
Filart the solidary obligation to pay Mr. Reyes
(1) exemplary damages in the amount of Two
Hundred Thousand Pesos (P200,000); (2) moral
damages in the amount of Two Hundred
Thousand Pesos (P200,000); and (3) attorneys
fees in the amount of Ten Thousand Pesos
(P10,000).45 On motion for reconsideration, the
Court of Appeals affirmed its earlier decision as
the argument raised in the motion had "been
amply discussed and passed upon in the
decision sought to be reconsidered."46
Thus, the instant petition for review. Hotel
Nikko and Ruby Lim contend that the Court of
Appeals seriously erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI
NON FIT INJURIA CONSIDERING THAT BY ITS
OWN FINDINGS, AMAY BISAYA WAS A GATECRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM
JOINTLY AND SEVERALLY LIABLE WITH DR.
FILART FOR DAMAGES SINCE BY ITS OWN
RULING, AMAY BISAYA "COULD NOT HAVE

SUFFERED SUCH HUMILIATION," "WERE IT NOT

FOR DR. FILARTS INVITATION"
III.
DEPARTING FROM THE FINDINGS OF FACT OF
THE
TRIAL COURT AS REGARDS
THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED
THE HUMILIATION OF AMAY BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS
TREATED UNJUSTLY BECAUSE OF HIS POVERTY,
CONSIDERING THAT THIS WAS NEVER AN ISSUE
AND NO EVIDENCE WAS PRESENTED IN THIS
REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE
DEFECTS OF THE APPELLANTS BRIEF, THEREBY
DEPARTING FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that
pursuant to the doctrine of volenti non fit
injuria, they cannot be made liable for
damages as respondent Reyes assumed the
risk of being asked to leave (and being
embarrassed and humiliated in the process) as
he was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which
a person assents is not esteemed in law as
injury"47 ) refers to self-inflicted injury 48 or to
the consent to injury49 which precludes the
recovery of damages by one who has
knowingly and voluntarily exposed himself to
danger, even if he is not negligent in doing
so.50 As formulated by petitioners, however,
this doctrine does not find application to the
case at bar because even if respondent Reyes

assumed the risk of being asked to leave the

party, petitioners, under Articles 19 and 21 of
the New Civil Code, were still under obligation
to treat him fairly in order not to expose him to
unnecessary ridicule and shame.
Thus, the threshold issue is whether or not
Ruby Lim acted abusively in asking Roberto
Reyes, a.k.a. "Amay Bisaya," to leave the party
where he was not invited by the celebrant
thereof thereby becoming liable under Articles
19 and 21 of the Civil Code. Parenthetically,
and if Ruby Lim were so liable, whether or not
Hotel Nikko, as her employer, is solidarily liable
with her.
As the trial court and the appellate court
reached
divergent
and
irreconcilable
conclusions concerning the same facts and
evidence of the case, this Court is left without
choice but to use its latent power to review
such findings of facts. Indeed, the general rule
is that we are not a trier of facts as our
jurisdiction is limited to reviewing and revising
errors of law.51 One of the exceptions to this
general rule, however, obtains herein as the
findings of the Court of Appeals are contrary to
those of the trial court.52 The lower court ruled
that Ms. Lim did not abuse her right to ask Mr.
Reyes to leave the party as she talked to him
politely and discreetly. The appellate court, on
the other hand, held that Ms. Lim is liable for
damages as she needlessly embarrassed Mr.
Reyes by telling him not to finish his food and
to leave the place within hearing distance of
the other guests. Both courts, however, were in
agreement that it was Dr. Filarts invitation that
brought Mr. Reyes to the party.
The consequential question then is: Which
version is credible?

From an in depth review of the evidence, we

find more credible the lower courts findings of
fact.
First, let us
perspective.

put

things

in

the

proper

We are dealing with a formal party in a posh,

five-star hotel,53 for-invitation-only, thrown for
the hotels former Manager, a Japanese
national. Then came a person who was clearly
uninvited (by the celebrant)54 and who could
not just disappear into the crowd as his face is
known by many, being an actor. While he was
already spotted by the organizer of the party,
Ms. Lim, the very person who generated the
guest list, it did not yet appear that the
celebrant was aware of his presence. Ms. Lim,
mindful of the celebrants instruction to keep
the party intimate, would naturally want to get
rid of the "gate-crasher" in the most hush-hush
manner in order not to call attention to a glitch
in an otherwise seamless affair and, in the
process, risk the displeasure of the celebrant,
her former boss. To unnecessarily call attention
to the presence of Mr. Reyes would certainly
reflect badly on Ms. Lims ability to follow the
instructions of the celebrant to invite only his
close friends and some of the hotels
personnel. Mr. Reyes, upon whom the burden
rests to prove that indeed Ms. Lim loudly and
rudely ordered him to leave, could not offer
any satisfactory explanation why Ms. Lim would
do that and risk ruining a formal and intimate
affair. On the contrary, Mr. Reyes, on crossexamination, had unwittingly sealed his fate by
admitting that when Ms. Lim talked to him, she
was very close. Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that
Miss Lim approached you while you
were at the buffet table? How close
was she when she approached you?

A: Very close because we nearly kissed

each other.
Q: And yet, she shouted for you to go
down? She was that close and she
shouted?
A: Yes. She said, "wag kang kumain,
hindi ka imbitado dito, bumaba ka na
lang."
Q: So, you are testifying that she did
this in a loud voice?
...
A: Yes. If it is not loud, it will not be
heard by many.55
In the absence of any proof of motive on the
part of Ms. Lim to humiliate Mr. Reyes and
expose him to ridicule and shame, it is highly
unlikely that she would shout at him from a
very close distance. Ms. Lim having been in the
hotel business for twenty years wherein being
polite and discreet are virtues to be emulated,
the testimony of Mr. Reyes that she acted to
the contrary does not inspire belief and is
indeed incredible. Thus, the lower court was
correct in observing that
Considering the closeness of defendant Lim to
plaintiff when the request for the latter to leave
the party was made such that they nearly
kissed each other, the request was meant to be
heard by him only and there could have been
no
intention
on
her
part
to
cause
embarrassment to him. It was plaintiffs
reaction to the request that must have made
the other guests aware of what transpired
between them. . .

Had plaintiff simply left the party as requested,

there was no need for the police to take him
out.56
Moreover, another problem with Mr. Reyess
version of the story is that it is unsupported. It
is a basic rule in civil cases that he who alleges
proves. Mr. Reyes, however, had not presented
any witness to back his story up. All his
witnesses Danny Rodinas, Pepito Guerrero
and Alexander Silva - proved only that it was
Dr. Filart who invited him to the party.57
Ms. Lim, not having abused her right to ask Mr.
Reyes to leave the party to which he was not
invited, cannot be made liable to pay for
damages under Articles 19 and 21 of the Civil
Code. Necessarily, neither can her employer,
Hotel Nikko, be held liable as its liability springs
from that of its employee.58
Article 19, known to contain what is commonly
referred to as the principle of abuse of
rights,59 is not a panacea for all human hurts
and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of
his rights and in the performance of his duties,
act with justice, give everyone his due, and
observe honesty and good faith.1awphi1.nt
Elsewhere, we explained that when "a right is
exercised in a manner which does not conform
with the norms enshrined in Article 19 and
results in damage to another, a legal wrong is
thereby committed for which the wrongdoer
must be responsible."60 The object of this
article, therefore, is to set certain standards
which must be observed not only in the
exercise of ones rights but also in the
performance of ones duties.61 These standards
are the following: act with justice, give
everyone his due and observe honesty and
good faith.62 Its antithesis, necessarily, is any

act evincing bad faith or intent to injure. Its

elements are the following: (1) There is a legal
right or duty; (2) which is exercised in bad
faith; (3) for the sole intent of prejudicing or
injuring another.63 When Article 19 is violated,
an action for damages is proper under Articles
20 or 21 of the Civil Code. Article 20 pertains to
damages arising from a violation of law 64 which
does not obtain herein as Ms. Lim was perfectly
within her right to ask Mr. Reyes to leave.
Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or
injury to another in a manner that is contrary
to morals, good customs or public policy shall
compensate the latter for the damage.
Article 2165 refers to acts contra bonus
mores and has the following elements: (1)
There is an act which is legal; (2) but which is
contrary to morals, good custom, public order,
or public policy; and (3) it is done with intent to
injure.66
A common theme runs through Articles 19 and
21,67 and that is, the act complained of must be
intentional.68
As applied to herein case and as earlier
discussed, Mr. Reyes has not shown that Ms.
Lim was driven by animosity against him.
These two people did not know each other
personally before the evening of 13 October
1994, thus, Mr. Reyes had nothing to offer for
an explanation for Ms. Lims alleged abusive
conduct except the statement that Ms. Lim,
being "single at 44 years old," had a "very
strong bias and prejudice against (Mr. Reyes)
possibly influenced by her associates in her
work
at
the
hotel
with
foreign
businessmen."69 The lameness of this argument
need not be belabored. Suffice it to say that a
complaint based on Articles 19 and 21 of the
Civil Code must necessarily fail if it has nothing

to
recommend
conjectures.

it

but

innuendos

and

Parenthetically, the manner by which Ms. Lim

asked Mr. Reyes to leave was likewise
acceptable
and
humane
under
the
circumstances. In this regard, we cannot put
our imprimatur on the appellate courts
declaration that Ms. Lims act of personally
approaching Mr. Reyes (without first verifying
from Mrs. Filart if indeed she invited Mr. Reyes)
gave rise to a cause of action "predicated upon
mere rudeness or lack of consideration of one
person, which calls not only protection of
human
dignity
but
respect
of
such
dignity."70 Without proof of any ill-motive on her
part, Ms. Lims act of by-passing Mrs. Filart
cannot amount to abusive conduct especially
because she did inquire from Mrs. Filarts
companion who told her that Mrs. Filart did not
invite Mr. Reyes.71 If at all, Ms. Lim is guilty only
of bad judgment which, if done with good
intentions, cannot amount to bad faith.
Not being liable for both actual and moral
damages, neither can petitioners Lim and Hotel
Nikko be made answerable for exemplary
damages72 especially for the reason stated by
the Court of Appeals. The Court of Appeals held

Not a few of the rich people treat the poor with

contempt because of the latters lowly station
in life.l^vvphi1.net This has to be limited
somewhere. In a democracy, such a limit must
be established. Social equality is not sought by
the legal provisions under consideration, but
due regard for decency and propriety (Code
Commission, pp. 33-34). And by way of
example or correction for public good and to
avert further commission of such acts,
exemplary damages should be imposed upon
appellees.73

The fundamental fallacy in the above-quoted

findings is that it runs counter with the very
facts of the case and the evidence on
hand.l^vvphi1.net It is not disputed that at the
time of the incident in question, Mr. Reyes was
"an actor of long standing; a co-host of a radio
program over DZRH; a Board Member of the
Music Singer Composer (MUSICO) chaired by
popular singer Imelda Papin; a showbiz
Coordinator of Citizen Crime Watch; and 1992
official candidate of the KBL Party for Governor
of Bohol; and an awardee of a number of
humanitarian
organizations
of
the
Philippines."74 During his direct examination on
rebuttal, Mr. Reyes stressed that he had
income75 and nowhere did he say otherwise. On
the other hand, the records are bereft of any
information as to the social and economic
standing of petitioner Ruby Lim. Consequently,
the conclusion reached by the appellate court
cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko
are concerned, any damage which Mr. Reyes
might have suffered through Ms. Lims exercise
of a legitimate right done within the bounds of
propriety and good faith, must be his to bear
alone.
WHEREFORE,
premises
considered,
the
petition filed by Ruby Lim and Nikko Hotel
Manila Garden is GRANTED. The Decision of the
Court of Appeals dated 26 November 2001 and
its Resolution dated 09 July 2002 are hereby
REVERSED and SET ASIDE. The Decision of the
Regional Trial Court of Quezon City, Branch
104, dated 26 April 1999 is hereby AFFIRMED.
No costs.
SO ORDERED.

G.R. No. L-53401 November 6, 1989

THE
ILOCOS
NORTE
ELECTRIC
COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First
Division) LILIAN JUAN LUIS, JANE JUAN
YABES, VIRGINIA JUAN CID, GLORIA JUAN
CARAG, and PURISIMA JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.

PARAS, J.:
Sought to be reversed in this petition is the
Decision * of the respondent Court of Appeals'
First Division, setting aside the judgment of the
then Court of First Instance (CFI) of Ilocos
Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby
set aside and another rendered in its stead
whereby defendant is hereby sentenced to pay
plaintiffs actual damages of P30,229.45;
compensatory
damages
of
P50,000.00;
exemplary damages of P10,000.00; attorney's
fees of P3,000.00; plus the costs of suit in both
instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence
whereby both patties strive for the recognition
of their respective versions of the scenario
from which the disputed claims originate. The
respondent Court of Appeals (CA) summarized
the evidence of the parties as follows:
From the evidence of plaintiffs it appears that
in the evening of June 28 until the early
morning of June 29, 1967 a strong typhoon by

the code name "Gening" buffeted the province

of Ilocos Norte, bringing heavy rains and
consequent flooding in its wake. Between 5:30
and 6:00 A.M. on June 29, 1967, after the
typhoon had abated and when the floodwaters
were beginning to recede the deceased Isabel
Lao Juan, fondly called Nana Belen, ventured
out of the house of her son-in-law, Antonio
Yabes, on No. 19 Guerrero Street, Laoag City,
and proceeded northward towards the direction
of the Five Sisters Emporium, of which she was
the owner and proprietress, to look after the
merchandise therein that might have been
damaged. Wading in waist-deep flood on
Guerrero, the deceased was followed by Aida
Bulong, a Salesgirl at the Five Sisters Grocery,
also owned by the deceased, and by Linda
Alonzo Estavillo, a ticket seller at the YJ
Cinema, which was partly owned by the
deceased. Aida and Linda walked side by side
at a distance of between 5 and 6 meters
behind the deceased, Suddenly, the deceased
screamed "Ay" and quickly sank into the water.
The two girls attempted to help, but fear
dissuaded them from doing so because on the
spot where the deceased sank they saw an
electric wire dangling from a post and moving
in snake-like fashion in the water. Upon their
shouts for help, Ernesto dela Cruz came out of
the house of Antonio Yabes. Ernesto tried to go
to the deceased, but at four meters away from
her he turned back shouting that the water was
grounded. Aida and Linda prodded Ernesto to
seek help from Antonio Yabes at the YJ Cinema
building which was four or five blocks away.
When Antonio Yabes was informed by Ernesto
that his mother-in law had been electrocuted,
he acted immediately. With his wife Jane,
together with Ernesto and one Joe Ros, Yabes
passed by the City Hall of Laoag to request the
police to ask the people of defendant Ilocos
Norte Electric Company or INELCO to cut off
the electric current. Then the party waded to

the house on Guerrero Street. The floodwater

was receding and the lights inside the house
were out indicating that the electric current
had been cut off in Guerrero. Yabes instructed
his boys to fish for the body of the deceased.
The body was recovered about two meters
from an electric post.
In another place, at about 4:00 A.M. on that
fateful date, June 29, 1967, Engineer Antonio
Juan, Power Plant Engineer of the National
Power Corporation at the Laoag Diesel-Electric
Plant, noticed certain fluctuations in their
electric
meter
which
indicated
such
abnormalities as grounded or short-circuited
lines. Between 6:00 and 6:30 A.M., he set out
of the Laoag NPC Compound on an inspection.
On the way, he saw grounded and
disconnected lines. Electric lines were hanging
from the posts to the ground. Since he could
not see any INELCO lineman, he decided to go
to the INELCO Office at the Life Theatre on
Rizal Street by way of Guerrero. As he turned
right at the intersection of Guerrero and Rizal,
he saw an electric wire about 30 meters long
strung across the street "and the other end
was seeming to play with the current of the
water." (p. 64, TSN, Oct. 24, 1972) Finding the
Office of the INELCO still closed, and seeing no
lineman therein, he returned to the NPC
Compound.
At about 8:10 A.M., Engr. Juan went out of the
compound again on another inspection trip.
Having learned of the death of Isabel Lao Juan,
he passed by the house of the deceased at the
corner of Guerrero and M.H. del Pilar streets to
which the body had been taken. Using the
resuscitator which was a standard equipment
in his jeep and employing the skill he acquired
from an in service training on resuscitation, he
tried to revive the deceased. His efforts proved
futile. Rigor mortis was setting in. On the left
palm of the deceased, Engr. Juan noticed a

hollow wound. Proceeding to the INELCO Office,

he met two linemen on the way. He told them
about the grounded lines of the INELCO In the
afternoon of the same day, he went on a third
inspection trip preparatory to the restoration of
power. The dangling wire he saw on Guerrero
early in the morning of June 29, 1967 was no
longer there
Many people came to the house at the corner
of Guerrero and M.H. del Pilar after learning
that the deceased had been electrocuted.
Among the sympathizers was Dr. Jovencio
Castro, Municipal Health Officer of Sarrat,
Ilocos Norte. Upon the request of the relatives
of the deceased, Dr. Castro examined the body
at about 8:00 A.M. on June 29, 1967. The skin
was grayish or, in medical parlance, cyanotic,
which indicated death by electrocution. On the
left palm, the doctor found an "electrically
charged wound" (Exh. C-1: p. 101, TSN, Nov.
28, 1972) or a first degree burn. About the
base of the thumb on the left hand was a
burned wound. (Exh. C-2, pp. 102-103, Ibid.)
The certificate of death prepared by Dr. Castro
stated the cause of' death as ,'circulatory
shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant
presented the testimonies of its officers and
employees, namely, Conrado Asis, electric
engineer; Loreto Abijero, collector-inspector;
Fabico Abijero, lineman; and Julio Agcaoili,
president-manager of INELCO Through the
testimonies of these witnesses, defendant
sought to prove that on and even before June
29, 1967 the electric service system of the
INELCO in the whole franchise area, including
Area No. 9 which covered the residence of
Antonio Yabes at No. 18 Guerrero Street, did
not suffer from any defect that might
constitute a hazard to life and property. The
service lines, devices and other INELCO
equipment in Area No. 9 had been newly-

installed prior to the date in question. As a

public service operator and in line with its
business of supplying electric current to the
public, defendant had installed safety devices
to prevent and avoid injuries to persons and
damage to property in case of natural
calamities such as floods, typhoons, fire and
others. Defendant had 12 linesmen charged
with the duty of making a round-the-clock
check-up of the areas respectively assigned to
them.
Defendant asserts that although a strong
typhoon struck the province of Ilocos Norte on
June 29, 1967, putting to streets of Laoag City
under water, only a few known places in Laoag
were reported to have suffered damaged
electric lines, namely, at the southern
approach of the Marcos Bridge which was
washed away and where the INELCO lines and
posts collapsed; in the eastern part near the
residence of the late Governor Simeon Mandac;
in the far north near the defendant's power
plant at the corner of Segundo and Castro
Streets, Laoag City and at the far northwest
side, near the premises of the Ilocos Norte
National High School. Fabico Abijero, testified
that in the early morning before 6 o'clock on
June 29, 1967 he passed by the intersection of
Rizal and Guerrero Streets to switch off the
street lights in Area No. 9. He did not see any
cut or broken wires in or near the vicinity. What
he saw were many people fishing out the body
of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones
was presented by the defense to show that the
deceased could not have died of electrocution
Substantially, the testimony of the doctor is as
follows: Without an autopsy on the cadaver of
the victim, no doctor, not even a medicolegal
expert, can speculate as to the real cause of
death. Cyanosis could not have been found in
the body of the deceased three hours after her

death, because cyanosis which means lack of

oxygen circulating in the blood and rendering
the color of the skin purplish, appears only in a
live person. The presence of the elongated
burn in the left palm of the deceased (Exhibits
C-1 and C-2) is not sufficient to establish her
death by electrocution; since burns caused by
electricity are more or less round in shape and
with points of entry and exit. Had the deceased
held the lethal wire for a long time, the
laceration in her palm would have been bigger
and the injury more massive. (CA Decision, pp.
18-21, Rollo)
An action for damages in the aggregate
amount of P250,000 was instituted by the heirs
of the deceased with the aforesaid CFI on June
24, 1968. In its Answer (Vide, Record on
Appeal, p. 55, Rollo), petitioner advanced the
theory, as a special defense, that the deceased
could have died simply either by drowning or
by electrocution due to negligence attributable
only to herself and not to petitioner. In this
regard, it was pointed out that the deceased,
without petitioner's knowledge, caused the
installation of a burglar deterrent by
connecting a wire from the main house to the
iron gate and fence of steel matting, thus,
charging the latter with electric current
whenever the switch is on. Petitioner then
conjectures that the switch to said burglar
deterrent must have been left on, hence,
causing the deceased's electrocution when she
tried to open her gate that early morning of
June 29, 1967. After due trial, the CFI found the
facts in favor of petitioner and dismissed the
complaint but awarded to the latter P25,000 in
moral damages and attorney's fees of P45,000.
An appeal was filed with the CA which issued
the controverted decision.
In this petition for review the petitioner assigns
the following errors committed by the
respondent CA:

1. The respondent Court of Appeals committed

grave abuse of discretion and error in
considering the purely hearsay alleged
declarations of Ernesto de la Cruz as part of
theres gestae.

electrocution; (2) whether or not petitioner

may be held liable for the deceased's death;
and (3) whether or not the respondent CA's
substitution of the trial court's factual findings
for its own was proper.

2. The respondent Court of Appeals committed

grave abuse of discretion and error in holding
that the strong typhoon "Gening" which struck
Laoag City and Ilocos Norte on June 29, 1967
and the flood and deluge it brought in its wake
were not fortuitous events and did not
exonerate petitioner-company from liability for
the death of Isabel Lao Juan.

In considering the first issue, it is Our view that

the same be resolved in the affirmative. By a
preponderance
of
evidence,
private
respondents were able to show that the
deceased died of electrocution, a conclusion
which can be primarily derived from the
photographed burnt wounds (Exhibits "C", "C1", "C-2") on the left palm of the former. Such
wounds undoubtedly point to the fact that the
deceased had clutched a live wire of the
petitioner. This was corroborated by the
testimony of Dr. Jovencio Castro who actually
examined the body of the deceased a few
hours after the death and described the said
burnt wounds as a "first degree burn" (p. 144,
TSN, December 11, 1972) and that they were
"electrically charged" (p. 102, TSN, November
28, 1972). Furthermore, witnesses Linda Alonzo
Estavillo and Aida Bulong added that after the
deceased screamed "Ay" and sank into the
water, they tried to render some help but were
overcome with fear by the sight of an electric
wire dangling from an electric post, moving in
the water in a snake-like fashion (supra). The
foregoing therefore justifies the respondent CA
in concluding that "(t)he nature of the wounds
as described by the witnesses who saw them
can lead to no other conclusion than that they
were "burns," and there was nothing else in the
street where the victim was wading thru which
could cause a burn except the dangling live
wire of defendant company" (CA Decision, p.
22, Rollo).

3. The respondent Court of Appeals gravely

abused its discretion and erred in not applying
the legal principle of "assumption of risk" in the
present case to bar private respondents from
collecting damages from petitioner company.
4. That the respondent Court of Appeals
gravely erred and abused its discretion in
completely reversing the findings of fact of the
trial court.
5. The findings of fact of the respondent Court
of Appeals are reversible under the recognized
exceptions.
6. The trial court did not err in awarding moral
damages and attorney's fees to defendant
corporation, now petitioner company.
7. Assuming arguendo that petitioner company
may be held liable from the death of the late
Isabel Lao Juan, the damages granted by
respondent Court of Appeals are improper and
exhorbitant. (Petitioners Memorandum, p. 133,
Rollo)
Basically, three main issues are apparent: (1)
whether or not the deceased died of

But in order to escape liability, petitioner

ventures into the theory that the deceased was
electrocuted, if such was really the case when
she tried to open her steel gate, which was

electrically charged by an electric wire she

herself caused to install to serve as a burglar
deterrent. Petitioner suggests that the switch
to said burglar alarm was left on. But this is
mere speculation, not backed up with
evidence. As required by the Rules, "each party
must prove his own affirmative allegations."
(Rule 131, Sec. 1). Nevertheless, the CA
significantly noted that "during the trial, this
theory was abandoned" by the petitioner (CA
Decision, p. 23, Rollo).
Furthermore the CA properly applied
principle of res gestae. The CA said:

the

Linda Alonzo Estavillo, a ticket seller, and Aida

Bulong, a salesgirl, were with the deceased
during that fateful morning of June 29, 1967.
This Court has not been offered any sufficient
reason to discredit the testimonies of these two
young ladies. They were one in the affirmation
that the deceased, while wading in the waistdeep flood on Guerrero Street five or six
meters ahead of them, suddenly screamed
"Ay" and quickly sank into the water. When
they approached the deceased to help, they
were stopped by the sight of an electric wire
dangling from a post and moving in snake-like
fashion in the water. Ernesto dela Cruz also
tried to approach the deceased, but he turned
back shouting that the water was grounded.
These bits of evidence carry much weight. For
the subject of the testimonies was a startling
occurrence, and the declarations may be
considered part of the res gestae. (CA Decision,
p. 21, Rollo)
For the admission of the res gestae in
evidence, the following requisites must be
present: (1) that the principal act, the res
gestae, be a startling occurrence; (2) that the
statements were made before the declarant
had time to contrive or devise; (3) that the
statements made must concern the occurrence

in question and its immediately attending

circumstances (People vs. Ner, 28 SCRA 1151;
People vs. Balbas, 122 SCRA 959). We do not
find any abuse of discretion on the CA' part in
view of the satisfaction of said requisites in the
case at bar.
The statements made relative to the startling
occurrence are admitted in evidence precisely
as an exception to the hearsay rule on the
grounds of trustworthiness and necessity.
"Trustworthiness" because the statements are
made instinctively (Wesley vs. State, 53 Ala.
182), and "necessity" because such natural
and
spontaneous
utterances
are
more
convincing than the testimony of the same
person on the stand (Mobile vs. Ascraft 48 Ala.
31). Therefore, the fact that the declarant,
Ernesto de la Cruz, was not presented to testify
does not make the testimony of Linda Alonzo
Estavillo and Aida Bulong hearsay since the
said declaration is part of the res gestae.
Similarly, We considered part of the res
gestae a conversation between two accused
immediately after commission of the crime as
overheard by a prosecution witness (People vs.
Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues
(vide petitioner's Memorandum, p. 135, Rollo),
Ernesto de la Cruz was not an actual witness to
the instant when the deceased sank into the
waist-deep water, he acted upon the call of
help of Aida Bulong and Linda Alonzo Estavillo
with the knowledge of, and immediately after,
the sinking of the deceased. In fact the
startling event had not yet ceased when
Ernesto de la Cruz entered the scene
considering
that
the
victim
remained
submerged. Under such a circumstance, it is
undeniable that a state of mind characterized
by nervous excitement had been triggered in
Ernesto de la Cruz's being as anybody under
the same contingency could have experienced.

As such, We cannot honestly exclude his shouts

that the water was grounded from the res
gestae just because he did not actually see the
sinking of the deceased nor hear her scream
"Ay."
Neither can We dismiss the said declaration as
a mere opinion of Ernesto de la Cruz. While We
concede to the submission that the statement
must be one of facts rather than opinion, We
cannot agree to the proposition that the one
made by him was a mere opinion. On the
contrary, his shout was a translation of an
actuality as perceived by him through his
sense of touch.
Finally, We do not agree that the taking of
Ernesto de la Cruz' testimony was suppressed
by the private respondents, thus, is presumed
to be adverse to them pursuant to Section 5(e),
Rule 131. For the application of said Rule as
against a party to a case, it is necessary that
the evidence alleged to be suppressed is
available only to said party (People vs. Tulale,
L-7233, 18 May 1955, 97 Phil. 953). The
presumption does not operate if the evidence
in question is equally available to both parties
(StaplesHowe Printing Co. vs. Bldg. and Loan
Assn., 36 Phil. 421). It is clear from the records
that petitioner could have called Ernesto de la
Cruz to the witness stand. This, precisely, was
Linda
Alonzo
Estavillo's
suggestion
to
petitioner's counsel when she testified on cross
examination:
Q. And that Erning de la Cruz, how far did he
reach from the gate of the house?
A. Well, you can ask that matter from him sir
because he is here. (TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the
opportunity to verify the declarations of
Ernesto de la Cruz which, if truly adverse to

private respondent, would have helped its

case. However, due to reasons known only to
petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the
scales in the private respondents' favor. The
respondent CA acted correctly in disposing the
argument that petitioner be exonerated from
liability since typhoons and floods are
fortuitous events. While it is true that typhoons
and floods are considered Acts of God for which
no person may be held responsible, it was not
said eventuality which directly caused the
victim's death. It was through the intervention
of petitioner's negligence that death took
place. We subscribe to the conclusions of the
respondent CA when it found:
On the issue whether or not the defendant
incurred liability for the electrocution and
consequent death of the late Isabel Lao Juan,
defendant called to the witness-stand its
electrical engineer, chief lineman, and lineman
to show exercise of extraordinary diligence and
to negate the charge of negligence. The
witnesses testified in a general way about their
duties
and
the
measures
which
defendant usually adopts to prevent hazards to
life and limb. From these testimonies, the lower
court found "that the electric lines and other
equipment of defendant corporation were
properly maintained by a well-trained team of
lineman, technicians and engineers working
around the clock to insure that these
equipments were in excellent condition at all
times." (P. 40, Record on Appeal) The finding of
the lower court, however, was based on what
the defendant's employees were supposed to
do, not on what they actually did or failed to
do on the date in question, and not on the
occasion of theemergency situation brought
about by the typhoon.

The lower court made a mistake in assuming

that defendant's employees worked around the
clock during the occurrence of the typhoon on
the night of June 28 and until the early morning
of June 29, 1967, Engr. Antonio Juan of the
National Power Corporation affirmed that when
he first set out on an inspection trip between
6:00 and 6:30 A.M. on June 29, 1967, he saw
grounded and disconnected electric lines of the
defendant but he saw no INELCO lineman. The
INELCO Office at the Life theatre on Rizal Street
was still closed. (pp. 63-64, TSN, Oct. 24, 1972)
Even the witnesses of defendant contradict the
finding of the lower court. Conrado Asis,
defendant's electrical engineer, testified that
he conducted a general inspection of the
franchise area of the INELCO only on June 30,
1967, the day following the typhoon. The
reason he gave for the delay was that all their
vehicles were submerged. (p. 337, TSN, July 20,
1973) According to Asis, he arrived at his office
at 8:00 A.M. onJune 30 and after briefing his
men on what to do they started out. (p.
338, lbid) One or two days after the typhoon,
the INELCO people heard "rumors that
someone was electrocuted" so he sent one of
his men to the place but his man reported back
that there was no damaged wire. (p. 385, Id.)
Loreto Abijero, chief lineman of defendant,
corroborated Engr. Juan. He testified that at
about 8:00 A.M. on June 29, 1967 Engr. Juan
came to the INELCO plant and asked the
INELCO people to inspect their lines. He went
with Engr. Juan and their inspection lasted from
8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN,
Jan. 28, 1975) Fabico Abijero lineman of
defendant, testified that at about 6:00 on June
29, 1967 the typhoon ceased. At that time, he
was at the main building of the Divine Word
College of Laoag where he had taken his family
for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which
occurred in Laoag City on the night of June 28

until the early hours of June 29, 1967,

extraordinary diligence requires a supplier
of electricity to be inconstant vigil to prevent or
avoid any probable incident that might imperil
life or limb. The evidence does not show that
defendant did that. On the contrary, evidence
discloses that there were no men (linemen or
otherwise) policing the area, nor even manning
its office. (CA Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case,
petitioner was negligent in seeing to it that no
harm is done to the general public"...
considering that electricity is an agency, subtle
and deadly, the measure of care required of
electric companies must be commensurate
with or proportionate to the danger. The duty
of exercising this high degree of diligence and
care extends to every place where persons
have a right to be" (Astudillo vs. Manila
Electric, 55 Phil. 427). The negligence of
petitioner having been shown, it may not now
absolve itself from liability by arguing that the
victim's death was solely due to a fortuitous
event. "When an act of God combines or
concurs with the negligence of the defendant
to produce an injury, the defendant is liable if
the injury would not have resulted but for his
own negligent conduct or omission" (38 Am.
Jur., p. 649).
Likewise, the maxim "volenti non fit injuria"
relied upon by petitioner finds no application in
the case at bar. It is imperative to note the
surrounding circumstances which impelled the
deceased to leave the comforts of a roof and
brave the subsiding typhoon. As testified by
Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept.
1972) and Aida Bulong (see TSN, p. 43, 26
Sept. 1972), the deceased, accompanied by
the former two, were on their way to the
latter's grocery store "to see to it that the
goods were not flooded." As such, shall We
punish her for exercising her right to protect

her property from the floods by imputing upon

her the unfavorable presumption that she
assumed the risk of personal injury? Definitely
not. For it has been held that a person is
excused from the force of the rule, that when
he voluntarily assents to a known danger he
must abide by the consequences, if an
emergency is found to exist or if the life or
property of another is in peril (65A C.S.C.
Negligence(174(5), p. 301), or when he seeks
to rescue his endangered property (Harper and
James, "The Law of Torts." Little, Brown and
Co., 1956, v. 2, p. 1167). Clearly, an emergency
was at hand as the deceased's property, a
source of her livelihood, was faced with an
impending loss. Furthermore, the deceased, at
the time the fatal incident occurred, was at a
place where she had a right to be without
regard to petitioner's consent as she was on
her way to protect her merchandise. Hence,
private respondents, as heirs, may not be
barred from recovering damages as a result of
the death caused by petitioner's negligence
(ibid., p. 1165, 1166).
But petitioner assails the CA for having abused
its discretion in completely reversing the trial
court's findings of fact, pointing to the
testimonies of three of its employees its
electrical
engineer,
collector-inspector,
lineman, and president-manager to the effect
that it had exercised the degree of diligence
required of it in keeping its electric lines free
from defects that may imperil life and limb.
Likewise, the said employees of petitioner
categorically disowned the fatal wires as they
appear in two photographs taken on the
afternoon of June 29, 1967 (Exhs. "D" and "E"),
suggesting that said wires were just hooked to
the electric post (petitioner's Memorandum, p.
170, Rollo). However, as the CA properly held,
"(t)he finding of the lower court ... was based
on what the defendant's employees were
supposed to do, not on what they actually did

or failed to do on the date in question, and not

on
the
occasion
of
the emergency
situation brought about by the typhoon" (CA
Decision, p. 25, Rollo). And as found by the CA,
which We have already reiterated above,
petitioner was in fact negligent. In a like
manner, petitioner's denial of ownership of the
several wires cannot stand the logical
conclusion reached by the CA when it held that
"(t)he nature of the wounds as described by
the witnesses who saw them can lead to no
other conclusion than that they were 'burns',
and there was nothing else in the street where
the victim was wading thru which could cause
a burn except the dangling live wire of
defendant company" (supra).
"When a storm occurs that is liable to prostrate
the wires, due care requires prompt efforts to
discover and repair broken lines" (Cooley on
Torts, 4th ed., v. 3, p. 474). The fact is that
when Engineer Antonio Juan of the National
Power Corporation set out in the early morning
of June 29, 1967 on an inspection tour, he saw
grounded and disconnected lines hanging from
posts to the ground but did not see any INELCO
lineman either in the streets or at the INELCO
office (vide, CA Decision, supra). The foregoing
shows that petitioner's duty to exercise
extraordinary diligence under the circumstance
was not observed, confirming the negligence of
petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag
were already alerted about the impending
typhoon, through radio announcements. Even
the fire department of the city announced the
coming of the big flood. (pp. 532-534, TSN,
March 13, 1975) At the INELCO irregularities in
the flow of electric current were noted because
"amperes of the switch volts were moving".
And yet, despite these danger signals, INELCO
had to wait for Engr. Juan to request that
defendant's switch be cut off but the harm was

done. Asked why the delay, Loreto Abijero

answered that he "was not the machine tender
of the electric plant to switch off the current."
(pp. 467-468, Ibid.) How very characteristic of
gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not
abuse its discretion in reversing the trial court's
findings but tediously considered the factual
circumstances at hand pursuant to its power to
review questions of fact raised from the
decision of the Regional Trial Court, formerly
the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the
respondent CA awarded the following in private
respondent's favor: P30,229.45 in actual
damages (i.e., P12,000 for the victim's death
and P18,229.45 for funeral expenses); P50,000
in compensatory damages, computed in
accordance with the formula set in the VillaRey Transit case (31 SCRA 511) with the base
of P15,000 as average annual income of the
deceased; P10,000 in exemplary damages;
P3,000 attorney's fees; and costs of suit.
Except for the award of P12,000 as
compensation for the victim's death, We affirm
the respondent CA's award for damages and
attorney's
fees.
Pusuant
to
recent
jurisprudence (People vs. Mananquil, 132 SCRA
196; People vs. Traya, 147 SCRA 381), We
increase the said award of P12,000 to P30,000,
thus, increasing the total actual damages to
P48,229.45.
The exclusion of moral damages and attorney's
fees awarded by the lower court was properly
made by the respondent CA, the charge of
malice and bad faith on the part of respondents
in instituting his case being a mere product of
wishful thinking and speculation. Award of
damages and attorney's fees is unwarranted
where the action was filed in good faith; there
should be no penalty on the right to litigate

(Espiritu vs. CA, 137 SCRA 50). If damage

results from a person's exercising his legal
rights, it is damnum absque injuria (Auyong
Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the
respondent, except for the slight modification
that actual damages be increased to
P48,229.45 is hereby AFFIRMED.
SO ORDERED.

G.R. No. 122039 May 31, 2000

VICENTE
CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE
SUNGA
and
FRANCISCO
SALVA, respondents.

MENDOZA, J.:
This is a petition for review on certiorari of the
decision1 of the Court of Appeals, dated March
31, 1991, reversing the contrary decision of the
Regional Trial Court, Branch 36, Dumaguete
City, and awarding damages instead to private
respondent Eliza Jujeurche Sunga as plaintiff in
an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are
as follows:
At 10 o'clock in the morning of August 23,
1989, private respondent Eliza Jujeurche G.
Sunga, then a college freshman majoring in
Physical Education at the Siliman University,
took a passenger jeepney owned and operated
by petitioner Vicente Calalas. As the jeepney
was filled to capacity of about 24 passengers,
Sunga was given by the conductor an
"extension seat," a wooden stool at the back of
the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros
Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of
the vehicle, Sunga gave way to the outgoing
passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of
the jeepney. As a result, Sunga was injured.
She sustained a fracture of the "distal third of
the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the
fracture, long leg circular casting, and case

wedging were done under sedation. Her

confinement in the hospital lasted from August
23 to September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an orthopedic
surgeon, certified she would remain on a cast
for a period of three months and would have to
ambulate in crutches during said period.

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.

On October 9, 1989, Sunga filed a complaint

for damages against Calalas, alleging violation
of the contract of carriage by the former in
failing to exercise the diligence required of him
as a common carrier. Calalas, on the other
hand, filed a third-party complaint against
Francisco Salva, the owner of the Isuzu truck.
The lower court rendered judgment against
Salva as third-party defendant and absolved
Calalas of liability, holding that it was the driver
of the Isuzu truck who was responsible for the
accident. It took cognizance of another case
(Civil Case No. 3490), filed by Calalas against
Salva and Verena, for quasi-delict, in which
Branch 37 of the same court held Salva and his
driver Verena jointly liable to Calalas for the
damage to his jeepney.
On appeal to the Court of Appeals, the ruling of
the lower court was reversed on the ground
that Sunga's cause of action was based on a
contract of carriage, not quasi-delict, and that
the common carrier failed to exercise the
diligence required under the Civil Code. The
appellate court dismissed the third-party
complaint against Salva and adjudged Calalas
liable for damages to Sunga. The dispositive
portion of its decision reads:
WHEREFORE, the decision appealed from is
hereby REVERSED and SET ASIDE, and another
one is entered ordering defendant-appellee
Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory
damages;
(2) P50,000.00 as moral damages;

Hence, this petition. Petitioner contends that

the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause
of the accident negates his liability and that to
rule otherwise would be to make the common
carrier an insurer of the safety of its
passengers. He contends that the bumping of
the jeepney by the truck owned by Salva was
a caso fortuito. Petitioner further assails the
award of moral damages to Sunga on the
ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the
ruling in Civil Case No. 3490 finding the driver
and the owner of the truck liable for quasidelict ignores the fact that she was never a
party to that case and, therefore, the principle
ofres judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in
the present case the same. The issue in Civil
Case No. 3490 was whether Salva and his
driver Verena were liable for quasi-delict for the
damage caused to petitioner's jeepney. On the
other hand, the issue in this case is whether
petitioner is liable on his contract of carriage.
The first, quasi-delict, also known as culpa
aquiliana or culpa extra contractual, has as its
source the negligence of the tortfeasor.
The second, breach of contract or culpa
contractual, is premised upon the negligence in
the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or
fault should be clearly established because it is
the basis of the action, whereas in breach of
contract, the action can be prosecuted merely

by proving the existence of the contract and

the fact that the obligor, in this case the
common carrier, failed to transport his
passenger safely to his destination. 2 In case of
death or injuries to passengers, Art. 1756 of
the Civil Code provides that common carriers
are presumed to have been at fault or to have
acted negligently unless they prove that they
observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision
necessarily shifts to the common carrier the
burden of proof.
There is, thus, no basis for the contention that
the ruling in Civil Case No. 3490, finding Salva
and his driver Verena liable for the damage to
petitioner's jeepney, should be binding on
Sunga. It is immaterial that the proximate
cause of the collision between the jeepney and
the truck was the negligence of the truck
driver. The doctrine of proximate cause is
applicable only in actions for quasi-delict, not
in actions involving breach of contract. The
doctrine is a device for imputing liability to a
person where there is no relation between him
and another party. In such a case, the
obligation is created by law itself. But, where
there is a pre-existing contractual relation
between the parties, it is the parties
themselves who create the obligation, and the
function of the law is merely to regulate the
relation thus created. Insofar as contracts of
carriage
are
concerned,
some
aspects
regulated by the Civil Code are those
respecting the diligence required of common
carriers with regard to the safety of passengers
as well as the presumption of negligence in
cases of death or injury to passengers. It
provides:
Art. 1733. Common carriers, from the nature of
their business and for reasons of public policy,
are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety
of the passengers transported by them,
according to all the circumstances of each
case.
Such extraordinary diligence in the vigilance
over the goods is further expressed in articles

1734, 1735, and 1746, Nos. 5, 6, and 7, while

the extraordinary diligence for the safety of the
passengers is further set forth in articles 1755
and 1756.

Second, it is undisputed that petitioner's driver

took in more passengers than the allowed
seating capacity of the jeepney, a violation of
32(a) of the same law. It provides:

Art. 1755. A common carrier is bound to carry

the passengers safely as far as human care
and foresight can provide, using the utmost
diligence of very cautious persons, with due
regard for all the circumstances.

Exceeding registered capacity. No person

operating any motor vehicle shall allow more
passengers or more freight or cargo in his
vehicle than its registered capacity.

Art. 1756. In case of death of or injuries to

passengers, common carriers are presumed to
have been at fault or to have acted negligently,
unless they prove that they observed
extraordinary diligence as prescribed by
articles 1733 and 1755.
In the case at bar, upon the happening of the
accident, the presumption of negligence at
once arose, and it became the duty of
petitioner to prove that he had to observe
extraordinary diligence in the care of his
passengers.
Now, did the driver of jeepney carry Sunga
"safely as far as human care and foresight
could provide, using the utmost diligence of
very cautious persons, with due regard for all
the circumstances" as required by Art. 1755?
We do not think so. Several factors militate
against petitioner's contention.
First, as found by the Court of Appeals, the
jeepney was not properly parked, its rear
portion being exposed about two meters from
the broad shoulders of the highway, and facing
the middle of the highway in a diagonal angle.
This is a violation of the R.A. No. 4136, as
amended, or the Land Transportation and
Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. No person
shall drive his motor vehicle in such a manner
as to obstruct or impede the passage of any
vehicle, nor, while discharging or taking on
passengers or loading or unloading freight,
obstruct the free passage of other vehicles on
the highway.

The fact that Sunga was seated in an

"extension seat" placed her in a peril greater
than that to which the other passengers were
exposed. Therefore, not only was petitioner
unable to overcome the presumption of
negligence imposed on him for the injury
sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting
passengers.
We find it hard to give serious thought to
petitioner's contention that Sunga's taking an
"extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the
injuries to the many victims of the tragedies in
our seas should not be compensated merely
because those passengers assumed a greater
risk of drowning by boarding an overloaded
ferry. This is also true of petitioner's contention
that the jeepney being bumped while it was
improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was
inevitable.3 This requires that the following
requirements be present: (a) the cause of the
breach is independent of the debtor's will; (b)
the event is unforeseeable or unavoidable; (c)
the event is such as to render it impossible for
the debtor to fulfill his obligation in a normal
manner, and (d) the debtor did not take part in
causing
the
injury
to
the
creditor.4 Petitioner should have foreseen the
danger of parking his jeepney with its body
protruding two meters into the highway.
Finally, petitioner challenges the award of
moral damages alleging that it is excessive and
without basis in law. We find this contention
well taken.

In awarding moral damages, the Court of

Appeals stated:
Plaintiff-appellant at the time of the accident
was a first-year college student in that school
year 1989-1990 at the Silliman University,
majoring in Physical Education. Because of the
injury, she was not able to enroll in the second
semester of that school year. She testified that
she had no more intention of continuing with
her schooling, because she could not walk and
decided not to pursue her degree, major in
Physical Education "because of my leg which
has a defect already."
Plaintiff-appellant likewise testified that even
while she was under confinement, she cried in
pain because of her injured left foot. As a result
of her injury, the Orthopedic Surgeon also
certified that she has "residual bowing of the
fracture side." She likewise decided not to
further pursue Physical Education as her major
subject, because "my left leg . . . has a defect
already."
Those are her physical pains and moral
sufferings, the inevitable bedfellows of the
injuries that she suffered. Under Article 2219 of
the Civil Code, she is entitled to recover moral
damages in the sum of P50,000.00, which is
fair, just and reasonable.
As a general rule, moral damages are not
recoverable in actions for damages predicated
on a breach of contract for it is not one of the
items enumerated under Art. 2219 of the Civil
Code.5 As an exception, such damages are
recoverable: (1) in cases in which the mishap
results in the death of a passenger, as provided
in Art. 1764, in relation to Art. 2206(3) of the
Civil Code; and (2) in the cases in which the
carrier is guilty of fraud or bad faith, as
provided in Art. 2220.6
In this case, there is no legal basis for awarding
moral damages since there was no factual
finding by the appellate court that petitioner
acted in bad faith in the performance of the
contract of carriage. Sunga's contention that

petitioner's admission in open court that the

driver of the jeepney failed to assist her in
going to a nearby hospital cannot be construed
as an admission of bad faith. The fact that it
was the driver of the Isuzu truck who took her
to the hospital does not imply that petitioner
was utterly indifferent to the plight of his
injured passenger. If at all, it is merely implied
recognition by Verena that he was the one at
fault for the accident.
WHEREFORE, the decision of the Court of
Appeals, dated March 31, 1995, and its
resolution, dated September 11, 1995, are
AFFIRMED, with the MODIFICATION that the
award of moral damages is DELETED.
SO ORDERED.

G.R. No. 138060

2004

September 1,

WILLIAM TIU, doing business under the

name and style of "D Rough Riders," and
VIRGILIO
TE
LAS
PIAS petitioners,
vs.
PEDRO
A.
ARRIESGADO,
BENJAMIN
CONDOR,
SERGIO
PEDRANO
and
PHILIPPINE
PHOENIX
SURETY
AND
INSURANCE, INC., respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under
Rule 45 of the Rules of Court from the
Decision1 of the Court of Appeals in CA-G.R. CV
No. 54354 affirming with modification the
Decision2 of the Regional Trial Court, 7th
Judicial Region, Cebu City, Branch 20, in Civil
Case No. CEB-5963 for breach of contract of
carriage, damages and attorneys fees, and the
Resolution dated February 26, 1999 denying
the motion for reconsideration thereof.
The following facts are undisputed:
At about 10:00 p.m. of March 15, 1987, the
cargo truck marked "Condor Hollow Blocks and
General Merchandise" bearing plate number
GBP-675 was loaded with firewood in Bogo,
Cebu and left for Cebu City. Upon reaching Sitio
Aggies, Poblacion, Compostela, Cebu, just as
the truck passed over a bridge, one of its rear
tires exploded. The driver, Sergio Pedrano, then
parked along the right side of the national
highway and removed the damaged tire to
have it vulcanized at a nearby shop, about 700
meters away.3Pedrano left his helper, Jose
Mitante, Jr. to keep watch over the stalled
vehicle, and instructed the latter to place a
spare tire six fathoms away4 behind the stalled
truck to serve as a warning for oncoming
vehicles. The trucks tail lights were also left
on. It was about 12:00 a.m., March 16, 1987.

At about 4:45 a.m., D Rough Riders passenger

bus with plate number PBP-724 driven by
Virgilio Te Laspias was cruising along the
national highway of Sitio Aggies, Poblacion,
Compostela, Cebu. The passenger bus was also
bound for Cebu City, and had come from Maya,
Daanbantayan, Cebu. Among its passengers
were the Spouses Pedro A. Arriesgado and
Felisa Pepito Arriesgado, who were seated at
the right side of the bus, about three (3) or four
(4) places from the front seat.

6. That the accident resulted to the death of

the plaintiffs wife, Felisa Pepito Arriesgado, as
evidenced by a Certificate of Death, a xerox
copy of which is hereto attached as integral
part hereof and marked as ANNEX "A", and
physical injuries to several of its passengers,
including plaintiff himself who suffered a
"COLLES FRACTURE RIGHT," per Medical
Certificate, a xerox copy of which is hereto
attached as integral part hereof and marked as
ANNEX "B" hereof.

As the bus was approaching the bridge,

Laspias saw the stalled truck, which was then
about 25 meters away.5He applied the breaks
and tried to swerve to the left to avoid hitting
the truck. But it was too late; the bus rammed
into the trucks left rear. The impact damaged
the right side of the bus and left several
passengers injured. Pedro Arriesgado lost
consciousness and suffered a fracture in his
right colles.6 His wife, Felisa, was brought to
the Danao City Hospital. She was later
transferred to the Southern Island Medical
Center where she died shortly thereafter.7

7. That due to the reckless and imprudent

driving by defendant Virgilio Te Laspias of the
said Rough Riders passenger bus, plaintiff and
his wife, Felisa Pepito Arriesgado, failed to
safely reach their destination which was Cebu
City, the proximate cause of which was
defendant-drivers failure to observe utmost
diligence required of a very cautious person
under all circumstances.

Respondent Pedro A. Arriesgado then filed a

complaint for breach of contract of carriage,
damages and attorneys fees before the
Regional Trial Court of Cebu City, Branch 20,
against the petitioners, D Rough Riders bus
operator William Tiu and his driver, Virgilio Te
Laspias on May 27, 1987. The respondent
alleged that the passenger bus in question was
cruising at a fast and high speed along the
national road, and that petitioner Laspias did
not take precautionary measures to avoid the
accident.8 Thus:

8. That defendant William Tiu, being the owner

and operator of the said Rough Riders
passenger bus which figured in the said
accident, wherein plaintiff and his wife were
riding at the time of the accident, is therefore
directly liable for the breach of contract of
carriage for his failure to transport plaintiff and
his wife safely to their place of destination
which was Cebu City, and which failure in his
obligation to transport safely his passengers
was due to and in consequence of his failure to
exercise the diligence of a good father of the
family in the selection and supervision of his
employees,
particularly
defendant-driver
Virgilio Te Laspias.9
The respondent prayed that judgment be
rendered in his favor and that the petitioners
be condemned to pay the following damages:
1). To pay to plaintiff, jointly and severally, the
amount of P30,000.00 for the death and
untimely demise of plaintiffs wife, Felisa Pepito
Arriesgado;

2). To pay to plaintiff, jointly and severally, the

amount of P38,441.50, representing actual
expenses incurred by the plaintiff in connection
with the death/burial of plaintiffs wife;
3). To pay to plaintiff, jointly and severally, the
amount
of P1,113.80,
representing
medical/hospitalization expenses incurred by
plaintiff for the injuries sustained by him;
4). To pay to plaintiff, jointly and severally, the
amount of P50,000.00 for moral damages;
5). To pay to plaintiff, jointly and severally, the
amount of P50,000.00 by way of exemplary
damages;
6). To pay to plaintiff, jointly and severally, the
amount of P20,000.00 for attorneys fees;
7). To pay to plaintiff, jointly and severally, the
amount of P5,000.00 for litigation expenses.
PLAINTIFF FURTHER PRAYS FOR SUCH OTHER
RELIEFS AND REMEDIES IN LAW AND EQUITY. 10
The petitioners, for their part, filed a ThirdParty Complaint11 on August 21, 1987 against
the following: respondent Philippine Phoenix
Surety and Insurance, Inc. (PPSII), petitioner
Tius insurer; respondent Benjamin Condor, the
registered owner of the cargo truck; and
respondent Sergio Pedrano, the driver of the
truck. They alleged that petitioner Laspias
was negotiating the uphill climb along the
national highway of Sitio Aggies, Poblacion,
Compostela, in a moderate and normal speed.
It was further alleged that the truck was parked
in a slanted manner, its rear portion almost in
the middle of the highway, and that no early
warning device was displayed. Petitioner
Laspias promptly applied the brakes and
swerved to the left to avoid hitting the truck
head-on, but despite his efforts to avoid
damage to property and physical injuries on
the passengers, the right side portion of the
bus hit the cargo trucks left rear. The
petitioners further alleged, thus:

5. That the cargo truck mentioned in the

aforequoted paragraph is owned and registered
in the name of the third-party defendant
Benjamin Condor and was left unattended by
its driver Sergio Pedrano, one of the third-party
defendants, at the time of the incident;
6. That third-party defendant Sergio Pedrano,
as driver of the cargo truck with marked (sic)
"Condor
Hollow
Blocks
&
General
Merchandise," with Plate No. GBP-675 which
was recklessly and imprudently parked along
the national highway of Compostela, Cebu
during the vehicular accident in question, and
third-party defendant Benjamin Condor, as the
registered owner of the cargo truck who failed
to exercise due diligence in the selection and
supervision of third-party defendant Sergio
Pedrano, are jointly and severally liable to the
third-party plaintiffs for whatever liability that
may be adjudged against said third-party
plaintiffs or are directly liable of (sic) the
alleged death of plaintiffs wife;
7. That in addition to all that are stated above
and in the answer which are intended to show
reckless imprudence on the part of the thirdparty defendants, the third-party plaintiffs
hereby declare that during the vehicular
accident in question, third-party defendant was
clearly violating Section 34, par. (g) of the Land
Transportation and Traffic Code

11. That after the aforesaid alleged incident,

third-party
plaintiff
notified
third-party
defendant Philippine Phoenix Surety and
Insurance, Inc., of the alleged incident hereto
mentioned, but to no avail;
12. That granting, et arguendo et arguendi, if
herein third-party plaintiffs will be adversely
adjudged, they stand to pay damages sought
by the plaintiff and therefore could also look up
to the Philippine Phoenix Surety and Insurance,
Inc., for contribution, indemnification and/or
reimbursement of any liability or obligation
that they might [be] adjudged per insurance
coverage duly entered into by and between
third-party plaintiff William Tiu and third-party
defendant Philippine Phoenix Surety and
Insurance, Inc.;12
The respondent PPSII, for its part, admitted
that it had an existing contract with petitioner
Tiu, but averred that it had already attended to
and settled the claims of those who were
injured during the incident.13 It could not
accede to the claim of respondent Arriesgado,
as such claim was way beyond the scheduled
indemnity as contained in the contract of
insurance.14
After the parties presented their respective
evidence, the trial court ruled in favor of
respondent Arriesgado. The dispositive portion
of the decision reads:

10. That the aforesaid passenger bus, owned

and operated by third-party plaintiff William
Tiu, is covered by a common carrier liability
insurance with Certificate of Cover No. 054940
issued by Philippine Phoenix Surety and
Insurance, Inc., Cebu City Branch, in favor of
third-party plaintiff William Tiu which covers
the period from July 22, 1986 to July 22, 1987
and that the said insurance coverage was
valid, binding and subsisting during the time of
the aforementioned incident (Annex "A" as part
hereof);

WHEREFORE, in view of the foregoing,

judgment is hereby rendered in favor of
plaintiff as against defendant William Tiu
ordering the latter to pay the plaintiff the
following amounts:
1 - The sum of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages;
2 - The sum of FIFTY THOUSAND PESOS
(P50,000.00) as exemplary damages;
3 - The sum of THIRTY-EIGHT THOUSAND FOUR
HUNDRED FORTY-ONE PESOS (P38,441.00) as
actual damages;

4 - The sum of TWENTY THOUSAND PESOS

(P20,000.00) as attorneys fees;
5 - The sum of FIVE THOUSAND PESOS
(P5,000.00) as costs of suit;
SO ORDERED.15
According to the trial court, there was no
dispute that petitioner William Tiu was engaged
in business as a common carrier, in view of his
admission that D Rough Rider passenger bus
which figured in the accident was owned by
him; that he had been engaged in the
transportation business for 25 years with a sole
proprietorship; and that he owned 34 buses.
The trial court ruled that if petitioner Laspias
had not been driving at a fast pace, he could
have easily swerved to the left to avoid hitting
the truck, thus, averting the unfortunate
incident. It then concluded that petitioner
Laspias was negligent.
The trial court also ruled that the absence of an
early warning device near the place where the
truck was parked was not sufficient to impute
negligence on the part of respondent Pedrano,
since the tail lights of the truck were fully on,
and the vicinity was well lighted by street
lamps.16 It also found that the testimony of
petitioner Tiu, that he based the selection of
his driver Laspias on efficiency and in-service
training, and that the latter had been so far an
efficient and good driver for the past six years
of his employment, was insufficient to prove
that he observed the diligence of a good father
of a family in the selection and supervision of
his employees.
After the petitioners motion for reconsideration
of the said decision was denied, the petitioners
elevated the case to the Court of Appeals on
the following issues:
I WHETHER THIRD PARTY DEFENDANT SERGIO
PEDRANO WAS RECKLESS AND IMPRUDENT
WHEN HE PARKED THE CARGO TRUCK IN AN
OBLIQUE MANNER;

II WHETHER THE THIRD PARTY DEFENDANTS

ARE JOINTLY AND SEVERALLY LIABLE DIRECTLY
TO PLAINTIFF-APPELLEE OR TO DEFENDANTSAPPELLANTS FOR WHATEVER LIABILITY THAT
MAY BE ADJUDGED TO THE SAID DEFENDANTSAPPELLANTS;
III WHETHER DEFENDANT-APPELLANT VIRGILIO
TE LASPIAS WAS GUILTY OF GROSS
NEGLIGENCE;
IV WHETHER DEFENDANT-APPELLANT WILLIAM
TIU HAD EXERCISED THE DUE DILIGENCE OF A
GOOD FATHER OF A FAMILY IN THE SELECTION
AND SUPERVISION OF HIS DRIVERS;

a common carrier, it was incumbent upon

petitioner Tiu to prove that extraordinary
diligence was observed in ensuring the safety
of passengers during transportation. Since the
latter failed to do so, he should be held liable
for respondent Arriesgados claim. The CA also
ruled that no evidence was presented against
the respondent PPSII, and as such, it could not
be held liable for respondent Arriesgados
claim, nor for contribution, indemnification
and/or reimbursement in case the petitioners
were adjudged liable.
The petitioners now come to this Court and
ascribe the following errors committed by the
appellate court:

V GRANTING FOR THE SAKE OF ARGUMENT

THAT DEFENDANT-APPELLANT WILLIAM TIU IS
LIABLE TO PLAINTIFF-APPELLEE, WHETHER
THERE IS LEGAL AND FACTUAL BASIS IN
AWARDING EXCESSIVE MORAL DAMAGES,
EX[E]MPLARY DAMAGES, ATTORNEYS FEES
AND LITIGATION EXPENSES TO PLAINTIFFAPPELLEE;

I. THE HONORABLE COURT OF APPEALS ERRED

IN NOT DECLARING RESPONDENTS BENJAMIN
CONDOR AND SERGIO PEDRANO GUILTY OF
NEGLIGENCE
AND
HENCE,
LIABLE
TO
RESPONDENT PEDRO A. ARRIESGADO OR TO
PETITIONERS FOR WHATEVER LIABILITY THAT
MAY BE ADJUDGED AGAINST THEM.

VI WHETHER THIRD PARTY DEFENDANT

PHILIPPINE PHOENIX SURETY AND INSURANCE,
INC. IS LIABLE TO DEFENDANT- APPELLANT
WILLIAM TIU.17

II. THE HONORABLE COURT OF APPEALS ERRED

IN
FINDING
PETITIONERS
GUILTY
OF
NEGLIGENCE
AND
HENCE,
LIABLE
TO
RESPONDENT PEDRO A. ARRIESGADO.

The appellate court rendered judgment

affirming the trial courts decision with the
modification that the awards for moral and
exemplary damages were reduced to P25,000.
The dispositive portion reads:

III. THE HONORABLE COURT OF APPEALS

ERRED IN FINDING PETITIONER WILLIAM TIU
LIABLE
FOR
EXEMPLARY
DAMAGES,
ATTORNEYS FEES AND LITIGATION EXPENSES.

WHEREFORE, the appealed Decision dated

November 6, 1995 is hereby MODIFIED such
that the awards for moral and exemplary
damages are each reduced to P25,000.00 or a
total of P50,000.00 for both. The judgment is
AFFIRMED in all other respects.
SO ORDERED.18
According to the appellate court, the action of
respondent Arriesgado was based not on quasidelict but on breach of contract of carriage. As

IV. THE HONORABLE COURT OF APPEALS ERRED

IN NOT FINDING RESPONDENT PHILIPPINE
PHOENIX SURETY AND INSURANCE, INC. LIABLE
TO RESPONDENT PEDRO A. ARRIESGADO OR
TO PETITIONER WILLIAM TIU.19
According to the petitioners, the appellate
court erred in failing to appreciate the absence
of an early warning device and/or built-in
reflectors at the front and back of the cargo
truck, in clear violation of Section 34, par. (g) of
the Land Transportation and Traffic Code. They
aver that such violation is only a proof of
respondent Pedranos negligence, as provided

under Article 2185 of the New Civil Code. They

also question the appellate courts failure to
take into account that the truck was parked in
an oblique manner, its rear portion almost at
the center of the road. As such, the proximate
cause of the incident was the gross
recklessness and imprudence of respondent
Pedrano,
creating
the
presumption
of
negligence on the part of respondent Condor in
supervising his employees, which presumption
was not rebutted. The petitioners then contend
that respondents Condor and Pedrano should
be held jointly and severally liable to
respondent Arriesgado for the payment of the
latters claim.
The petitioners, likewise, aver that expert
evidence should have been presented to prove
that petitioner Laspias was driving at a very
fast speed, and that the CA could not reach
such conclusion by merely considering the
damages on the cargo truck. It was also
pointed out that petitioner Tiu presented
evidence that he had exercised the diligence of
a good father of a family in the selection and
supervision of his drivers.
The petitioners further allege that there is no
legal and factual basis to require petitioner Tiu
to pay exemplary damages as no evidence was
presented to show that the latter acted in a
fraudulent, reckless and oppressive manner, or
that he had an active participation in the
negligent act of petitioner Laspias.
Finally, the petitioners contend that respondent
PPSII admitted in its answer that while it had
attended to and settled the claims of the other
injured passengers, respondent Arriesgados
claim remained unsettled as it was beyond the
scheduled indemnity under the insurance
contract. The petitioners argue that said
respondent PPSII should have settled the said
claim in accordance with the scheduled
indemnity instead of just denying the same.
On the other hand, respondent Arriesgado
argues that two of the issues raised by the
petitioners involved questions of fact, not
reviewable by the Supreme Court: the finding

of negligence on the part of the petitioners and

their liability to him; and the award of
exemplary damages, attorneys fees and
litigation expenses in his favor. Invoking the
principle of equity and justice, respondent
Arriesgado pointed out that if there was an
error to be reviewed in the CA decision, it
should be geared towards the restoration of the
moral and exemplary damages toP50,000
each, or a total of P100,000 which was reduced
by the Court of Appeals to P25,000 each, or a
total of only P50,000.
Respondent Arriesgado also alleged that
respondents
Condor
and
Pedrano,
and
respondent Phoenix Surety, are parties with
whom he had no contract of carriage, and had
no cause of action against. It was pointed out
that only the petitioners needed to be sued, as
driver and operator of the ill-fated bus, on
account of their failure to bring the Arriesgado
Spouses to their place of destination as agreed
upon in the contract of carriage, using the
utmost diligence of very cautious persons with
due regard for all circumstances.
Respondents Condor and Pedrano point out
that, as correctly ruled by the Court of Appeals,
the proximate cause of the unfortunate
incident was the fast speed at which petitioner
Laspias was driving the bus owned by
petitioner Tiu. According to the respondents,
the allegation that the truck was not equipped
with an early warning device could not in any
way have prevented the incident from
happening. It was also pointed out that
respondent Condor had always exercised the
due diligence required in the selection and
supervision of his employees, and that he was
not a party to the contract of carriage between
the petitioners and respondent Arriesgado.
Respondent PPSII, for its part, alleges that
contrary to the allegation of petitioner Tiu, it
settled all the claims of those injured in
accordance with the insurance contract. It
further avers that it did not deny respondent
Arriesgados claim, and emphasizes that its
liability should be within the scheduled limits of
indemnity under the said contract. The

respondent concludes that while it is true that

insurance contracts are contracts of indemnity,
the measure of the insurers liability is
determined by the insureds compliance with
the terms thereof.
The Courts Ruling
At the outset, it must be stressed that this
Court is not a trier of facts.20 Factual findings of
the Court of Appeals are final and may not be
reviewed on appeal by this Court, except when
the lower court and the CA arrived at diverse
factual findings.21 The petitioners in this case
assail the finding of both the trial and the
appellate courts that petitioner Laspias was
driving at a very fast speed before the bus
owned by petitioner Tiu collided with
respondent Condors stalled truck. This is
clearly one of fact, not reviewable by the Court
in a petition for review under Rule 45.22
On this ground alone, the petition is destined to
fail.
However, considering that novel questions of
law are likewise involved, the Court resolves to
examine and rule on the merits of the case.
Petitioner
Was
negligent
The Ill-fated bus

in

Laspias
driving

In his testimony before the trial court,

petitioner Laspias claimed that he was
traversing the two-lane road at Compostela,
Cebu at a speed of only forty (40) to fifty (50)
kilometers per hour before the incident
occurred.23 He also admitted that he saw the
truck which was parked in an "oblique position"
at about 25 meters before impact, 24and tried to
avoid hitting it by swerving to the left.
However, even in the absence of expert
evidence, the damage sustained by the
truck25 itself supports the finding of both the
trial court and the appellate court, that the D
Rough Rider bus driven by petitioner Laspias
was traveling at a fast pace. Since he saw the
stalled truck at a distance of 25 meters,

petitioner Laspias had more than enough time

to swerve to his left to avoid hitting it; that is, if
the speed of the bus was only 40 to 50
kilometers per hour as he claimed. As found by
the Court of Appeals, it is easier to believe that
petitioner Laspias was driving at a very fast
speed, since at 4:45 a.m., the hour of the
accident, there were no oncoming vehicles at
the opposite direction. Petitioner Laspias
could have swerved to the left lane with proper
clearance, and, thus, could have avoided the
truck.26 Instinct, at the very least, would have
prompted him to apply the breaks to avert the
impending disaster which he must have
foreseen when he caught sight of the stalled
truck. As we had occasion to reiterate:
A man must use common sense, and exercise
due reflection in all his acts; it is his duty to be
cautious, careful and prudent, if not from
instinct, then through fear of recurring
punishment. He is responsible for such results
as anyone might foresee and for acts which no
one would have performed except through
culpable abandon. Otherwise, his own person,
rights and property, and those of his fellow
beings, would ever be exposed to all manner of
danger and injury.27
We agree with the following findings of the trial
court, which were affirmed by the CA on
appeal:
A close study and evaluation of the testimonies
and the documentary proofs submitted by the
parties which have direct bearing on the issue
of negligence, this Court as shown by
preponderance of evidence that defendant
Virgilio Te Laspias failed to observe
extraordinary diligence as a driver of the
common carrier in this case. It is quite hard to
accept his version of the incident that he did
not see at a reasonable distance ahead the
cargo truck that was parked when the Rough
Rider [Bus] just came out of the bridge which is
on an (sic) [more] elevated position than the
place where the cargo truck was parked. With
its headlights fully on, defendant driver of the
Rough Rider was in a vantage position to see
the cargo truck ahead which was parked and

he could just easily have avoided hitting and

bumping the same by maneuvering to the left
without hitting the said cargo truck. Besides, it
is (sic) shown that there was still much room or
space for the Rough Rider to pass at the left
lane of the said national highway even if the
cargo truck had occupied the entire right lane
thereof. It is not true that if the Rough Rider
would proceed to pass through the left lane it
would fall into a canal considering that there
was much space for it to pass without hitting
and bumping the cargo truck at the left lane of
said national highway. The records, further,
showed that there was no incoming vehicle at
the opposite lane of the national highway
which would have prevented the Rough Rider
from not swerving to its left in order to avoid
hitting and bumping the parked cargo truck.
But the evidence showed that the Rough Rider
instead of swerving to the still spacious left
lane of the national highway plowed directly
into the parked cargo truck hitting the latter at
its rear portion; and thus, the (sic) causing
damages not only to herein plaintiff but to the
cargo truck as well.28
Indeed, petitioner Laspias negligence in
driving the bus is apparent in the records. By
his own admission, he had just passed a bridge
and was traversing the highway of Compostela,
Cebu at a speed of 40 to 50 kilometers per
hour before the collision occurred. The
maximum speed allowed by law on a bridge is
only 30 kilometers per hour.29 And, as correctly
pointed out by the trial court, petitioner
Laspias also violated Section 35 of the Land
Transportation and Traffic Code, Republic Act
No. 4136, as amended:1avvphil.net
Sec. 35. Restriction as to speed. (a) Any
person driving a motor vehicle on a highway
shall drive the same at a careful and prudent
speed, not greater nor less than is reasonable
and proper, having due regard for the traffic,
the width of the highway, and or any other
condition then and there existing; and no
person shall drive any motor vehicle upon a
highway at such speed as to endanger the life,
limb and property of any person, nor at a
speed greater than will permit him to bring the

vehicle to a stop within the assured clear

distance ahead.30
Under Article 2185 of the Civil Code, a person
driving a vehicle is presumed negligent if at the
time of the mishap, he was violating any traffic
regulation.31
Petitioner
Tiu
failed
to
Overcome
the
presumption
Of
negligence
against
him
as
One
engaged
in
the
business
Of common carriage
The rules which common carriers should
observe as to the safety of their passengers
are set forth in the Civil Code, Articles
1733,32 175533 and
1756.34 In
this
case,
respondent Arriesgado and his deceased wife
contracted with petitioner Tiu, as owner and
operator of D Rough Riders bus service, for
transportation from Maya, Daanbantayan,
Cebu, to Cebu City for the price of P18.00.35 It
is undisputed that the respondent and his wife
were not safely transported to the destination
agreed upon. In actions for breach of contract,
only the existence of such contract, and the
fact that the obligor, in this case the common
carrier, failed to transport his passenger safely
to his destination are the matters that need to
be proved.36 This is because under the said
contract of carriage, the petitioners assumed
the express obligation to transport the
respondent and his wife to their destination
safely and to observe extraordinary diligence
with due regard for all circumstances. 37 Any
injury suffered by the passengers in the course
thereof is immediately attributable to the
negligence of the carrier.38Upon the happening
of the accident, the presumption of negligence
at once arises, and it becomes the duty of a
common carrier to prove that he observed
extraordinary diligence in the care of his
passengers.39 It must be stressed that in
requiring the highest possible degree of
diligence from common carriers and in creating
a presumption of negligence against them, the
law compels them to curb the recklessness of
their drivers.40

While evidence may be submitted to overcome

such presumption of negligence, it must be
shown that the carrier observed the required
extraordinary diligence, which means that the
carrier must show the utmost diligence of very
cautious persons as far as human care and
foresight can provide, or that the accident was
caused by fortuitous event.41 As correctly found
by the trial court, petitioner Tiu failed to
conclusively rebut such presumption. The
negligence of petitioner Laspias as driver of
the passenger bus is, thus, binding against
petitioner Tiu, as the owner of the passenger
bus engaged as a common carrier.42
The
Doctrine
Last
Clear
Is
Inapplicable
Case at Bar

in

of
Chance
the

Contrary to the petitioners contention, the

principle of last clear chance is inapplicable in
the instant case, as it only applies in a suit
between the owners and drivers of two
colliding vehicles. It does not arise where a
passenger demands responsibility from the
carrier to enforce its contractual obligations, for
it would be inequitable to exempt the negligent
driver and its owner on the ground that the
other
driver
was
likewise
guilty
of
negligence.43 The common law notion of last
clear chance permitted courts to grant
recovery to a plaintiff who has also been
negligent provided that the defendant had the
last clear chance to avoid the casualty and
failed to do so. Accordingly, it is difficult to see
what role, if any, the common law of last clear
chance doctrine has to play in a jurisdiction
where the common law concept of contributory
negligence as an absolute bar to recovery by
the plaintiff, has itself been rejected, as it has
been in Article 2179 of the Civil Code. 44
Thus, petitioner Tiu cannot escape liability for
the death of respondent Arriesgados wife due
to the negligence of petitioner Laspias, his
employee, on this score.

Respondents
Condor
Negligent

Pedrano
were

and
likewise

In Phoenix Construction, Inc. v. Intermediate

Appellate Court,45 where therein respondent
Dionisio sustained injuries when his vehicle
rammed against a dump truck parked askew,
the Court ruled that the improper parking of a
dump truck without any warning lights or
reflector devices created an unreasonable risk
for anyone driving within the vicinity, and for
having created such risk, the truck driver must
be held responsible. In ruling against the
petitioner therein, the Court elucidated, thus:
In our view, Dionisios negligence, although
later in point of time than the truck drivers
negligence, and therefore closer to the
accident, was not an efficient intervening or
independent cause. What the petitioners
describe as an "intervening cause" was no
more than a foreseeable consequence of the
risk created by the negligent manner in which
the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a
duty to private respondent Dionisio and others
similarly situated not to impose upon them the
very risk the truck driver had created.
Dionisios negligence was not that of an
independent and overpowering nature as to
cut, as it were, the chain of causation in fact
between the improper parking of the dump
truck and the accident, nor to sever the juris
vinculum of liability.

and that such failure created the presumption

of negligence on the part of his employer,
respondent
Condor,
in
supervising
his
employees properly and adequately. As we
ruled in Poblete v. Fabros:47
It is such a firmly established principle, as to
have virtually formed part of the law itself, that
the negligence of the employee gives rise to
the presumption of negligence on the part of
the employer. This is the presumed negligence
in the selection and supervision of employee.
The theory of presumed negligence, in contrast
with the American doctrine of respondeat
superior, where the negligence of the
employee is conclusively presumed to be the
negligence of the employer, is clearly
deducible from the last paragraph of Article
2180 of the Civil Code which provides that the
responsibility therein mentioned shall cease if
the employers prove that they observed all the
diligence of a good father of a family to
prevent damages. 48
The petitioners were correct in invoking
respondent Pedranos failure to observe Article
IV, Section 34(g) of the Rep. Act No. 4136,
which provides:1avvphil.net
(g) Lights
when
parked
or
disabled.
Appropriate parking lights or flares visible one
hundred meters away shall be displayed at a
corner of the vehicle whenever such vehicle is
parked on highways or in places that are not
well-lighted or is placed in such manner as to
endanger passing traffic.

We hold that private respondent Dionisios

negligence was "only contributory," that the
"immediate and proximate cause" of the injury
remained the truck drivers "lack of due
care."46
In this case, both the trial and the appellate
courts failed to consider that respondent
Pedrano was also negligent in leaving the truck
parked askew without any warning lights or
reflector devices to alert oncoming vehicles,

The manner in which the truck was parked

clearly endangered oncoming traffic on both
sides, considering that the tire blowout which
stalled the truck in the first place occurred in
the wee hours of the morning. The Court can
only now surmise that the unfortunate incident
could have been averted had respondent
Condor, the owner of the truck, equipped the
said vehicle with lights, flares, or, at the very
least, an early warning device. 49 Hence, we
cannot subscribe to respondents Condor and
Pedranos claim that they should be absolved
from liability because, as found by the trial and

appellate courts, the proximate cause of the

collision was the fast speed at which petitioner
Laspias drove the bus. To accept this
proposition would be to come too close to
wiping out the fundamental principle of law
that a man must respond for the foreseeable
consequences of his own negligent act or
omission. Indeed, our law on quasi-delicts
seeks to reduce the risks and burdens of living
in society and to allocate them among its
members. To accept this proposition would be
to weaken the very bonds of society.50
The
Respondent
as Insurer

Liability

of
PPSII

The trial court in this case did not rule on the

liability of respondent PPSII, while the appellate
court ruled that, as no evidence was presented
against it, the insurance company is not liable.
A perusal of the records will show that when
the petitioners filed the Third-Party Complaint
against respondent PPSII, they failed to attach
a copy of the terms of the insurance contract
itself.
Only
Certificate
of
Cover
No.
05494051 issued in favor of "Mr. William Tiu,
Lahug, Cebu City" signed by Cosme H. Boniel
was appended to the third-party complaint. The
date of issuance, July 22, 1986, the period of
insurance, from July 22, 1986 to July 22, 1987,
as well as the following items, were also
indicated therein:
SCHEDULED VEHICLE
MOD
EL

PLAT
E
NO.
PBP724

SECTION 1/11
A. THIRD PARTY
LIABILITY
B.
PASSENGER
LIABILITY

*LIMITS
LIABILITY
P50,000.00
Per
Person
P12,00
0.00

OF

PREMI
UMS
PAID
P540.0
052

Per
Acciden
t
P50,000

In its Answer53 to the Third-Party Complaint, the

respondent PPSII admitted the existence of the
contract of insurance, in view of its failure to
specifically deny the same as required under
then Section 8(a), Rule 8 of the Rules of
Court,54 which reads:
Sec. 8. How to contest genuineness of such
documents. When an action or defense is
founded upon a written instrument copied in or
attached to the corresponding pleading as
provided in the preceding section, the
genuineness and due execution of the
instrument shall be deemed admitted unless
the adverse party, under oath, specifically
denies them, and sets forth what he claims to
be the facts; but the requirement of an oath
does not apply when the adverse party does
not appear to be a party to the instrument or
when compliance with an order for inspection
of the original instrument is refused.
In fact, respondent PPSII did not dispute the
existence of such contract, and admitted that it
was liable thereon. It claimed, however, that it
had attended to and settled the claims of those
injured during the incident, and set up the
following as special affirmative defenses:

MAKE
Isuzu
Forward

TYPE
OF
BODY
Bus

COLOR
blue
mixed

BLT
FILE
NO.

SERIAL/C
HASSIS
NO.
SER4501584124

MOTO
R NO.
67783
6

AUTHO
RIZED
CAPACI
TY
50

UNLAD
EN
WEIGH
8. It has attended to the claims of Vincent
T
6 Cyls. Canales, Asuncion Batiancila and Neptali Palces
who sustained injuries during the incident in
Kgs.
question. In fact, it settled financially their

Third party defendant Philippine Phoenix Surety

and Insurance, Inc. hereby reiterates and
incorporates by way of reference the preceding
paragraphs and further states THAT:-

claims per vouchers duly signed by them and

they duly executed Affidavit[s] of Desistance to
that effect, xerox copies of which are hereto
attached as Annexes 1, 2, 3, 4, 5, and 6
respectively;
9. With respect to the claim of plaintiff, herein
answering third party defendant through its
authorized insurance adjuster attended to said
claim. In fact, there were negotiations to that
effect. Only that it cannot accede to the
demand of said claimant considering that the
claim was way beyond the scheduled
indemnity as per contract entered into with
third party plaintiff William Tiu and third party
defendant (Philippine Phoenix Surety and
Insurance, Inc.). Third party Plaintiff William Tiu
knew all along the limitation as earlier stated,
he being an old hand in the transportation
business;55
Considering
the
admissions
made
by
respondent PPSII, the existence of the
insurance contract and the salient terms
thereof cannot be dispatched. It must be noted
that after filing its answer, respondent PPSII no
longer objected to the presentation of evidence
by respondent Arriesgado and the insured
petitioner
Tiu.
Even
in
its
Memorandum56 before the Court, respondent
PPSII admitted the existence of the contract,
but averred as follows:
Petitioner Tiu is insisting that PPSII is liable to
him for contribution, indemnification and/or
reimbursement. This has no basis under the
contract. Under the contract, PPSII will pay all
sums necessary to discharge liability of the
insured subject to the limits of liability but not
to exceed the limits of liability as so stated in
the contract. Also, it is stated in the contract
that in the event of accident involving
indemnity to more than one person, the limits
of liability shall not exceed the aggregate
amount so specified by law to all persons to be
indemnified.57
As can be gleaned from the Certificate of
Cover, such insurance contract was issued
pursuant to the Compulsory Motor Vehicle

Liability Insurance Law. It was expressly

provided therein that the limit of the insurers
liability for each person was P12,000, while the
limit per accident was pegged at P50,000. An
insurer in an indemnity contract for third party
liability is directly liable to the injured party up
to the extent specified in the agreement but it
cannot be held solidarily liable beyond that
amount.58 The respondent PPSII could not then
just deny petitioner Tius claim; it should have
paid P12,000
for
the
death
of
Felisa
Arriesgado,59 and
respondent
Arriesgados
hospitalization expenses of P1,113.80, which
the trial court found to have been duly
supported by receipts. The total amount of the
claims, even when added to that of the other
injured passengers which the respondent PPSII
claimed to have settled,60 would not exceed
the P50,000
limit
under
the
insurance
agreement.
Indeed, the nature of Compulsory Motor Vehicle
Liability Insurance is such that it is primarily
intended to provide compensation for the
death or bodily injuries suffered by innocent
third parties or passengers as a result of the
negligent operation and use of motor vehicles.
The victims and/or their dependents are
assured of immediate financial assistance,
regardless of the financial capacity of motor
vehicle owners.61 As the Court, speaking
through
Associate
Justice
Leonardo
A.
Quisumbing, explained in Government Service
Insurance System v. Court of Appeals:62
However, although the victim may proceed
directly against the insurer for indemnity, the
third party liability is only up to the extent of
the insurance policy and those required by law.
While it is true that where the insurance
contract provides for indemnity against liability
to third persons, and such persons can directly
sue the insurer, the direct liability of the insurer
under indemnity contracts against third party
liability does not mean that the insurer can be
held liable in solidum with the insured and/or
the other parties found at fault. For the liability
of the insurer is based on contract; that of the
insured carrier or vehicle owner is based on
tort.

Obviously, the insurer could be held liable only

up to the extent of what was provided for by
the contract of insurance, in accordance with
the CMVLI law. At the time of the incident, the
schedule of indemnities for death and bodily
injuries, professional fees and other charges
payable under a CMVLI coverage was provided
for under the Insurance Memorandum Circular
(IMC) No. 5-78 which was approved on
November 10, 1978. As therein provided, the
maximum indemnity for death was twelve
thousand (P12,000.00) pesos per victim. The
schedules for medical expenses were also
provided by said IMC, specifically in paragraphs
(C) to (G).63
Damages
Awarded

to

be

The trial court correctly awarded moral

damages in the amount of P50,000 in favor of
respondent
Arriesgado.
The
award
of
exemplary damages by way of example or
correction of the public good, 64 is likewise in
order. As the Court ratiocinated in Kapalaran
Bus Line v. Coronado:65
While the immediate beneficiaries of the
standard of extraordinary diligence are, of
course, the passengers and owners of cargo
carried by a common carrier, they are not the
only persons that the law seeks to benefit. For
if common carriers carefully observed the
statutory standard of extraordinary diligence in
respect of their own passengers, they cannot
help but simultaneously benefit pedestrians
and the passengers of other vehicles who are
equally entitled to the safe and convenient use
of our roads and highways. The law seeks to
stop and prevent the slaughter and maiming of
people (whether passengers or not) on our
highways and buses, the very size and power
of which seem to inflame the minds of their
drivers. Article 2231 of the Civil Code explicitly
authorizes the imposition of exemplary
damages in cases of quasi-delicts "if the
defendant acted with gross negligence."66
The respondent Pedro A. Arriesgado, as the
surviving spouse and heir of Felisa Arriesgado,

is entitled to
of P50,000.00.67

indemnity

in

the

amount

The petitioners, as well as the respondents

Benjamin Condor and Sergio Pedrano are
jointly and severally liable for said amount,
conformably with the following pronouncement
of the Court in Fabre, Jr. vs. Court of Appeals:68
The same rule of liability was applied in
situations where the negligence of the driver of
the bus on which plaintiff was riding concurred
with the negligence of a third party who was
the driver of another vehicle, thus causing an
accident. In Anuran v. Buo, Batangas Laguna
Tayabas Bus Co. v. Intermediate Appellate
Court, and Metro Manila Transit Corporation v.
Court of Appeals, the bus company, its driver,
the operator of the other vehicle and the driver
of the vehicle were jointly and severally held
liable to the injured passenger or the latters
heirs. The basis of this allocation of liability was
explained in Viluan v. Court of Appeals, thus:
"Nor should it make difference that the liability
of petitioner [bus owner] springs from contract
while that of respondents [owner and driver of
other vehicle] arises from quasi-delict. As early
as 1913, we already ruled in Gutierrez vs.
Gutierrez, 56 Phil. 177, that in case of injury to
a passenger due to the negligence of the driver
of the bus on which he was riding and of the
driver of another vehicle, the drivers as well as
the owners of the two vehicles are jointly and
severally liable for damages. Some members of
the Court, though, are of the view that under
the circumstances they are liable on quasidelict."69
IN LIGHT OF ALL THE FOREGOING, the
petition is PARTIALLY GRANTED. The Decision
of
the
Court
of
Appeals
is AFFIRMED with MODIFICATIONS:
(1) Respondent Philippine Phoenix Surety and
Insurance, Inc. and petitioner William Tiu are
ORDERED to pay, jointly and severally,
respondent Pedro A. Arriesgado the total
amount of P13,113.80;

(2) The petitioners and the respondents

Benjamin Condor and Sergio Pedrano are
ORDERED to pay, jointly and severally,
respondent Pedro A. Arriesgado P50,000.00 as
indemnity; P26,441.50
as
actual
damages; P50,000.00
as
moral
damages; P50,000.00 as exemplary damages;
and P20,000.00 as attorneys fees.
SO ORDERED.

Philippine National
Vizcara
G.R. No. 190022
DECISION

Railways

Corp

REYES, J.:
Nature of the Petition
Before this Court is a petition for review
on certiorari under Rule 45 of the 1997 Rules of
Civil Procedure, seeking to annul and set aside
the Decision[1] dated July 21, 2009 of the Court
of Appeals (CA) in CA-G.R. CV No. 90021, which
affirmed with modification the Decision [2] dated
March 20, 2007 of the Regional Trial Court
(RTC),
Branch
40,
Palayan
City,
and
Resolution[3] dated October 26, 2009, which
denied
the
petitioners
motion
for
reconsideration.

Purificacion Vizcara, Marivic Vizcara, Cresencia

Natividad and Hector Vizcara, filed an action
for damages against PNR, Estranas and Ben
Saga, the alternate driver of the train, before
the RTC of Palayan City. The case was raffled to
Branch 40 and was docketed as Civil Case No.
0365-P. In their complaint, the respondents
alleged that the proximate cause of the
fatalities and serious physical injuries sustained
by the victims of the accident was the
petitioners gross negligence in not providing
adequate safety measures to prevent injury to
persons and properties. They pointed out that
in the railroad track of Tiaong, Quezon where
the accident happened, there was no level
crossing bar, lighting equipment or bell
installed to warn motorists of the existence of
the track and of the approaching train. They
concluded their complaint with a prayer for
actual, moral and compensatory damages, as
well as attorneys fees.[6]

The Antecedent Facts

On May 14, 2004, at about three oclock
in the morning, Reynaldo Vizcara (Reynaldo)
was driving a passenger jeepney headed
towards Bicol to deliver onion crops, with his
companions,
namely,
Cresencio
Vizcara
(Cresencio), Crispin Natividad (Crispin), Samuel
Natividad
(Samuel),
Dominador
Antonio
(Dominador) and Joel Vizcara (Joel). While
crossing the railroad track in Tiaong, Quezon, a
Philippine National Railways (PNR) train, then
being operated by respondent Japhet Estranas
(Estranas), suddenly turned up and rammed
the passenger jeepney. The collision resulted to
the
instantaneous
death
of
Reynaldo,
Cresencio, Crispin, and Samuel. On the other
hand, Dominador and Joel, sustained serious
physical injuries.[4]
At the time of the accident, there was no level
crossing installed at the railroad crossing.
Additionally, the Stop, Look and Listen signage
was poorly maintained. The Stop signage was
already faded while the Listen signage was
partly blocked by another signboard.[5]

For their part, the petitioners claimed that they

exercised due diligence in operating the train
and monitoring its roadworthiness. They
asseverate that right before the collision,
Estranas was driving the train at a moderate
speed. Four hundred (400) meters away from
the railroad crossing, he started blowing his
horn to warn motorists of the approaching
train. When the train was only fifty (50) meters
away from the intersection, respondent
Estranas noticed that all vehicles on both sides
of the track were already at a full stop.Thus, he
carefully proceeded at a speed of twenty-five
(25) kilometers per hour, still blowing the trains
horn. However, when the train was already ten
(10) meters away from the intersection, the
passenger jeepney being driven by Reynaldo
suddenly
crossed
the
tracks.
Estranas
immediately stepped on the brakes to avoid
hitting the jeepney but due to the sheer weight
of the train, it did not instantly come to a
complete stop until the jeepney was dragged
20 to 30 meters away from the point of
collision.[7]
The Ruling of the Trial Court

On September 15, 2004, the survivors of the

mishap, Joel and Dominador, together with the
heirs of the deceased victims, namely,

After trial on the merits, the RTC rendered its

Decision[8] dated March 20, 2007, ruling in

favor of the respondents,

portion of which reads:

the

dispositive

WHEREFORE,
premises
considered, judgment is hereby
rendered ordering defendants
Philippine National Railways
Corporation
(PNR),
Japhet
Estranas and Ben Saga to,
jointly and severally pay the
following amounts to:
1. a) PURIFICACION VIZCARA:
1)
P50,000.00,
as
indemnity for the death
of Reynaldo Vizcara;
2)
P35,000.00, for funeral expenses;
3)
P5,000.00
for
re-embalming
expenses;
4)
P40,000.00 for wake/interment
expenses;
5)
P300,000.00 as reimbursement
for the value of the jeepney with
license plate no. DTW-387;
6)
P200,000.00 as moral damages;
7)
P100,000.00
as
exemplary
damages; and
8)
P20,000.00 for Attorneys fees.
b) MARIVIC VIZCARA:
1)
P50,000.00, as indemnity for the
death of Cresencio Vizcara;
2)
P200,000.00 as moral damages;
3)
P100,000.00
as
exemplary
damages; and
4)
P20,000.00 for Attorneys fees.
c) HECTOR VIZCARA:
1)
P50,000.00 as indemnity for the
death of Samuel Vizcara;
2)
P200,000.00 as moral damages;
3)
P100,000.00
as
exemplary
damages; and
4)
P20,000.00 for Attorneys fees.
d) CRESENCIA NATIVIDAD:
1)
P50,000.00 as indemnity for the
death of Crispin Natividad;
2)
P200,000.00 as moral damages;
3)
P100,000.00
as
exemplary
damages; and
4)
P20,000.00 for Attorneys fees.

e) JOEL VIZCARA
1) P9,870.00 as reimbursement for his
actual expenses;
2) P50,000.00 as moral damages;
3) P25,000.00 as exemplary damages;
and
4) P10,000.00 for Attorneys fees.
f) DOMINADOR ANTONIO
1)
P63,427.00 as reimbursement for
his actual expenses;
2)
P50,000.00 as moral damages;
3)
P25,000.00
as
exemplary
damages; and
4)
P10,000.00 for Attorneys fees.
and
2. Costs of suit.
SO ORDERED.[9]

CRESENCIA
NATIVIDAD
is
hereby reduced from
P200,000.00
toP100,000.00 each
while
moral
damages awarded to JOEL VIZCARA
and
DOMINADOR
ANTONIO
are
likewise reduced from
P50,000.00
to P25,000.00;
(3)
The award
of
exemplary
damages to PURIFICACION VIZCARA,
MARIVIC VIZCARA, HECTOR VIZCARA
and CRESENCIA NATIVIDAD is hereby
reduced
from
P100,000.00
toP50,000.00 each while exemplary
damages awarded to JOEL VIZCARA
and
DOMINADOR
ANTONIO
are
likewise reduced from
P25,000.00
to P12,500.00; and
(4) The award for attorneys fees in
favor of the Appellees as well as the
award of P300,000.00 to Appellee
PURIFICACION
as reimbursement for
the value of the jeepney is DELETED.
SO ORDERED.[10]

The Ruling of the CA

Unyielding, the petitioners appealed the RTC
decision to the CA. Subsequently, on July 21,
2009, the CA rendered the assailed decision,
affirming the RTC decision with modification
with respect to the amount of damages
awarded to the respondents. The CA disposed,
thus:
WHEREFORE,
instant
appeal
is PARTIALLY GRANTED. The assailed
Decision
is AFFIRMED
WITH
MODIFICATION, as follows:
(1) The award of P5,000.00 for reembalming expenses and P40,000.00
for
wake/interment
expenses
to
PURIFICACION VIZCARA is deleted. In
lieu
thereof, P25,000.00
as
temperate damages is awarded;
(2) The award of moral damages to
PURIFICACION
VIZCARA,
MARIVIC
VIZCARA,
HECTOR
VIZCARA
and

In the assailed decision, the CA

affirmed the RTCs finding of negligence on the
part of the petitioners. It concurred with the
trial court's conclusion that petitioner PNR's
failure to install sufficient safety devices in the
area, such as flagbars or safety railroad bars
and signage, was the proximate cause of the
accident. Nonetheless, in order to conform with
established jurisprudence, it modified the
monetary awards to the victims and the heirs
of those who perished due to the collision.
The petitioners filed a Motion for
Reconsideration[11] of the decision of the CA.
However, in a Resolution[12] dated October 26,
2009, the CA denied the same.
Aggrieved, the petitioners filed the
present petition for review on certiorari, raising
the following grounds:
I

THE CA ERRED IN FINDING THAT

THE PROXIMATE CAUSE OF THE
ACCIDENT WAS THE NEGLIGENCE
OF THE PETITIONERS;
II
THE CA ERRED IN HOLDING THAT
THE DOCTRINE OF LAST CLEAR
CHANCE FINDS NO APPLICATION IN
THE INSTANT CASE;
III
THE
CA
ERRED
IN
FINDING
NEGLIGENCE ON THE PART OF THE
PETITIONERS OR ERRED IN NOT
FINDING
AT
THE
LEAST,
CONTRIBUTORY NEGLIGENCE ON
THE PART OF THE RESPONDENTS.
[13]

The petitioners maintain that the

proximate cause of the collision was the
negligence and recklessness of the driver of
the jeepney. They argue that as a professional
driver, Reynaldo is presumed to be familiar
with traffic rules and regulations, including the
right of way accorded to trains at railroad
crossing and the precautionary measures to
observe in traversing the same. However, in
utter disregard of the right of way enjoyed by
PNR trains, he failed to bring his jeepney to a
full stop before crossing the railroad track and
thoughtlessly followed the ten-wheeler truck
ahead of them. His failure to maintain a safe
distance between the jeepney he was driving
and the truck ahead of the same prevented
him from seeing the PNR signage displayed
along the crossing.[14]
In their Comment,[15] the respondents
reiterate the findings of the RTC and the CA
that the petitioners' negligence in maintaining
adequate and necessary public safety devices
in the area of the accident was the proximate
cause of the mishap. They asseverate that if
there was only a level crossing bar, warning
light or sound, or flagman in the intersection,
the accident would not have happened. Thus,

there is no other party to blame but the

petitioners for their failure to ensure that
adequate warning devices are installed along
the railroad crossing.[16]
This Courts Ruling
The petition lacks merit.
The petitioners negligence was the
proximate cause of the accident.
Article 2176 of the New Civil Code prescribes a
civil liability for damages caused by a person's
act or omission constituting fault or negligence.
It states:
Article 2176. Whoever
by act or omission causes
damage to another, there
being fault or negligence, is
obliged to pay for the damage
done. Such fault or negligence,
if there was no pre-existing
contractual relation between
the parties, is called quasidelict and is governed by the
provisions of this chapter.
In Layugan v. Intermediate Appellate Court,
[17]
negligence was defined as the omission to
do something which a reasonable man, guided
by considerations which ordinarily regulate the
conduct of human affairs, would do, or the
doing of something which a prudent and
reasonable man would not do. It is the failure
to observe for the protection of the interests of
another person, that degree of care,
precaution,
and
vigilance
which
the
circumstances justly demand, whereby such
other person suffers injury.[18] To determine the
existence of negligence, the time-honored test
was: Did the defendant in doing the alleged
negligent act use that reasonable care and
caution which an ordinarily prudent person
would have used in the same situation? If not,
then he is guilty of negligence. The law here in
effect adopts the standard supposed to be
supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The

existence of negligence in a given case is not

determined by reference to the personal
judgment of the actor in the situation before
him. The law considers what would be reckless,
blameworthy, or negligent in the man of
ordinary intelligence and prudence and
determines liability by that.[19]
In the instant petition, this Court is
called upon to determine whose negligence
occasioned the ill-fated incident. The records
however reveal that this issue had been
rigorously discussed by both the RTC and the
CA. To emphasize, the RTC ruled that it was the
petitioners failure to install adequate safety
devices at the railroad crossing which
proximately caused the collision. This finding
was affirmed by the CA in its July 21, 2009
Decision. It is a well-established rule that
factual findings by the CA are conclusive on the
parties and are not reviewable by this Court.
They are entitled to great weight and respect,
even finality, especially when, as in this case,
the CA affirmed the factual findings arrived at
by the trial court.[20]
Furthermore, in petitions for review
on certiorari, only questions of law may be put
into issue. Questions of fact cannot be
entertained.[21] To distinguish one from the
other, a question of law exists when the doubt
or difference centers on what the law is on a
certain state of facts. A question of fact, on the
other hand, exists if the doubt centers on the
truth or falsity of the alleged facts. [22] Certainly,
the finding of negligence by the RTC, which
was affirmed by the CA, is a question of fact
which this Court cannot pass upon as this
would entail going into the factual matters on
which the negligence was based. [23] Moreover,
it was not shown that the present case falls
under any of the recognized exceptions[24] to
the oft repeated principle according great
weight and respect to the factual findings of
the trial court and the CA.
At any rate, the records bear out that
the factual circumstances of the case were
meticulously scrutinized by both the RTC and
the CA before arriving at the same finding of
negligence on the part of the petitioners, and

we found no compelling reason to disturb the

same. Both courts ruled that the petitioners fell
short of the diligence expected of it, taking into
consideration the nature of its business, to
forestall any untoward incident. In particular,
the petitioners failed to install safety railroad
bars to prevent motorists from crossing the
tracks in order to give way to an approaching
train. Aside from the absence of a crossing bar,
the Stop, Look and Listen signage installed in
the area was poorly maintained, hence,
inadequate to alert the public of the impending
danger. A reliable signaling device in good
condition, not just a dilapidated Stop, Look and
Listen signage, is needed to give notice to the
public. It is the responsibility of the railroad
company to use reasonable care to keep the
signal devices in working order. Failure to do so
would be an indication of negligence. [25] Having
established the fact of negligence on the part
of the petitioners, they were rightfully held
liable for damages.
There
was
no
contributory
negligence
on
the
part
of
the
respondents.
As to whether there was contributory
negligence on the part of the respondents, this
court rule in the negative. Contributory
negligence is conduct on the part of the injured
party, contributing as a legal cause to the harm
he has suffered, which falls below the standard
which he is required to conform for his own
protection. It is an act or omission amounting
to want of ordinary care on the part of the
person injured which, concurring with the
defendants negligence, is the proximate cause
of the injury.[26] Here, we cannot see how the
respondents could have contributed to their
injury when they were not even aware of the
forthcoming danger. It was established during
the trial that the jeepney carrying the
respondents was following a ten-wheeler truck
which was only about three to five meters
ahead. When the truck proceeded to traverse
the railroad track, Reynaldo, the driver of the
jeepney, simply followed through. He did so
under the impression that it was safe to
proceed. It bears noting that the prevailing
circumstances immediately before the collision

did not manifest even the slightest indication

of an imminent harm. To begin with, the truck
they were trailing was able to safely cross the
track. Likewise, there was no crossing bar to
prevent them from proceeding or, at least, a
stoplight or signage to forewarn them of the
approaching peril. Thus, relying on his faculties
of sight and hearing, Reynaldo had no reason
to anticipate the impending danger. [27] He
proceeded to cross the track and, all of a
sudden, his jeepney was rammed by the train
being operated by the petitioners. Even then,
the circumstances before the collision negate
the imputation of contributory negligence on
the part of the respondents. What clearly
appears is that the accident would not have
happened had the petitioners installed reliable
and adequate safety devices along the crossing
to ensure the safety of all those who may
utilize the same.
At this age of modern transportation, it
behooves the PNR to exert serious efforts to
catch up with the trend, including the
contemporary standards in railroad safety. As
an institution established to alleviate public
transportation, it is the duty of the PNR to
promote the safety and security of the general
riding public and provide for their convenience,
which to a considerable degree may be
accomplished
by
the
installation
of
precautionary warning devices. Every railroad
crossing must be installed with barriers on
each side of the track to block the full width of
the road until after the train runs past the
crossing. To even draw closer attention, the
railroad crossing may be equipped with a
device which rings a bell or turns on a signal
light to signify the danger or risk of crossing. It
is similarly beneficial to mount advance
warning signs at the railroad crossing, such as
a reflectorized crossbuck sign to inform
motorists of the existence of the track, and a
stop, look and listen signage to prompt the
public to take caution. These warning signs
must be erected in a place where they will
have ample lighting and unobstructed visibility
both day and night. If only these safety devices
were installed at the Tiaong railroad crossing
and the accident nevertheless occurred, we

could have reached a different disposition in

the extent of the petitioners liability.
The exacting nature of the responsibility of
railroad companies to secure public safety by
the installation of warning devices was
emphasized in Philippine National Railways v.
Court of Appeals,[28] thus:
[I]t may broadly be stated that railroad
companies owe to the public a duty of
exercising a reasonable degree of care
to avoid injury to persons and property
at railroad crossings, which duties
pertain both to the operation of trains
and to the maintenance of the
crossings. Moreover, every corporation
constructing or operating a railway
shall make and construct at all points
where such railway crosses any public
road, good, sufficient, and safe
crossings, and erect at such points, at
sufficient elevation from such road as
to admit a free passage of vehicles of
every kind, a sign with large and
distinct letters placed thereon, to give
notice of the proximity of the railway,
and warn persons of the necessity of
looking out for trains. The failure of the
PNR to put a cross bar, or signal light,
flagman or switchman, or semaphore is
evidence of negligence and disregard
of the safety of the public, even if there
is no law or ordinance requiring it,
because public safety demands that
said device or equipment be installed.
[29]

The responsibility of the PNR to secure public

safety does not end with the installation of
safety equipment and signages but, with equal
measure of accountability, with the upkeep and
repair of the same. Thus, in Cusi v. Philippine
National Railways,[30] we held:
Jurisprudence
recognizes
that
if
warning devices are installed in railroad
crossings, the travelling public has the
right to rely on such warning devices to

put them on their guard and take the

necessary precautions before crossing
the tracks. A need, therefore, exists for
the railroad company to use reasonable
care to keep such devices in good
condition and in working order, or to
give notice that they are not operating,
since if such a signal is misunderstood
it is a menace. Thus, it has been held
that if a railroad company maintains a
signalling device at a crossing to give
warning of the approach of a train, the
failure of the device to operate is
generally held to be evidence of
negligence, which maybe considered
with all the circumstances of the case
in determining whether the railroad
company was negligent as a matter of
fact. [31]
The maintenance of safety equipment and
warning signals at railroad crossings is equally
important as their installation since poorly
maintained safety warning devices court as
much danger as when none was installed at all.
The presence of safety warning signals at
railroad
crossing
carries
with
it
the
presumption that they are in good working
condition and that the public may depend on
them for assistance. If they happen to be
neglected and inoperative, the public may be
misled into relying on the impression of safety
they normally convey and eventually bring
injury to themselves in doing so.
The doctrine of last clear chance is not
applicable.
Finally, the CA correctly ruled that the doctrine
of last clear chance is not applicable in the
instant case. The doctrine of last clear chance
provides that where both parties are negligent
but the negligent act of one is appreciably later
in point of time than that of the other, or where
it is impossible to determine whose fault or
negligence brought about the occurrence of the
incident, the one who had the last clear
opportunity to avoid the impending harm but
failed to do so, is chargeable with the

consequences
arising
therefrom.
Stated
differently, the rule is that the antecedent
negligence of a person does not preclude
recovery
of
damages
caused
by
the
supervening negligence of the latter, who had
the last fair chance to prevent the impending
harm by the exercise of due diligence. [32] To
reiterate, the proximate cause of the collision
was the petitioners negligence in ensuring that

motorists and pedestrians alike may safely

cross the railroad track. The unsuspecting
driver and passengers of the jeepney did not
have any participation in the occurrence of the
unfortunate incident which befell them.
Likewise, they did not exhibit any overt act
manifesting disregard for their own safety.
Thus, absent preceding negligence on the part

of the respondents, the doctrine of last clear

chance cannot be applied.
WHEREFORE,
premises
considered,
the
petition is DENIED. The Decision of the Court
of Appeals dated July 21, 2009 in CA-G.R. CV
No. 90021 is hereby AFFIRMED.
SO ORDERED.