G.R. No.

L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein,
Fausto Barredo, liable in damages for the death of Faustino Garcia caused by
the negligence of Pedro Fontanilla, a taxi driver employed by said Fausto
Barredo.
At about half past one in the morning of May 3, 1936, on the road between
Malabon and Navotas, Province of Rizal, there was a head-on collision between
a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by
Pedro Dimapalis. The carretela was overturned, and one of its passengers, 16year-old boy Faustino Garcia, suffered injuries from which he died two days
later. A criminal action was filed against Fontanilla in the Court of First Instance
of Rizal, and he was convicted and sentenced to an indeterminate sentence of
one year and one day to two years of prision correccional. The court in the
criminal case granted the petition that the right to bring a separate civil action be
reserved. The Court of Appeals affirmed the sentence of the lower court in the
criminal case. Severino Garcia and Timotea Almario, parents of the deceased on
March 7, 1939, brought an action in the Court of First Instance of Manila against
Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of
Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest from the date of
the complaint. This decision was modified by the Court of Appeals by reducing
the damages to P1,000 with legal interest from the time the action was
instituted. It is undisputed that Fontanilla 's negligence was the cause of the
mishap, as he was driving on the wrong side of the road, and at high speed. As
to Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof
that he exercised the diligence of a good father of a family to prevent
damage. (See p. 22, appellant's brief.) In fact it is shown he was
careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) violation
which appeared in the records of the Bureau of Public Works available
to be public and to himself. Therefore, he must indemnify plaintiffs under
the provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed
by the Revised Penal Code; hence, his liability is only subsidiary, and as there
has been no civil action against Pedro Fontanilla, the person criminally liable,
Barredo cannot be held responsible in the case. The petitioner's brief states on
page 10:
... The Court of Appeals holds that the petitioner is being sued for his
failure to exercise all the diligence of a good father of a family in the
selection and supervision of Pedro Fontanilla to prevent damages
suffered by the respondents. In other words, The Court of Appeals
insists on applying in the case article 1903 of the Civil Code. Article
1903 of the Civil Code is found in Chapter II, Title 16, Book IV of the
Civil Code. This fact makes said article to a civil liability arising from a
crime as in the case at bar simply because Chapter II of Title 16 of Book
IV of the Civil Code, in the precise words of article 1903 of the Civil
Code itself, is applicable only to "those (obligations) arising from
wrongful or negligent acts or commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to
be imposed upon him in this action is not a civil obligation arising from a
felony or a misdemeanor (the crime of Pedro Fontanilla,), but an
obligation imposed in article 1903 of the Civil Code by reason of his
negligence in the selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate
civil action against Fausto Barredo, thus making him primarily and directly,
responsible under article 1903 of the Civil Code as an employer of Pedro
Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is only
subsidiary, according to said Penal code, but Fontanilla has not been sued in a
civil action and his property has not been exhausted. To decide the main issue,
we must cut through the tangle that has, in the minds of many confused and
jumbled together delitos and cuasi delitos, or crimes under the Penal Code and
fault or negligence under articles 1902-1910 of the Civil Code. This should be
done, because justice may be lost in a labyrinth, unless principles and remedies
are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists and we are likewise
guided by the decisions of this Court in previous cases as well as by the solemn
clarity of the consideration in several sentences of the Supreme Tribunal of
Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a
separate legal institution under the Civil Code with a substantivity all its own,
and individuality that is entirely apart and independent from delict or crime. Upon

this principle and on the wording and spirit article 1903 of the Civil Code, the
primary and direct responsibility of employers may be safely anchored.

whom properly devolved the duty of doing the act performed, in which
case the provisions of the next preceding article shall be applicable.

The pertinent provisions of the Civil Code and Revised Penal Code are as
follows:

Finally, teachers or directors of arts trades are liable for any damages
caused by their pupils or apprentices while they are under their custody.

CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasicontracts, and from acts and omissions which are unlawful or in which
any kind of fault or negligence intervenes.
xxx

xxx

The liability imposed by this article shall cease in case the persons
mentioned therein prove that they are exercised all the diligence of a
good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees
may recover from the latter what he may have paid.

xxx
REVISED PENAL CODE

ART. 1092. Civil obligations arising from felonies or misdemeanors shall

be governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervenes shall be subject to
the provisions of Chapter II, Title XVI of this book.
xxx

xxx

xxx

ART 1902. Any person who by an act or omission causes damage to

another by his fault or negligence shall be liable for the damage so
done.
ART. 1903. The obligation imposed by the next preceding article is
enforcible, not only for personal acts and omissions, but also for those
of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable
for any damages caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated
persons subject to their authority and living with them.
Owners or directors of an establishment or business are equally liable
for any damages caused by their employees while engaged in the
branch of the service in which employed, or on occasion of the
performance of their duties.
The State is subject to the same liability when it acts through a special
agent, but not if the damage shall have been caused by the official upon

ART. 100. Civil liability of a person guilty of felony. Every person

criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. The
exemption from criminal liability established in subdivisions 1, 2, 3, 5,
and 6 of article 12 and in subdivision 4 of article 11 of this Code does
not include exemption from civil liability, which shall be enforced to the
following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for
acts committed by any imbecile or insane person, and by a person
under nine years of age, or by one over nine but under fifteen years of
age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under
his authority, legal guardianship, or control, or if such person be
insolvent, said insane, imbecile, or minor shall respond with their own
property, excepting property exempt from execution, in accordance with
the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for
whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount
for which each one shall be liable.

When the respective shares can not be equitably determined, even

approximately, or when the liability also attaches to the Government, or to the
majority of the inhabitants of the town, and, in all events, whenever the damage
has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using
violence or causing the fear shall be primarily liable and secondarily, or, if there
be no such persons, those doing the act shall be liable, saving always to the
latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishment. In default of persons criminally liable,
innkeepers, tavern keepers, and any other persons or corporation shall
be civilly liable for crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some general or special
police regulation shall have been committed by them or their
employees.

Any person who, by simple imprudence or negligence, shall commit an

act which would otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum periods; if it would
have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem
to be broad enough to cover the driver's negligence in the instant case,
nevertheless article 1093 limits cuasi-delitos to acts or omissions "not
punishable by law." But inasmuch as article 365 of the Revised Penal Code
punishes not only reckless but even simple imprudence or negligence, the fault
or negligence under article 1902 of the Civil Code has apparently been crowded
out. It is this overlapping that makes the "confusion worse confounded."
However, a closer study shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between the civil liability arising
from a crime and the responsibility for cuasi-delitos or culpa extra-contractual.
The same negligent act causing damages may produce civil liability arising from
a crime under article 100 of the Revised Penal Code, or create an action
for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the Civil
Code.

Innkeepers are also subsidiarily liable for the restitution of goods taken
by robbery or theft within their houses lodging therein, or the person, or
for the payment of the value thereof, provided that such guests shall
have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care of and
vigilance over such goods. No liability shall attach in case of robbery
with violence against or intimidation against or intimidation of persons
unless committed by the innkeeper's employees.

The individuality of cuasi-delito or culpa extra-contractual looms clear and

unmistakable. This legal institution is of ancient lineage, one of its early
ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal
terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or negligence
under the Civil Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es
de fazer emienda, porque, como quier que el non fizo a sabiendas en dao al
otro, pero acaescio por su culpa."

ART. 103. Subsidiary civil liability of other persons. The subsidiary

liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

The distinctive nature of cuasi-delitos survives in the Civil Code. According to

article 1089, one of the five sources of obligations is this legal institution
of cuasi-delito or culpa extra-contractual: "los actos . . . en que intervenga
cualquier genero de culpa o negligencia." Then article 1093 provides that this
kind of obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-0910. This portion of the Civil Code is exclusively
devoted to the legal institution of culpa aquiliana.

xxx

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xxx

ART. 365. Imprudence and negligence. Any person who, by reckless

imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed.

Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private
concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act,
while the Civil Code, by means of indemnification, merely repairs the damage.

3. That delicts are not as broad as quasi-delicts, because the former are
punished only if there is a penal law clearly covering them, while the
latter, cuasi-delitos, include all acts in which "any king of fault or negligence
intervenes." However, it should be noted that not all violations of the penal law
produce civil responsibility, such as begging in contravention of ordinances,
violation of the game laws, infraction of the rules of traffic when nobody is hurt.
(See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasidelicts and the employer's primary and direct liability under article 1903 of the
Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica
Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos
y comprende a diferentes personas. Asi, existe una responsabilidad civil
propiamente dicha, que en ningun casl lleva aparejada responsabilidad
criminal alguna, y otra que es consecuencia indeclinable de la penal
que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and
comprises different persons. Thus, there is a civil responsibility, properly
speaking, which in no case carries with it any criminal responsibility, and
another which is a necessary consequence of the penal liability as a
result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had
been a collision between two trains belonging respectively to the Ferrocarril
Cantabrico and the Ferrocarril del Norte. An employee of the latter had been
prosecuted in a criminal case, in which the company had been made a party as
subsidiarily responsible in civil damages. The employee had been acquitted in
the criminal case, and the employer, the Ferrocarril del Norte, had also been
exonerated. The question asked was whether the Ferrocarril Cantabrico could
still bring a civil action for damages against the Ferrocarril del Norte. Maura's
opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp.
511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de
los hechos, todavia menos parece sostenible que exista cosa
juzgada acerca de la obligacion civil de indemnizar los quebrantos y
menoscabos inferidos por el choque de los trenes. El titulo en que se
funda la accion para demandar el resarcimiento, no puede confundirse
con las responsabilidades civiles nacidas de delito, siquiera exista en
este, sea el cual sea, una culpa rodeada de notas agravatorias que
motivan sanciones penales, mas o menos severas. La lesion causada

por delito o falta en los derechos civiles, requiere restituciones,

reparaciones o indemnizaciones, que cual la pena misma ataen al
orden publico; por tal motivo vienen encomendadas, de ordinario, al
Ministerio Fiscal; y claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa procurar el ya
conseguido desagravio; pero esta eventual coincidencia de los efectos,
no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que
no vendrian a cuento y que tiene otro regimen), dimanan, segun el
articulo 1902 del Codigo Civil, de toda accion u omision, causante de
daos o perjuicios, en que intervenga culpa o negligencia. Es trivial que
acciones semejantes son ejercitadas ante los Tribunales de lo civil
cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los
asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al
espiritu y a los fines sociales y politicos del mismo, desenvuelven y
ordenan la materia de responsabilidades civiles nacidas de delito, en
terminos separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedentes legislativos del Corpus
Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la
de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso
y es necesaria una de las diferenciaciones que en el tal paralelo se
notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo
las responsabilidades civiles, entre los que sean por diversos conceptos
culpables del delito o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los delincuentes; pero
con caracter subsidiario, o sea, segun el texto literal, en defecto de los
que sean responsables criminalmente. No coincide en ello el Codigo
Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo
anterior es exigible, no solo por los actos y omisiones propios, sino por
los de aquellas personas de quienes se debe responder; personas en la
enumeracion de las cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con
ocasion de sus funciones. Por esto acontece, y se observa en la
jurisprudencia, que las empresas, despues de intervenir en las causas
criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y
aisladamente, cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando
verdadero postulado de nuestro regimen judicial la separacion entre
justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros
normas de fondo en distintos cuerpos legales, y diferentes modos de

proceder, habiendose, por aadidura, abstenido de asistir al juicio

criminal la Compaia del Ferrocarril Cantabrico, que se reservo ejercitar
sus acciones, parece innegable que la de indemnizacion por los daos
y perjuicios que le irrogo el choque, no estuvo sub judice ante el
Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al
pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no
hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion
quedaba legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se
redobla el motivo para la obligacion civil ex lege, y se patentiza mas y
mas que la accion para pedir su cumplimiento permanece incolume,
extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it
seems less tenable that there should beres judicata with regard to the
civil obligation for damages on account of the losses caused by the
collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a crime,
because there exists in the latter, whatever each nature,
a culpa surrounded with aggravating aspects which give rise to penal
measures that are more or less severe. The injury caused by a felony or
misdemeanor upon civil rights requires restitutions, reparations, or
indemnifications which, like the penalty itself, affect public order; for this
reason, they are ordinarily entrusted to the office of the prosecuting
attorney; and it is clear that if by this means the losses and damages
are repaired, the injured party no longer desires to seek another relief;
but this coincidence of effects does not eliminate the peculiar nature of
civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual
faults which are not pertinent and belong to another scope) are derived,
according to article 1902 of the Civil Code, from every act or omission
causing losses and damages in which culpa or negligence intervenes. It
is unimportant that such actions are every day filed before the civil
courts without the criminal courts interfering therewith. Articles 18 to 21
and 121 to 128 of the Penal Code, bearing in mind the spirit and the
social and political purposes of that Code, develop and regulate the
matter of civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana, in
accordance with legislative precedent of theCorpus Juris. It would be
unwarranted to make a detailed comparison between the former
provisions and that regarding the obligation to indemnify on account of
civil culpa; but it is pertinent and necessary to point out to one of such
differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way
the civil responsibilities among those who, for different reasons, are
guilty of felony or misdemeanor, make such civil responsibilities
applicable to enterprises and establishments for which the guilty parties
render service, but with subsidiary character, that is to say, according to
the wording of the Penal Code, in default of those who are criminally
responsible. In this regard, the Civil Code does not coincide because
article 1903 says: "The obligation imposed by the next preceding article
is demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the persons
enumerated are the subordinates and employees of establishments or
enterprises, either for acts during their service or on the occasion of
their functions. It is for this reason that it happens, and it is so observed
in judicial decisions, that the companies or enterprises, after taking part
in the criminal cases because of their subsidiary civil responsibility by
reason
of
the
crime,
are
sued
and
sentenced directly and separately with regard to the obligation, before
the civil courts.
Seeing that the title of this obligation is different, and the separation
between punitive justice and the civil courts being a true postulate of our
judicial system, so that they have different fundamental norms in
different codes, as well as different modes of procedure, and inasmuch
as the Compaa del Ferrocarril Cantabrico has abstained from taking
part in the criminal case and has reserved the right to exercise its
actions, it seems undeniable that the action for indemnification for the
losses and damages caused to it by the collision was not sub
judice before the Tribunal del Jurado, nor was it the subject of a
sentence, but it remained intact when the decision of March 21 was
rendered. Even if the verdict had not been that of acquittal, it has
already been shown that such action had been legitimately reserved till
after the criminal prosecution; but because of the declaration of the nonexistence of the felony and the non-existence of the responsibility
arising from the crime, which was the sole subject matter upon which
the Tribunal del Juradohad jurisdiction, there is greater reason for the
civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code,
on which the Spanish Civil Code is largely based and whose provisions
on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil
Code, says, referring to article 1384 of the French Civil Code which corresponds
to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for
another), without including the author of the act. The action against the
principal is accessory in the sense that it implies the existence of a

prejudicial act committed by the employee, but it is not subsidiary in the

sense that it can not be instituted till after the judgment against the
author of the act or at least, that it is subsidiary to the principal action;
the action for responsibility (of the employer) is in itself a principal
action. (Laurent, Principles of French Civil Law, Spanish translation, Vol.
20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430),
declares that the responsibility of the employer is principal and not subsidiary.
He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las
acciones u omisiones de aquellas personas por las que se debe
responder, es subsidiaria? es principal? Para contestar a esta pregunta
es necesario saber, en primer lugar, en que se funda el precepto legal.
Es que realmente se impone una responsabilidad por una falta ajena?
Asi parece a primera vista; pero semejante afirmacion seria contraria a
la justicia y a la maxima universal, segun la que las faltas son
personales, y cada uno responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con ocasion de un delito o
culpa, pero no por causa de ellos, sino por causa del causi delito, esto
es, de la imprudencia o de la negligencia del padre, del tutor, del dueo
o director del establecimiento, del maestro, etc. Cuando cualquiera de
las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un dao, la ley
presume que el padre, el tutor, el maestro, etc., han cometido una falta
de negligencia para prevenir o evitar el dao. Esta falta es la que la ley
castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la
apariencia; en realidad la responsabilidad se exige por un hecho propio.
La idea de que esa responsabilidad sea subsidiaria es, por lo tanto,
completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts
or omissions of those persons for who one is responsible, subsidiary or
principal? In order to answer this question it is necessary to know, in the
first place, on what the legal provision is based. Is it true that there is a
responsibility for the fault of another person? It seems so at first sight;
but such assertion would be contrary to justice and to the universal
maxim that all faults are personal, and that everyone is liable for those
faults that can be imputed to him. The responsibility in question is
imposed on the occasion of a crime or fault, but not because of the
same, but because of the cuasi-delito, that is to say, the imprudence or
negligence of the father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that
the father, guardian, teacher, etc. have committed an act of negligence

in not preventing or avoiding the damage. It is this fault that is

condemned by the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the responsibility exacted
is for one's own act. The idea that such responsibility is subsidiary is,
therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al
Codigo Civil Espaol," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de
su propia culpa, doctrina del articulo 1902; mas por excepcion, se
responde de la ajena respecto de aquellas personas con las que media
algun nexo o vinculo, que motiva o razona la responsabilidad. Esta
responsabilidad, es directa o es subsidiaria? En el orden penal, el
Codigo de esta clase distingue entre menores e incapacitados y los
demas, declarando directa la primera (articulo 19) y subsidiaria la
segunda (articulos 20 y 21); pero en el orden civil, en el caso del
articulo 1903, ha de entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one
is liable only for his own faults, this being the doctrine of article 1902;
but, by exception, one is liable for the acts of those persons with whom
there is a bond or tie which gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of the penal law, the
Penal Code distinguishes between minors and incapacitated persons on
the one hand, and other persons on the other, declaring that the
responsibility for the former is direct (article 19), and for the latter,
subsidiary (articles 20 and 21); but in the scheme of the civil law, in the
case of article 1903, the responsibility should be understood as direct,
according to the tenor of that articles, for precisely it imposes
responsibility "for the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has
upheld the principles above set forth: that a quasi-delict or culpa extracontractual is a separate and distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an employer is, under article
1903 of the Civil Code, primarily and directly responsible for the negligent acts of
his employee.
One of the most important of those Spanish decisions is that of October 21,
1910. In that case, Ramon Lafuente died as the result of having been run over
by a street car owned by the "compaia Electric Madrilea de Traccion." The
conductor was prosecuted in a criminal case but he was acquitted. Thereupon,
the widow filed a civil action against the street car company, paying for damages

in the amount of 15,000 pesetas. The lower court awarded damages; so the
company appealed to the Supreme Tribunal, alleging violation of articles 1902
and 1903 of the Civil Code because by final judgment the non-existence of fault
or negligence had been declared. The Supreme Court of Spain dismissed the
appeal, saying:

violating said legal provisions, in relation with article 116 of the Law of
Criminal Procedure, strictly followed the same, without invading
attributes which are beyond its own jurisdiction, and without in any way
contradicting the decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:

Considerando que el primer motivo del recurso se funda en el

equivocado supuesto de que el Tribunal a quo, al condonar a la
compaia Electrica Madrilea al pago del dao causado con la muerte
de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de
la sentencia absolutoria deictada en la causa criminal que se siguio por
el mismo hecho, cuando es lo cierto que de este han conocido las dos
jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao
dentro de los limites de su competencia que el hecho de que se trata no
era constitutivo de delito por no haber mediado descuido o negligencia
graves, lo que no excluye, siendo este el unico fundamento del fallo
absolutorio, el concurso de la culpa o negligencia no califacadas, fuente
de obligaciones civiles segun el articulo 1902 del Codigo, y que
alcanzan, segun el 1903, netre otras perosnas, a los Directores de
establecimientos o empresas por los daos causados por sus
dependientes en determinadas condiciones, es manifesto que la de lo
civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compaia recurrente a la indemnizacion del dao
causado por uno de sus empleados, lejos de infringer los mencionados
textos, en relacion con el articulo 116 de la Ley de Enjuciamiento
Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones
ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo
recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken
supposition that the trial court, in sentencing the Compaia Madrilea to
the payment of the damage caused by the death of Ramon Lafuente
Izquierdo, disregards the value and juridical effects of the sentence of
acquittal rendered in the criminal case instituted on account of the same
act, when it is a fact that the two jurisdictions had taken cognizance of
the same act in its different aspects, and as the criminal jurisdiction
declared within the limits of its authority that the act in question did not
constitute a felony because there was no grave carelessness or
negligence, and this being the only basis of acquittal, it does no exclude
the co-existence of fault or negligence which is not qualified, and is a
source of civil obligations according to article 1902 of the Civil Code,
affecting, in accordance with article 1903, among other persons, the
managers of establishments or enterprises by reason of the damages
caused by employees under certain conditions, it is manifest that the
civil jurisdiccion in taking cognizance of the same act in this latter
aspect and in ordering the company, appellant herein, to pay an
indemnity for the damage caused by one of its employees, far from

First. That the conductor was not sued in a civil case, either separately or with
the street car company. This is precisely what happens in the present case: the
driver, Fontanilla, has not been sued in a civil action, either alone or with his
employer.
Second. That the conductor had been acquitted of grave criminal negligence,
but the Supreme Tribunal of Spain said that this did not exclude the co-existence
of fault or negligence, which is not qualified, on the part of the conductor, under
article 1902 of the Civil Code. In the present case, the taxi driver was found
guilty of criminal negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been held primarily liable for
civil damages, and Barredo would have been held subsidiarily liable for the
same. But the plaintiffs are directly suing Barredo, on his primary responsibility
because of his own presumed negligence which he did not overcome
under article 1903. Thus, there were two liabilities of Barredo: first, the
subsidiary one because of the civil liability of the taxi driver arising from the
latter's criminal negligence; and, second, Barredo's primary liability as an
employer under article 1903. The plaintiffs were free to choose which course to
take, and they preferred the second remedy. In so doing, they were acting within
their rights. It might be observed in passing, that the plaintiff choose the more
expeditious and effective method of relief, because Fontanilla was either in
prison, or had just been released, and besides, he was probably without
property which might be seized in enforcing any judgment against him for
damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the
employer was held liable civilly, notwithstanding the acquittal of the employee
(the conductor) in a previous criminal case, with greater reason should Barredo,
the employer in the case at bar, be held liable for damages in a civil suit filed
against him because his taxi driver had been convicted. The degree of
negligence of the conductor in the Spanish case cited was less than that of the
taxi driver, Fontanilla, because the former was acquitted in the previous criminal
case while the latter was found guilty of criminal negligence and was sentenced
to an indeterminate sentence of one year and one day to two years of prision
correccional.
(See also Sentence of February 19, 1902, which is similar to the one above
quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an
action was brought against a railroad company for damages because the station
agent, employed by the company, had unjustly andfraudulently, refused to
deliver certain articles consigned to the plaintiff. The Supreme Court of Spain
held that this action was properly under article 1902 of the Civil Code, the court
saying:
Considerando que la sentencia discutida reconoce, en virtud de los
hechos que consigna con relacion a las pruebas del pleito: 1., que las
expediciones facturadas por la compaia ferroviaria a la consignacion
del actor de las vasijas vacias que en su demanda relacionan tenian
como fin el que este las devolviera a sus remitentes con vinos y
alcoholes; 2., que llegadas a su destino tales mercanias no se
quisieron entregar a dicho consignatario por el jefe de la estacion sin
motivo justificado y con intencion dolosa, y 3., que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le
originaron daos y perjuicios en cantidad de bastante importancia como
expendedor al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir los pedidos
que se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro
motivos que integran este recurso, porque la demanda inicial del pleito
a que se contrae no contiene accion que nazca del incumplimiento del
contrato de transporte, toda vez que no se funda en el retraso de la
llegada de las mercancias ni de ningun otro vinculo contractual entre las
partes contendientes, careciendo, por tanto, de aplicacion el articulo
371 del Codigo de Comercio, en que principalmente descansa el fallo
recurrido, sino que se limita a pedir la reparaction de los daos y
perjuicios producidos en el patrimonio del actor por la injustificada y
dolosa negativa del porteador a la entrega de las mercancias a su
nombre consignadas, segun lo reconoce la sentencia, y cuya
responsabilidad esta claramente sancionada en el articulo 1902 del
Codigo Civil, que obliga por el siguiente a la Compaia demandada
como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the
facts which it declares, in relation to the evidence in the case: (1) that
the invoice issued by the railroad company in favor of the plaintiff
contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that
when the said merchandise reached their destination, their delivery to
the consignee was refused by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of these goods
when they were demanded by the plaintiff caused him losses and
damages of considerable importance, as he was a wholesale vendor of

wines and liquors and he failed to realize the profits when he was
unable to fill the orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the four
assignments of error, as the original complaint did not contain any cause
of action arising from non-fulfillment of a contract of transportation,
because the action was not based on the delay of the goods nor on any
contractual relation between the parties litigant and, therefore, article
371 of the Code of Commerce, on which the decision appealed from is
based, is not applicable; but it limits to asking for reparation for losses
and damages produced on the patrimony of the plaintiff on account of
the unjustified and fraudulent refusal of the carrier to deliver the goods
consigned to the plaintiff as stated by the sentence, and the carrier's
responsibility is clearly laid down in article 1902 of the Civil Code which
binds, in virtue of the next article, the defendant company, because the
latter is connected with the person who caused the damage by relations
of economic character and by administrative hierarchy. (Emphasis
supplied.)
The above case is pertinent because it shows that the same act may come
under both the Penal Code and the Civil Code. In that case, the action of the
agent was unjustified and fraudulent and therefore could have been the subject
of a criminal action. And yet, it was held to be also a proper subject of a civil
action under article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362365 [year 1907]), the trial court awarded damages to the plaintiff, a laborer of the
defendant, because the latter had negligently failed to repair a tramway in
consequence of which the rails slid off while iron was being transported, and
caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that
the necessary conclusion from these collated laws is that the remedy for
injuries through negligence lies only in a criminal action in which the
official criminally responsible must be made primarily liable and his
employer held only subsidiarily to him. According to this theory the
plaintiff should have procured the arrest of the representative of the
company accountable for not repairing the track, and on his prosecution
a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this
subject. Article 1093 of the Civil Code makes obligations arising from

faults or negligence not punished by the law, subject to the provisions of

Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the
damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is
demandable, not only for personal acts and omissions, but also
for those of the persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable
for the damages caused by the minors who live with them.
xxx

xxx

xxx

"Owners or directors of an establishment or enterprise are

equally liable for the damages caused by their employees in the
service of the branches in which the latter may be employed or
in the performance of their duties.
xxx

xxx

xxx

"The liability referred to in this article shall cease when the

persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be
sufficient to point out that nowhere in our general statutes is the
employer penalized for failure to provide or maintain safe appliances for
his workmen. His obligation therefore is one 'not punished by the laws'
and falls under civil rather than criminal jurisprudence. But the answer
may be a broader one. We should be reluctant, under any conditions, to
adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of
effect, would shut out litigants against their will from the civil courts,
would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood alone, such a
construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain
(Ley de Enjuiciamiento Criminal), which, though never in actual force in
these Islands, was formerly given a suppletory or explanatory effect.
Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was

pending the civil was suspended. According to article 112, the penal
action once started, the civil remedy should be sought therewith, unless
it had been waived by the party injured or been expressly reserved by
him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced only on private
complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried much further, but the
citation of these articles suffices to show that the civil liability was not
intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law. Where an individual is
civilly liable for a negligent act or omission, it is not required that the
injured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the
civil right.
Under article 20 of the Penal Code the responsibility of an employer
may be regarded as subsidiary in respect of criminal actions against his
employees only while they are in process of prosecution, or in so far as
they determine the existence of the criminal act from which liability
arises, and his obligation under the civil law and its enforcement in the
civil courts is not barred thereby unless by the election of the injured
person. Inasmuch as no criminal proceeding had been instituted,
growing our of the accident in question, the provisions of the Penal
Code can not affect this action. This construction renders it unnecessary
to finally determine here whether this subsidiary civil liability in penal
actions has survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in force in
the Philippines.
The difficulty in construing the articles of the code above cited in this
case appears from the briefs before us to have arisen from the
interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses
in articles 568 and 590 of the Penal Code. It has been shown that the
liability of an employer arising out of his relation to his employee who is
the offender is not to be regarded as derived from negligence punished
by the law, within the meaning of articles 1902 and 1093. More than this,
however, it cannot be said to fall within the class of acts unpunished by
the law, the consequence of which are regulated by articles 1902 and
1903 of the Civil Code. The acts to which these articles are applicable
are understood to be those not growing out of pre-existing duties of the
parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi contract, then breaches
of those duties are subject to articles 1101, 1103, and 1104 of the same

code. A typical application of this distinction may be found in the

consequences of a railway accident due to defective machinery supplied
by the employer. His liability to his employee would arise out of the
contract of employment, that to the passengers out of the contract for
passage, while that to the injured bystander would originate in the
negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9year-old child Salvador Bona brought a civil action against Moreta to recover
damages resulting from the death of the child, who had been run over by an
automobile driven and managed by the defendant. The trial court rendered
judgment requiring the defendant to pay the plaintiff the sum of P1,000 as
indemnity: This Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of
Solana Street, had to stop his auto before crossing Real Street,
because he had met vehicles which were going along the latter street or
were coming from the opposite direction along Solana Street, it is to be
believed that, when he again started to run his auto across said Real
Street and to continue its way along Solana Street northward, he should
have adjusted the speed of the auto which he was operating until he
had fully crossed Real Street and had completely reached a clear way
on Solana Street. But, as the child was run over by the auto precisely at
the entrance of Solana Street, this accident could not have occurred if
the auto had been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering Solana
Street, in a northward direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right to that on the left,
and if the accident had occurred in such a way that after the automobile
had run over the body of the child, and the child's body had already
been stretched out on the ground, the automobile still moved along a
distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed
without the defendant having blown the horn. If these precautions had
been taken by the defendant, the deplorable accident which caused the
death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of the
child was punishable by the Penal Code. Here is therefore a clear instance of
the same act of negligence being a proper subject-matter either of a criminal
action with its consequent civil liability arising from a crime or of an entirely
separate and independent civil action for fault or negligence under article 1902
of the Civil Code. Thus, in this jurisdiction, the separate individually of a cuasidelito or culpa aquiliana under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could

have been prosecuted and convicted in a criminal case and for which, after such
a conviction, he could have been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine.
In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54
Phil., 327, the parents of the five-year-old child, Purificacion Bernal, brought a
civil action to recover damages for the child's death as a result of burns caused
by the fault and negligence of the defendants. On the evening of April 10, 1925,
the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso
with her daughter Purificacion Bernal had come from another municipality to
attend the same. After the procession the mother and the daughter with two
others were passing along Gran Capitan Street in front of the offices of the
Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an
automobile appeared from the opposite direction. The little girl, who was slightly
ahead of the rest, was so frightened by the automobile that she turned to run,
but unfortunately she fell into the street gutter where hot water from the electric
plant was flowing. The child died that same night from the burns. The trial courts
dismissed the action because of the contributory negligence of the plaintiffs. But
this Court held, on appeal, that there was no contributory negligence, and
allowed the parents P1,000 in damages from J. V. House who at the time of the
tragic occurrence was the holder of the franchise for the electric plant. This
Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined,
he nevertheless was led to order the dismissal of the action because of
the contributory negligence of the plaintiffs. It is from this point that a
majority of the court depart from the stand taken by the trial judge. The
mother and her child had a perfect right to be on the principal street of
Tacloban, Leyte, on the evening when the religious procession was
held. There was nothing abnormal in allowing the child to run along a
few paces in advance of the mother. No one could foresee the
coincidence of an automobile appearing and of a frightened child
running and falling into a ditch filled with hot water. The doctrine
announced in the much debated case of Rakes vs. Atlantic Gulf and
Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code
must again be enforced. The contributory negligence of the child and
her mother, if any, does not operate as a bar to recovery, but in its
strictest sense could only result in reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied
article 1902 of the Civil Code. It is thus that although J. V. House could have
been criminally prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault
or negligence under article 1902 of the Civil Code.

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for
damages for the death of the plaintiff's daughter alleged to have been caused by
the negligence of the servant in driving an automobile over the child. It appeared
that the cause of the mishap was a defect in the steering gear. The defendant
Leynes had rented the automobile from the International Garage of Manila, to be
used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes
was ordered by the lower court to pay P1,000 as damages to the plaintiff. On
appeal this Court reversed the judgment as to Leynes on the ground that he had
shown that the exercised the care of a good father of a family, thus overcoming
the presumption of negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised the
care and diligence of a good father of a family. He obtained the machine
from a reputable garage and it was, so far as appeared, in good
condition. The workmen were likewise selected from a standard garage,
were duly licensed by the Government in their particular calling, and
apparently thoroughly competent. The machine had been used but a
few hours when the accident occurred and it is clear from the evidence
that the defendant had no notice, either actual or constructive, of the
defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of
negligence, but also provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part of the
matter or employer either in the selection of the servant or employee, or
in supervision over him after the selection, or both; and (2) that
presumption is juris tantum and not juris et de jure, and consequently,
may be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has
exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs.
Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint alleged that the

defendant's servant had so negligently driven an automobile, which was

operated by defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying article 1903 and
following the rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the
owner or director of a business or enterprise and the negligent acts are
committed while the servant is engaged in his master's employment as
such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was
Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was
an action for damages brought by Cuison for the death of his seven-year-old son
Moises. The little boy was on his way to school with his sister Marciana. Some
large pieces of lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were
working for Ora, an employee of defendant Norton & Harrison Co., pleaded
guilty to the crime of homicide through reckless negligence and were sentenced
accordingly. This Court, applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the
relationship of pater familias. This theory bases the liability of the master
ultimately on his own negligence and not on that of his servant.
(Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila
Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517
(year 1930) the plaintiff brought an action for damages for the demolition of its
wharf, which had been struck by the steamer Helen C belonging to the
defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf
collapsed was a duly licensed captain, authorized to navigate and direct
a vessel of any tonnage, and that the appellee contracted his services
because of his reputation as a captain, according to F. C. Cadwallader.
This being so, we are of the opinion that the presumption of liability
against the defendant has been overcome by the exercise of the care
and diligence of a good father of a family in selecting Captain Lasa, in
accordance with the doctrines laid down by this court in the cases cited
above, and the defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is
negatived by the six cases above set forth. He is, on the authority of these
cases, primarily and directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We
study first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A
collision between a truck of the City of Manila and a street car of the Manila
Electric Co. took place on June 8, 1925. The truck was damaged in the amount
of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of
damage to property and slight injuries through reckless imprudence. He was
found guilty and sentenced to pay a fine of P900, to indemnify the City of Manila
for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to
collect the indemnity from Eustaquio, the City of Manila filed an action against
the Manila Electric Company to obtain payment, claiming that the defendant was
subsidiarily liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower court
rendered judgment in favor of the plaintiff. This Court held, in part, that this case
was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the
conclusion that the provisions of the Penal Code govern. The Penal
Code in easily understandable language authorizes the determination of
subsidiary liability. The Civil Code negatives its application by providing
that civil obligations arising from crimes or misdemeanors shall be
governed by the provisions of the Penal Code. The conviction of the
motorman was a misdemeanor falling under article 604 of the Penal
Code. The act of the motorman was not a wrongful or negligent act or
omission not punishable by law. Accordingly, the civil obligation
connected up with the Penal Code and not with article 1903 of the Civil
Code. In other words, the Penal Code affirms its jurisdiction while the
Civil Code negatives its jurisdiction. This is a case of criminal negligence
out of which civil liability arises and not a case of civil negligence.
xxx

xxx

xxx

Our deduction, therefore, is that the case relates to the Penal Code and
not to the Civil Code. Indeed, as pointed out by the trial judge, any
different ruling would permit the master to escape scot-free by simply
alleging and proving that the master had exercised all diligence in the
selection and training of its servants to prevent the damage. That would
be a good defense to a strictly civil action, but might or might not be to a
civil action either as a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said further that the
statements here made are offered to meet the argument advanced
during our deliberations to the effect that article 0902 of the Civil Code
should be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition,
because the Court of Appeals based its decision in the present case on the
defendant's primary responsibility under article 1903 of the Civil Code and not
on his subsidiary liability arising from Fontanilla's criminal negligence. In other

words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on
an entirely different theory, which is the subsidiary liability of an employer arising
from a criminal act of his employee, whereas the foundation of the decision of
the Court of Appeals in the present case is the employer's primary liability under
article 1903 of the Civil Code. We have already seen that this is a proper and
independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the
defendant. A motorman in the employ of the Manila Electric Company had been
convicted o homicide by simple negligence and sentenced, among other things,
to pay the heirs of the deceased the sum of P1,000. An action was then brought
to enforce the subsidiary liability of the defendant as employer under the Penal
Code. The defendant attempted to show that it had exercised the diligence of a
good father of a family in selecting the motorman, and therefore claimed
exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold,
(1) that the exemption from civil liability established in article 1903 of the
Civil Code for all who have acted with the diligence of a good father of a
family, is not applicable to the subsidiary civil liability provided in article
20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant
case, because the action there had for its purpose the enforcement of the
defendant's subsidiary liability under the Penal Code, while in the case at bar,
the plaintiff's cause of action is based on the defendant's primary and direct
responsibility under article 1903 of the Civil Code. In fact, the above case
destroys the defendant's contention because that decision illustrates the
principle that the employer's primary responsibility under article 1903 of the Civil
Code is different in character from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has
failed to recognize the distinction between civil liability arising from a crime,
which is governed by the Penal Code, and the responsibility for cuasidelito or culpa aquiliana under the Civil Code, and has likewise failed to give the
importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That
case need not be set forth. Suffice it to say that the question involved was also
civil liability arising from a crime. Hence, it is as inapplicable as the two cases
above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasidelitos or culpa aquiliana under the Civil Code. Specifically they show that there
is a distinction between civil liability arising from criminal negligence (governed
by the Penal Code) and responsibility for fault or negligence under articles 1902

to 1910 of the Civil Code, and that the same negligent act may produce either a
civil liability arising from a crime under the Penal Code, or a separate
responsibility for fault or negligence under articles 1902 to 1910 of the Civil
Code. Still more concretely, the authorities above cited render it inescapable to
conclude that the employer in this case the defendant-petitioner is
primarily and directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines
that have been little understood in the past, it might not be inappropriate to
indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but
also simple negligence. If we were to hold that articles 1902 to 1910 of the Civil
Code refer only to fault or negligence not punished by law, according to the
literal import of article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual life. Death or
injury to persons and damage to property through any degree of negligence
even the slightest would have to be indemnified only through the principle of
civil liability arising from a crime. In such a state of affairs, what sphere would
remain for cuasi-delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and anomalous. Nor
are we, in the interpretation of the laws, disposed to uphold the letter that killeth
rather than the spirit that giveth life. We will not use the literal meaning of the law
to smother and render almost lifeless a principle of such ancient origin and such
full-grown development as culpa aquiliana or cuasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt, but can
be proved by a preponderance of evidence. In such cases, the defendant can
and should be made responsible in a civil action under articles 1902 to 1910 of
the Civil Code. Otherwise, there would be many instances of unvindicated civil
wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective,
and that is, to sue the driver and exhaust his (the latter's) property first, would be
tantamount to compelling the plaintiff to follow a devious and cumbersome
method of obtaining relief. True, there is such a remedy under our laws, but
there is also a more expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the Civil Code. Our view of
the law is more likely to facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay, it being a matter
of common knowledge that professional drivers of taxis and similar public
conveyance usually do not have sufficient means with which to pay damages.

Why, then, should the plaintiff be required in all cases to go through this
roundabout, unnecessary, and probably useless procedure? In construing the
laws, courts have endeavored to shorten and facilitate the pathways of right and
justice.
At this juncture, it should be said that the primary and direct responsibility of
employers and their presumed negligence are principles calculated to protect
society. Workmen and employees should be carefully chosen and supervised in
order to avoid injury to the public. It is the masters or employers who principally
reap the profits resulting from the services of these servants and employees. It
is but right that they should guarantee the latter's careful conduct for the
personnel and patrimonial safety of others. As Theilhard has said, "they should
reproach themselves, at least, some for their weakness, others for their poor
selection and all for their negligence." And according to Manresa, "It is much
more equitable and just that such responsibility should fall upon the principal or
director who could have chosen a careful and prudent employee, and not upon
the injured person who could not exercise such selection and who used such
employee because of his confidence in the principal or director." (Vol. 12, p. 622,
2nd Ed.) Many jurists also base this primary responsibility of the employer on
the principle of representation of the principal by the agent. Thus, Oyuelos says
in the work already cited (Vol. 7, p. 747) that before third persons the employer
and employee "vienen a ser como una sola personalidad, por refundicion de la
del dependiente en la de quien le emplea y utiliza." ("become as one personality
by the merging of the person of the employee in that of him who employs and
utilizes him.") All these observations acquire a peculiar force and significance
when it comes to motor accidents, and there is need of stressing and
accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code
and the Civil Code on this subject, which has given rise to the overlapping or
concurrence of spheres already discussed, and for lack of understanding of the
character and efficacy of the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the civil responsibility
arising from a crime, forgetting that there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this habitual method is allowed by
our laws, it has nevertheless rendered practically useless and nugatory the more
expeditious and effective remedy based onculpa aquiliana or culpa extracontractual. In the present case, we are asked to help perpetuate this usual
course. But we believe it is high time we pointed out to the harm done by such
practice and to restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused
the stream of quasi-delict or culpa aquiliana to flow on its own natural channel,
so that its waters may no longer be diverted into that of a crime under the Penal
Code. This will, it is believed, make for the better safeguarding of private rights
because it re-establishes an ancient and additional remedy, and for the further
reason that an independent civil action, not depending on the issues, limitations

and results of a criminal prosecution, and entirely directed by the party wronged
or his counsel, is more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is
hereby affirmed, with costs against the defendant-petitioner.

G.R. No. L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused
by an automobile driven by the defendant. From a judgment of the Court of First
Instance of the Province of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the plaintiff was riding on his pony
over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of
about ten or twelve miles per hour. As the defendant neared the bridge he saw a
horseman on it and blew his horn to give warning of his approach. He continued
his course and after he had taken the bridge he gave two more successive
blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the rapidity
of the approach, he pulled the pony closely up against the railing on the right
side of the bridge instead of going to the left. He says that the reason he did this
was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80
meters. As the automobile approached, the defendant guided it toward his left,
that being the proper side of the road for the machine. In so doing the defendant
assumed that the horseman would move to the other side. The pony had not as
yet exhibited fright, and the rider had made no sign for the automobile to stop.
Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach
directly toward the horse without diminution of speed. When he had gotten quite
near, there being then no possibility of the horse getting across to the other side,
the defendant quickly turned his car sufficiently to the right to escape hitting the
horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the railing.

In so doing, it as struck on the hock of the left hind leg by the flange of the car
and the limb was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that when the
accident occurred the free space where the pony stood between the automobile
and the railing of the bridge was probably less than one and one half meters. As
a result of its injuries the horse died. The plaintiff received contusions which
caused temporary unconsciousness and required medical attention for several
days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of negligence
such as gives rise to a civil obligation to repair the damage done; and we are of
the opinion that he is so liable. As the defendant started across the bridge, he
had the right to assume that the horse and the rider would pass over to the
proper side; but as he moved toward the center of the bridge it was
demonstrated to his eyes that this would not be done; and he must in a moment
have perceived that it was too late for the horse to cross with safety in front of
the moving vehicle. In the nature of things this change of situation occurred
while the automobile was yet some distance away; and from this moment it was
not longer within the power of the plaintiff to escape being run down by going to
a place of greater safety. The control of the situation had then passed entirely to
the defendant; and it was his duty either to bring his car to an immediate stop or,
seeing that there were no other persons on the bridge, to take the other side and
pass sufficiently far away from the horse to avoid the danger of collision. Instead
of doing this, the defendant ran straight on until he was almost upon the horse.
He was, we think, deceived into doing this by the fact that the horse had not yet
exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here
confronted him. When the defendant exposed the horse and rider to this danger
he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act
use that 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.
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. 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. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have foreseen that an effect
harmful to another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think
that negligence is clearly established. A prudent man, placed in the position of
the defendant, would in our opinion, have recognized that the course which he
was pursuing was fraught with risk, and would therefore have foreseen harm to
the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such
case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances
the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held that
while contributory negligence on the part of the person injured did not constitute
a bar to recovery, it could be received in evidence to reduce the damages which
would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which were hauled
along a narrow track. At certain spot near the water's edge the track gave way
by reason of the combined effect of the weight of the car and the insecurity of
the road bed. The car was in consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared in evidence that the accident
was due to the effects of the typhoon which had dislodged one of the supports of
the track. The court found that the defendant company was negligent in having
failed to repair the bed of the track and also that the plaintiff was, at the moment

of the accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the track
in proper repair nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen the
defendant's negligence in that case consisted in an omission only. The liability of
the company arose from its responsibility for the dangerous condition of its track.
In a case like the one now before us, where the defendant was actually present
and operating the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the respective parties in order
to apportion the damage according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was in this case the
immediate and determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of the
action had been previously adjudicated in the court of a justice of the peace. In
this connection it appears that soon after the accident in question occurred, the
plaintiff caused criminal proceedings to be instituted before a justice of the
peace charging the defendant with the infliction of serious injuries (lesiones
graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of
the defendant at the trial upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the question of his civil liability
arising from negligence -- a point upon which it is unnecessary to express an
opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be
reversed, and judgment is her rendered that the plaintiff recover of the
defendant the sum of two hundred pesos (P200), with costs of other instances.
The sum here awarded is estimated to include the value of the horse, medical
expenses of the plaintiff, the loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the date of this recovery. The other
damages claimed by the plaintiff are remote or otherwise of such character as
not to be recoverable. So ordered.

G.R. No. L-29889

May 31, 1979

VICTORINO CUSI and PILAR POBRE, plaintiffs-appellees,

vs.
PHILIPPINE NATIONAL RAILWAYS, defendant-appellant.

As enumerated in the Medical Certificate (Exh. "J"), Mrs. Cusi suffered the
following:
(1) Fracture open middle third humerus right
(2) Fracture mandible right paramedian

Leopoldo M. Abellera for appellant.

(3) Fracture fibula left distal
Francisco V. Marasigan for appellees.
(4) Concussion, cerebral
GUERRERO, J.:
Direct appeal from the decision of the Court of First Instance of Rizal ordering
defendant-appellant to indemnify the plaintiffs- appellees in the total amount of
Two Hundred Thirty-Nine Thousand and Six Hundred Forty-Eight Pesos, and
Seventy-Two Centavos (P239,648.72) for injuries received in a collision caused
by the gross negligence of defendant-appellant, plus Ten Thousand Pesos
(P10,000.00) as attorney's fees and expenses of litigation.
Upon the amended and supplemental complaints for damages filed by plaintiffsappellees, the spouses Victorino Cusi and Pilar Pobre before the Court of First
Instance of Rizal against the Manila Railroad Company, now the Philippine
National Railways and duly answered by the latter and after due hearing. the
following facts appear as undisputed: On the night of October 5, 1963, plaintiffsappellees attended a birthday party inside the United Housing Subdivision in
Paranaque, Rizal. After the party which broke up at about 11 o'clock that
evening, the plaintiffs-appellees proceeded home in their Vauxhall car with
Victorino Cusi at the wheel. Upon reaching the railroad tracks, finding that the
level crossing bar was raised and seeing that there was no flashing red light,
and hearing no whistle from any coming train, Cusi merely slack ened his speed
and proceeded to cross the tracks. At the same time, a train bound for Lucena
traversed the crossing, resulting in a collision between the two. The impact
threw the plaintiffs-appellees out of their car which was smashed. One Benjamin
Franco, who came from the same party and was driving a vehicle right behind
them, rushed to their aid and brought them. to San Juan de Dios Hospital for
emergency treatment. Later, the plaintiffs-appellees were transferred to the
Philippine General Hospital. A week later, Mrs. Cusi transferred to the Manila
Doctors Hospital where Dr. Manuel Rivera, head of the Orthopedic and Fracture
Service of the Philippine General Hospital performed on her a second operation
and continued to treat her until her discharge from the hospital on November 2,
1963. Thereafter, Dr. Rivera treated her as an out-patient until the end of
February, 1964 although by that time the fractured bones had not yet healed.
Mrs. Cusi was also operated on by Dr. Francisco Aguilar, Director of the National
Orthopedic Hospital, in May, 1964 and in August, 1965, after another operation
in her upper body from the chest to the abdomen, she was placed in cast for
some three (3) months and her right arm immobilized by reason of the past

(5) Abrasions,
extremities)

multiple

(face,

head,

lumbosacral

and

(6) Lacerations (2) right temporal

(7) Contusions with hematoma left forehead and parieto
occipital right.
For these injuries, she underwent a total of four surgical opera. petitions in a
period of two years. As a result of the fracture on her right arm, there was a
shortening of about 1 cm. of that arm. She lost the flexibility of her wrist, elbow
and shoulder. Up to the time she took the witness stand in August, 1966, she still
had an intermedullary nail in the bone of her right arm Likewise, Victorino Cusi
suffered brain injuries which affected his speech, memory, sense of hearing and
neck movement. For a long period, he also felt pain all over his body.
Victorino Cusi claimed that prior to the accident he was a successful
businessman the Special Assistant to the Dolor Lopez Enterprises, the
managing partner of Cusi and Rivera Partnership, the manager of his ricemill,
and with substantial investments in other business enterprises. As a result of his
injuries, he was unable to properly attend to his various business undertakings.
On the other hand, his wife, Pilar, was a skilled music and piano teacher. After
the accident, she lost the dexterity of her fingers forcing her to quit her
profession. She also bore ugly scars on several parts of her body, and she
suffered anxiety of a possible miscarriage being then five (5) months pregnant at
the time of the accident.
The defense is centered on the proposition that the gross negligence of
Victorino Cusi was the proximate cause of the collision; that had he made a full
stop before traversing the crossing as required by section 56(a) of Act 3992
(Motor Vehicle Law), he could have seen and heard the approach of the train,
and thus, there would have been no collision.

After a protracted trial, the lower court rendered the decision now subject of the
appeal. Defendant-appellant seeks the reversal of said decision; but should we
affirm the same, that the award be reduced to a reasonable amount.
As the action is predicated on negligence, the New Civil Code 1 making clear
that "whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done the crucial question posed in
the petition at bar is the existence of negligence on the part of defendantappellant as found by the lower court.
1. The question of negligence being one of fact, the lower court's finding of
negligence on the part of the defendant-appellant deserves serious
consideration by the Court. It commands great respect and weight, the reason
being that the trial judge, having the advantage of hearing the parties testify and
of observing their demeanor on the witness stand, is better situated to make
conclusions of facts. Thus, it has been the standing practice of appellate courts
to accord lower court's judgments the presumption of correctness. And unless it
can be shown that error or errors, substantial in character, be shown in the
conclusion arrived at, or that there was abuse in judicial scrutiny, We are bound
by their judgments. On this ground alone We can rest the affirmance of the
judgment appealed from. 2
2. Nor is the result different even if no such presumption were indulged in, that
is, even if We were to resolve whether or not there exist compelling reasons for
an ultimate reversal.
The judicial pronouncement below that the gross negligence of defendantappellant was the proximate cause of the collision has been thoroughly reviewed
by this Court and we fully affirm the same.
Negligence has been defined by Judge Cooley in his work on Torts 3d ed sec.
1324 3 as "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." By such a test, it can
readily be seen that there is no hard and fast rule whereby such degree of care
and vigilance is measured, it is dependent upon the circumstances in which a
person finds himself so situated. All that the law requires is that it is always
incumbent upon a person to use that care and diligence expected of reasonable
men under similar circumstances.
These are the circumstances attendant to the collision. Undisputably, the
warning devices installed at the railroad crossing were manually operated; there
were only 2 shifts of guards provided for the operation thereof one, the 7:00
A.M. to 3:00 P. M. shift, and the other, the 3:00 P.M. to 11:00 P.M. shift. On the
night of the accident, the train for Lucena was on an unscheduled trip after 11:00
P.M. During that precise hour, the warning devices were not operating for no one

attended to them. Also, as observed by the lower court, the locomotive driver did
not blow his whistle, thus: "... he simply sped on without taking an extra
precaution of blowing his whistle from a distance of 50 to 10 meters from the
crossing. That the train was running at full speed is attested to by the fact that
notwithstanding the application of the emergency brakes, the train did not stop
until it reached a distance of around 100 meters."
These facts assessed together show the inadequacy, nay, the absence, of
precautions taken by the defendant-appellant to warn the travelling public of the
impending danger. It is clear to Us that as the signal devices were wholly
manually-operated, there was an urgent need for a flagman or guard to man the
crossing at all times. As it was, the crossing was left unattended to after eleven
o'clock every night and on the night of the accident. We cannot in all reason
justify or condone the act of the defendant-appellant allowing the subject
locomotive to travel through the unattended crossing with inoperative signal
devices, but without sending any of its employees to operate said signal devices
so as to warn oncoming motorists of the approach of one of its locomotives. It is
not surprising therefore that the in operation of the warning devices created a
situation which was misunderstood by the riding public to mean safe passage.
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. 4 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. 5
The set of circumstances surrounding the collision subject of this case is very
much similar to that of Lilius v. Manila Railroad Company, 59 Phil. 758 (1934),
where this Court upheld the lower court's finding of negligence on the part of
defendant locomotive company upon the following facts
... on the part of the defendant company, for not having had on
that occasion any semaphore at the crossing at Dayap to serve
as a warning to passersby of its existence in order that they
might take the necessary precautions before crossing the
railroad; and, on the part of its employees the flagman and
switchman, for not having remained at his post at the crossing
in question to warn passersby of the approaching train; the
station master, for failure to send the said flagman and
switchman to his post on time; and the engineer, for not having
taken the necessary precautions to avoid an accident, in view of
the absence of said flagman and switchman, by slackening his

speed and continuously ringing the bell and blowing the whistle
before arriving at the crossing.
Defendant-appellant rests its defense mainly on Section 56(a) of the Motor
Vehicle Law. Thus:
Section 56(a) Traversing through streets and railroad
crossing, etc, All vehicles moving on the public highways
shall be brought to a full stop before traversing any 'through
street' or railroad crossing. Whenever any such 'through street'
or crossing is so designated and signposted, it shall be unlawful
for the driver of any vehicle to fail to stop within twenty meters
but not less than two and one-half meters from such through
street or railroad crossing.
The defense presupposes that the failure of plaintiffs-appellees to stop before
proceeding to traverse the crossing constitutes contributory negligence, thereby
precluding them from recovering indemnity for their injuries and damages.
The candor of defendant-appellant in interposing such a defense is doubtful. As
seemingly observed by the lower court, the defense, through inadvertence or
deliberateness, did not pursue further the excepting clause of the same section
thus to go on:
Provided, however, that the driver of a passenger automobile or
motorcycle may instead of coming to a full stop, slow down to
not more than ten kilometers per hour whenever it is apparent
that no hazard exists.
After a thorough perusal of the facts attendant to the case, this Court is in fun
accord with the lower court. Plaintiff-appellee Victorino Cusi had exercised all
the necessary precautions required of him as to avoid injury to -himself and to
others. We find no need for him to have made a full stop; relying on his faculties
of sight and hearing, Victorino Cusi had no reason to anticipate the impending
danger. The record shows that the spouses Cusi previously knew of the
existence of the railroad crossing, having stopped at the guardhouse to ask for
directions before proceeding to the party. At the crossing, they found the level
bar raised, no warning lights flashing nor warning bells ringing, nor whistle from
an oncoming train. They safely traversed the crossing. On their return home, the
situation at the crossing did not in the least change, except for the absence of
the guard or flagman. Hence, on the same impression that the crossing was
safe for passage as before, plaintiff-appellee Victorino Cusi merely slackened
his speed and proceeded to cross the tracks, driving at the proper rate of speed
for going over railroad crossings. Had defendant-appellant been successful in
establishing that its locomotive driver blew his whistle to warn motorists of his
approach to compensate for the absence of the warning signals, and that

Victorino Cusi, instead of stopping or slackening his speed, proceeded with

reckless speed and regardless of possible or threatened danger, then We would
have been put in doubt as to the degree of prudence exercised by him and
would have, in all probability, declared him negligent. 6 But as the contrary was
established, we remain convinced that Victorino Cusi had not, through his own
negligence, contributed to the accident so as to deny him damages from the
defendant-appellant.
The only question that now remains to be resolved is the reasonableness of the
amount awarded as damages to the plaintiffs- appellees.
The following actual expenses and losses are fully substantiated:
(a) Hospital bills of Mrs. Cusi from October, 1963 to May, 1964
in the amount of Thirteen Thousand Five Hundred Fifty Pesos
and Five Centavos (P13,550.05);
(b) Another hospital bill of Mrs. Cusi in 1965 in the amount of
Three Thousand and One Pesos and Ninety Centavos
(P3,001.90);
(c) Doctor's fees for two surgical operations performed on Mrs.
Cusi by one Dr. Manuel Rivera in the amount of One Thousand
and Five Hundred Pesos (Pl,500.00);
(d) Loss of Victorino's wrist watch valued at Two Hundred and
Fifty Pesos (P250.00);
(e) Loss of Pilar's half of her pair of demand earrings(l-carrats)
valued at Two Thousand Seven Hundred and Fifty Pesos
(P2,750,00);
(f) Repair of the damaged Vauxhall car in the amount of Two
Thousand Eight Hundred and Ninety Four Pesos and SeventySeven Centavos (P2,894.77).
The total award of actual damages in the amount of Twenty Three Thousand
Nine Hundred Forty-Six Pesos and Seventy-Two Centavos (P23,946.72) is,
therefore, correct.
The lower court awarded Twenty-One Thousand Six Hundred Pesos
(P21,600.00) to Mrs. Cusi for loss of income for the three years that she was
under constant medical treatment, and Fourteen Thousand Pesos (P14,000.00)
for impairment of her earning capacity; and Forty Thousand Pesos (P 40,000.00)
to Mr. Cusi for loss of income for the eight months that he was disabled and
impairment of his earning capacity. We find the award reasonable. The records

show that Mrs. Cusi, previously a skilled piano teacher averaging a monthly
income of Six Hundred Pesos (P600.00), cannot now teach nor play the piano
since the accident which resulted in the loss of the dexterity of her fingers;
likewise, Mr. Cusi cannot now vigorously attend to his businesses which
previously netted him a monthly average income of Five Thousand Pesos
(P5,000.00).
As regards the award of Twenty Thousand Pesos (P20,000.00) for profits which
Victorino Cusi failed to realize from a certain real estate transaction with the
Dolor Lopez Enterprises, we affirm the same as the defendant-appellant has
failed to present an iota of evidence to overcome plaintiffs-appellees' evidence
credited by the lower court as to the certainty of the materialization of the stated
transaction.
The award of Seventy Thousand Pesos (P70,000.00) to Mrs. Cusi and Fifty
Thousand Pesos (P50,000.00) to Victorino Cusi as moral damages is not
excessive. In their own respective fields of endeavor, both were successful. Now
they have to bear throughout their whole lifetime the humiliation wrought by their
physical deformities which no doubt affected, and will continue to do so, their
social lives, their financial undertakings, and even their mental attitudes.
Likewise, the amount of Ten Thousand Pesos (P10,000.00) given as attorney's
fees and expenses of litigation is not unreasonable. The total amount of
damages awarded by the trial court should bear legal interest at 6% from the
rendition of the j judgment, which was on March 26, 1968.
WHEREFORE, the judgment of the lower court is hereby AFFIRMED with the
modification that the total amount of damages shall bear legal interest at six per
cent (6%) from the rendition of the decision dated March 26, 1968.
SO ORDERED.

G.R. No. 129792

December 21, 1999

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE

and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and
CRISELDA R. AGUILAR, respondents.

1. Shock, severe, sec. to intraabdominal injuries due to blunt injury

2.
Hemorrhage,
massive,
intraperitoneal sec. to laceration, (L)
lobe liver

DAVIDE, JR., J.:

3. Rupture, stomach,
posterior walls

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of
Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment
of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119
and ordered petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department
Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are
the store's branch manager, operations manager, and supervisor, respectively.
Private respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd
floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit
card slip at the payment and verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind her. She then beheld her
daughter ZHIENETH on the floor, her young body pinned by the bulk of the
store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for
help. Although shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate 5 issued by ZHIENETH's attending doctor
described the extent of her injuries:

Diagnoses:

anterior

&

4. Complete transection, 4th position,

duodenum
5.
Hematoma,
retroperitoneal

extensive,

6. Contusion, lungs, severe

CRITICAL
After the burial of their daughter, private respondents demanded upon
petitioners the reimbursement of the hospitalization, medical bills and wake and
funeral expenses 6 which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages, docketed as
Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual
damages, P300,000 for moral damages, P20,000 for attorney's fees and an
unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries
and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to
freely roam around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also emphasized that the
counter was made of sturdy wood with a strong support; it never fell nor
collapsed for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed
the diligence of a good father of a family in the selection, supervision and control
of its employees. The other petitioners likewise raised due care and diligence in
the performance of their duties and countered that the complaint was malicious
for which they suffered besmirched reputation and mental anguish. They sought
the dismissal of the complaint and an award of moral and exemplary damages
and attorney's fees in their favor.

In its decision 7 the trial court dismissed the complaint and counterclaim after
finding that the preponderance of the evidence favored petitioners. It ruled that
the proximate cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners' witnesses who testified that ZHIENETH
clung to the counter, afterwhich the structure and the girl fell with the structure
falling on top of her, pinning her stomach. In contrast, none of private
respondents' witnesses testified on how the counter fell. The trial court also held
that CRISELDA's negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter
was situated at the end or corner of the 2nd floor as a precautionary measure
hence, it could not be considered as an attractive nuisance. 8The counter was
higher than ZHIENETH. It has been in existence for fifteen years. Its structure
was safe and well-balanced. ZHIENETH, therefore, had no business climbing on
and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court
its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of
ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter;
and (4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the
conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was
already capable of contributory negligence, still it was physically impossible for
her to have propped herself on the counter. She had a small frame (four feet
high and seventy pounds) and the counter was much higher and heavier than
she was. Also, the testimony of one of the store's former employees, Gerardo
Gonzales, who accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied petitioners' theory that
ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was
asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come
near the counter and the counter just fell on me." 9 Accordingly, Gonzales'
testimony on ZHIENETH's spontaneous declaration should not only be
considered as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable
for her to have let go of ZHIENETH at the precise moment that she was signing
the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of
ZHIENETH's death, was petitioners' negligence in failing to institute measures to
have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that
ZHIENETH's death while unfortunate and tragic, was an accident for which
neither CRISELDA nor even ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial court's rejection of Gonzales'
testimony as unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the
ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately
placed at a corner to avoid such accidents. Truth to tell, they acted without fault
or negligence for they had exercised due diligence on the matter. In fact, the
criminal case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and
reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted "L" 11 with a top wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could cause.
But the latter ignored their concern. The Court of Appeals faulted the petitioners
for this omission, and concluded that the incident that befell ZHIENETH could
have been avoided had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for some time without a prior
incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years
old at the time of the incident, was absolutely incapable of negligence or other
tort. It reasoned that since a child under nine (9) years could not be held liable
even for an intentional wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It also absolved
CRISELDA of any negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed the document at the
nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account. 12 It denied an award for funeral expenses for

lack of proof to substantiate the same. Instead, a compensatory damage of

P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision,

13

Petitioners also assail the credibility of Gonzales who was already separated
from Syvel's at the time he testified; hence, his testimony might have been
tarnished by ill-feelings against them.

thus:

WHEREFORE, premises considered, the judgment of the lower

court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:
1. P50,000.00 by way of compensatory
damages for the death of Zhieneth
Aguilar, with legal interest (6% p.a.)
from 27 April 1984;
2. P99,420.86 as reimbursement for
hospitalization expenses incurred; with
legal interest (6% p.a.) from 27 April
1984;
3. P100,000.00 as
exemplary damages;

moral

4. P20,000.00 in
attorney's fees; and

concept

the

and

of

5. Costs.
Private respondents sought a reconsideration of the decision but the same was
denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that
the Court of Appeals erred in disregarding the factual findings and conclusions
of the trial court. They stress that since the action was based on tort, any finding
of negligence on the part of the private respondents would necessarily negate
their claim for damages, where said negligence was the proximate cause of the
injury sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDA's contributory negligence,
through her failure to provide the proper care and attention to her child while
inside the store, nullified private respondents' claim for damages. It is also for
these reasons that parents are made accountable for the damage or injury
inflicted on others by their minor children. Under these circumstances,
petitioners could not be held responsible for the accident that befell ZHIENETH.

For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of Appeals are substantiated by
the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospital's emergency room should
receive credence; and finally, ZHIENETH's part of the res gestae declaration
"that she did nothing to cause the heavy structure to fall on her" should be
considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of
negligence, whether the same was attributable to private respondents for
maintaining a defective counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening;
an event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, 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 not do. 17 Negligence is "the failure to observe, for
the protection of the interest of another person, that degree of care, precaution
and vigilance which the circumstances justly demand, whereby such other
person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the
other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the
landmark case of Plicart v. Smith, 20 thus: 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. 21

We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the
incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you
hear or notice anything while the child was
being treated?

declarant had the time to think and concoct a falsehood as witnessed by the
person who testified in court. Under the circumstances thus described, it is
unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We therefore accord
credence to Gonzales' testimony on the matter, i.e., ZHIENETH performed no
act that facilitated her tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the
structurally unstable gift-wrapping counter proved their negligence, thus:

A At the emergency room we were all

surrounding the child. And when the doctor
asked the child "what did you do," the child said
"nothing, I did not come near the counter and
the counter just fell on me."

Q When you assumed the position as gift

wrapper at the second floor, will you please
describe the gift wrapping counter, were you
able to examine?
A Because every morning before I start working
I used to clean that counter and since not nailed
and it was only standing on the floor, it was
shaky.

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?
ATTY. BELTRAN

xxx xxx xxx

Yes, your Honor.

Q Will you please describe the counter at 5:00

o'clock [sic] in the afternoon on [sic] May 9
1983?

COURT
Granted. Intercalate "wala po, hindi po ako
lumapit doon. Basta bumagsak." 22

A At that hour on May 9, 1983, that counter was

standing beside the verification counter. And
since the top of it was heavy and considering
that it was not nailed, it can collapse at anytime,
since the top is heavy.

This testimony of Gonzales pertaining to ZHIENETH's statement formed (and

should be admitted as) part of theres gestae under Section 42, Rule 130 of the
Rules of Court, thus:
Part of res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part
of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions. 23 All that is required for their admissibility as part of the res gestaeis
that they be made or uttered under the influence of a startling event before the

xxx xxx xxx

Q And what did you do?
A I informed Mr. Maat about that counter which
is [sic] shaky and since Mr. Maat is fond of
putting display decorations on tables, he even
told me that I would put some decorations. But
since I told him that it not [sic] nailed and it is
shaky he told me "better inform also the
company about it." And since the company did
not do anything about the counter, so I also did

not do anything about the counter. 24 [Emphasis

supplied]
Ramon Guevarra, another former employee, corroborated the testimony of
Gonzales, thus:
Q Will you please described [sic] to the
honorable Court the counter where you were
assigned in January 1983?
xxx xxx xxx

xxx xxx xxx

Witness:
None, sir. They never nailed the counter. They
only nailed the counter after the accident
happened. 25 [Emphasis supplied]

A That counter assigned to me was when my

supervisor ordered me to carry that counter to
another place. I told him that the counter needs
nailing and it has to be nailed because it might
cause injury or accident to another since it was
shaky.

Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the store's
employees and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family.

Q When that gift wrapping counter was

transferred at the second floor on February 12,
1983, will you please describe that to the
honorable Court?

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to

establish that the former's testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarra's testimonies were
blemished by "ill feelings" against petitioners since they (Gonzales and
Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved
scant consideration.

A I told her that the counter wrapper [sic] is

really in good [sic] condition; it was shaky. I told
her that we had to nail it.

Q And what was the answer of Ms. Panelo

when you told her that the counter was shaky?

It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and observing the
deportment of the witnesses. 26 However, the rule admits of exceptions such as
when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could
affect the result of the case. 27 In the instant case, petitioners failed to bring their
claim within the exception.

A She told me "Why do you have to teach me.

You are only my subordinate and you are to
teach me?" And she even got angry at me
when I told her that.

Anent the negligence imputed to ZHIENETH, we apply the conclusive

presumption that favors children below nine (9) years old in that they are
incapable of contributory negligence. In his book, 28 former Judge Cezar S.
Sangco stated:

Q When you said she, to whom are you

referring to [sic]?
A I am referring to Ms. Panelo, sir.

xxx xxx xxx

Q From February 12, 1983 up to May 9, 1983,

what if any, did Ms. Panelo or any employee of
the management do to that (sic)

In our jurisdiction, a person under nine years of age is

conclusively presumed to have acted without discernment, and
is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains

in a case of a person over nine and under fifteen years of age,

unless it is shown that he has acted with discernment. Since
negligence may be a felony and aquasi-delict and required
discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence
in the case of a child over nine but under fifteen years of age is
a rebuttable one, under our law. The rule, therefore, is that a
child under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law.
[Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she
climbed over the counter, no injury should have occurred if we accept
petitioners' theory that the counter was stable and sturdy. For if that was the
truth, a frail six-year old could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court and Court of Appeals and
a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not durable
after all. Shaped like an inverted "L," the counter was heavy, huge, and its top
laden with formica. It protruded towards the customer waiting area and its base
was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch when she signed her
credit card slip. At this precise moment, it was reasonable and usual for
CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned
down by the counter, she was just a foot away from her mother; and the giftwrapping counter was just four meters away from CRISELDA. 32 The time and
distance were both significant. ZHIENETH was near her mother and did not
loiter as petitioners would want to impress upon us. She even admitted to the
doctor who treated her at the hospital that she did not do anything; the counter
just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and
the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R.
No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.

G.R. No. 150920

CHILD LEARNING CENTER, INC. and SPOUSES EDGARDO L. LIMON
and SYLVIA S. LIMON vs. TIMOTHY TAGARIO, assisted by
his parents BASILIO TAGORIO and Promulgated:
HERMINIA TAGORIO,
AZCUNA, J.:
This petition started with a tort case filed with the Regional Trial Court of Makati
by Timothy Tagorio and his parents, Basilio R. Tagorio and Herminia Tagorio,
docketed as Civil Case No. 91-1389. The complaint [1] alleged that during the
school year 1990-1991, Timothy was a Grade IV student at Marymount School,
an academic institution operated and maintained by Child Learning Center, Inc.
(CLC). In the afternoon of March 5, 1991, between 1 and 2 p.m., Timothy
entered the boys comfort room at the third floor of the Marymount building to
answer the call of nature. He, however, found himself locked inside and unable
to get out. Timothy started to panic and so he banged and kicked the door and
yelled several times for help. When no help arrived he decided to open the
window to call for help. In the process of opening the window, Timothy went right
through and fell down three stories. Timothy was hospitalized and given medical
treatment for serious multiple physical injuries.

Petitioners question several factual findings of the trial court, which were
affirmed by the Court of Appeals, namely: [5]
1.
That respondent was allegedly trapped inside the boys comfort
room located at the third floor of the school building on March 5, 1991;
2.
That respondent allegedly banged and kicked the door of said
comfort room several times to attract attention and that he allegedly yelled
thereat for help which never came;
3.
That respondent was allegedly forced to open the window of said
comfort room to seek help;
4.
That the lock set installed at the boys comfort room located in the
third floor of the school building on March 5, 1991 was allegedly defective and
that the same lock set was involved in previous incidents of alleged
malfunctioning;
5.
That petitioner Child Learning Center, Inc. allegedly failed to install
iron grills in the window of the boys comfort room at the third floor of the school
building;

An action under Article 2176 of the Civil Code was filed by respondents against
the CLC, the members of its Board of Directors, namely Spouses Edgardo and
Sylvia Limon, Alfonso Cruz, Carmelo Narciso and Luningning Salvador, and the
Administrative Officer of Marymount School, Ricardo Pilao. In its defense, [2]CLC
maintained that there was nothing defective about the locking mechanism of the
door and that the fall of Timothy was not due to its fault or negligence. CLC
further maintained that it had exercised the due care and diligence of a good
father of a family to ensure the safety, well-being and convenience of its
students.
After trial, the court a quo found in favor of respondents and ordered petitioners
CLC and Spouses Limon to pay respondents, jointly and severally, P200,253.12
as actual and compensatory damages, P200,000 as moral damages, P50,000
as exemplary damages, P100,000 as attorneys fees and the costs of the suit.
The trial court disregarded the corporate fiction of CLC and held the Spouses
Limon personally liable because they were the ones who actually managed the
affairs of the CLC.

6.
That petitioner Child Learning Center, Inc. allegedly failed to
exercise the due care of a good father of a family in the selection and
supervision of its employees;

Petitioners CLC and the Spouses Limon appealed the decision to the Court of
Appeals.

Generally, factual findings of the trial court, affirmed by the Court of Appeals, are
final and conclusive and may not be reviewed on appeal. The established
exceptions are: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the findings
are grounded entirely on speculations, surmises or conjectures; (4) when the
judgment of the Court of Appeals is based on misapprehension of facts; (5)
when the findings of fact are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary

On September 28, 2001, the Court of Appeals[3] affirmed the decision in toto.
Petitioners elevated the case to this Court under Rule 45 of the Rules of Court,
after their motion for reconsideration was denied by Resolution of November 23,
2001.[4]

7.
That the proximate cause of respondents accident was allegedly
not due to his own contributory negligence;
8.
That there was an alleged basis to apply the legal principle of
piercing the veil of corporate entity in resolving the issue of alleged liability of
petitioners Edgardo L. Limon and Sylvia S. Limon;
9.
That there was alleged basis for petitioners to pay respondent
actual, moral and exemplary damages, plus attorneys fees;
10.
That there was an alleged basis in not awarding petitioners prayer
for moral and exemplary damages, including attorneys fees.

to the admissions of both appellant and appellee; (7) when the findings of fact
are conclusions without citation of specific evidence on which they are based;
(8) when the Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties and which, if properly considered, would justify a
different conclusion; and (9) when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted by the evidence on
record.[6]
On the basis of the records of this case, this Court finds no justification to
reverse the factual findings and consider this case as an exception to the
general rule.
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove
by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2)
the fault or negligence of the defendant or some other person for whose act he
must respond; and (3) the connection of cause and effect between the fault or
negligence and the damages incurred.[7]
Fault, in general, signifies a voluntary act or omission which causes damage to
the right of another giving rise to an obligation on the part of the actor to repair
such damage. Negligence is the failure to observe for the protection of the
interest of another person that degree of care, precaution and vigilance which
the circumstances justly demand. Fault requires the execution of a positive act
which causes damage to another while negligence consists of the omission to
do acts which result in damage to another.[8]
In this tort case, respondents contend that CLC failed to provide precautionary
measures to avoid harm and injury to its students in two instances: (1) failure to
fix a defective door knob despite having been notified of the problem; and (2)
failure to install safety grills on the window where Timothy fell from.
The trial court found that the lock was defective on March 5, 1991: [9]
The door knob was defective. After the incident of March 5, 1991, said door
knob was taken off the door of the toilet where Timothy was in. The architect
who testified during the trial declared that although there were standard
specifications for door knobs for comfort room[s], and he designed them
according to that requirement, he did not investigate whether the door knob
specified in his plans during the construction [was] actually put in place. This is
so because he did not verify whether the door knob he specified w[as] actually
put in place at the particular comfort room where Timothy was barred from
getting outside. (TSN, pp. 19-20, December 8, 1994).
The Court of Appeals held that there was no reason to disturb the factual
assessment:[10]
After having perused the records, We fail to see any indication of whim or
arbitrariness on the part of the trial magistrate in his assessment of the facts of

the case. That said, We deem it not to be within Our business to recast the
factual conclusions reached by the court below.
Petitioners would make much of the point that no direct evidence was presented
to prove that the door knob was indeed defective on the date in question.
The fact, however, that Timothy fell out through the window shows that the door
could not be opened from the inside. That sufficiently points to the fact that
something was wrong with the door, if not the door knob, under the principle
of res ipsa loquitor. The doctrine of res ipsa loquitor applies where (1) the
accident was of such character as to warrant an inference that it would not have
happened except for the defendants negligence; (2) the accident must have
been caused by an agency or instrumentality within the exclusive management
or control of the person charged with the negligence complained of; and (3) the
accident must not have been due to any voluntary action or contribution on the
part of the person injured. [11] Petitioners are clearly answerable for failure to see
to it that the doors of their school toilets are at all times in working condition. The
fact that a student had to go through the window, instead of the door, shows that
something was wrong with the door.
As to the absence of grills on the window, petitioners contend that there was no
such requirement under the Building Code. Nevertheless, the fact is that such
window, as petitioners themselves point out, was approximately 1.5 meters from
the floor, so that it was within reach of a student who finds the regular exit, the
door, not functioning. Petitioners, with the due diligence of a good father of the
family, should have anticipated that a student, locked in the toilet by a nonworking door, would attempt to use the window to call for help or even to get out.
Considering all the circumstances, therefore, there is sufficient basis to sustain a
finding of liability on petitioners part.
Petitioners argument that CLC exercised the due diligence of a good father of a
family in the selection and supervision of its employees is not decisive. Due
diligence in the selection and supervision of employees is applicable where the
employer is being held responsible for the acts or omissions of others under
Article 2180 of the Civil Code.[12] In this case, CLCs liability is under Article 2176
of the Civil Code, premised on the fact of its own negligence in not ensuring that
all its doors are properly maintained.
Our pronouncement that Timothy climbed out of the window because he could
not get out using the door, negates petitioners other contention that the
proximate cause of the accident was Timothys own negligence. The injuries he
sustained from the fall were the product of a natural and continuous sequence,
unbroken by any intervening cause, that originated from CLCs own negligence.
We, however, agree with petitioners that there was no basis to pierce CLCs
separate corporate personality. To disregard the corporate existence, the plaintiff
must prove: (1) Control by the individual owners, not mere majority or complete
stock ownership, resulting in complete domination not only of finances but of

policy and business practice in respect to a transaction so that the corporate

entity as to this transaction had at the time no separate mind, will or existence of
its own; (2) such control must have been used by the defendant to commit fraud
or wrong, to perpetuate the violation of a statutory or other positive legal duty, or
a dishonest and unjust act in contravention of the plaintiffs legal right; and (3)
the control and breach of duty must proximately cause the injury or unjust loss
complained of. The absence of these elements prevents piercing the corporate
veil.[13] The evidence on record fails to show that these elements are present,
especially given the fact that plaintiffs complaint had pleaded that CLC is a
corporation duly organized and existing under the laws of the Philippines.
On 9th and 10th points raised concerning the award of damages, the resolution
would rest on factual determinations by the trial court, affirmed by the Court of
Appeals, and no legal issue warrants our intervention.
WHEREFORE, the petition is partly granted and the Decision and Resolution of
the Court of Appeals in CA-G.R. CV No. 50961 dated September 28, 2001 and
November 23, 2001, respectively, are MODIFIED in that petitioners Spouses
Edgardo and Sylvia Limon are absolved from personal liability. The Decision and
Resolution are AFFIRMED in all other respects. No pronouncement as to costs.
SO ORDERED.

CONCEPCION ILAO-ORETA,

G.R. No. 172406

Petitioner,
Present:

- versus -

SPOUSES
EVA MARIE
and
BENEDICTO NOEL RONQUILLO,
Respondents.

QUISUMBING, J., Chairperson,

CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

In her Answer,[3] Dr. Ilao-Oreta gave her side of the case as follows: She went
on a honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00
p.m. of April 4, 1999for Manila. Aware that her trip from Hawaii to Manila would
take about 12 hours, inclusive of a stop-over at the Narita Airport in Japan, she
estimated that she would arrive inManila in the early morning of April 5,
1999. She thus believed in utmost good faith that she would be back in Manila in
time for the scheduled conduct of the laparoscopic procedure. She failed to
consider the time difference between Hawaii and the Philippines, however.
In its Answer,[4] the St. Lukes Medical Center contended that the spouses have
no cause of action against it since it performed the pre-operative procedures
without delay, and any cause of action they have would be against Dr. IlaoOreta.

Promulgated:
October 11, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CARPIO MORALES, J.:
Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto
(Noel) Ronquillo (the Ronquillo spouses or the spouses), had not been blessed
with a child despite several years of marriage. They thus consulted petitioner,
Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologistconsultant at the St. Lukes MedicalCenter where she was, at the time material to
the case, the chief of the Reproductive Endocrinology and Infertility Section.
Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic
procedure whereby a laparascope would be inserted through the patients
abdominal wall to get a direct view of her internal reproductive organ in order to
determine the real cause of her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by
Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie, accompanied by her
husband Noel, checked in at the St. Lukes Medical Center and underwent preoperative procedures including the administration of intravenous fluid and
enema.
Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however,
and no prior notice of its cancellation was received. It turned out that the doctor
was on a return flight from Hawaii to, and arrived at 10:00 p.m. of April 5,
1999 in, Manila.
[1]

On May 18, 1999, the Ronquillo spouses filed a complaint against Dr. IlaoOreta and the St. Lukes Medical Center for breach of professional and service
contract and for damages before the Regional Trial Court (RTC)
of Batangas City. They prayed for the award of actual damages including
alleged loss of income of Noel while accompanying his wife to the hospital,
moral damages, exemplary damages, the costs of litigation, attorneys fees, and
other available reliefs and remedies.[2]

By Decision[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding that the
failure of the doctor to arrive on time was not intentional, awarded Eva Marie
only actual damages in the total amount of P9,939 and costs of suit. It found no
adequate proof that Noel had been deprived of any job contract while attending
to his wife in the hospital.
On appeal by the spouses, the Court of Appeals, by Decision [6] of April 21, 2006,
finding Dr. Ilao-Oreta grossly negligent,[7] modified the trial courts decision as
follows:
WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed, subject
to the modification that the amount of actual damages, for which both
defendants-appellees are jointly and severally liable to plaintiffs-appellants,
is increased to P16,069.40. Furthermore, defendant-appellee Dr. Ilao-Oreta is
also held liable to pay plaintiff-appellants the following:
(a)

P50,000.00 as moral damages;

(b) P25,000.00 as exemplary damages; and

(c)

P20,000.00 as attorneys fees.

SO ORDERED.[8] (Underscoring supplied)

Hence, the present Petition for Review [9] of Dr. Ilao-Oreta raising the following
arguments:
THE COURT A QUO ERRED IN FINDING PETITIONER TO HAVE ACTED
WITH GROSS NEGLIGENCE AND AWARDING MORAL DAMAGES TO
RESPONDENTS.[10]

THE COURT A QUO ERRED IN AWARDING EXEMPLARY DAMAGES TO

RESPONDENTS.[11]

Q: Were you able to contact them?

A: I was able to reach Mr. Ronquillo.

THE COURT A QUO [ERRED] IN AWARDING ATTORNEYS FEES TO

RESPONDENTS.[12]

Q: In the course of your conversation, what did you tell Mr. Ronquillo?

THE COURT A QUO ERRED IN INCREASING THE AWARD OF ACTUAL

DAMAGES IN FAVOR OF RESPONDENTS.[13]

A: I apologized to him, I said I was sorry about the time that I missed the
surgery, and I told him that I can do the case right that same day without Mrs.
Ronquillo having to undergo another [b]arium enema.

Gross negligence implies a want or absence of or failure to exercise slight care

or diligence, or the entire absence of care. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid them. [14] It is characterized by
want of even slight care, acting or omitting to act in a situation where there is a
duty to act, not inadvertently but willfully and intentionally with a conscious
indifference to consequences in so far as other persons may be affected. [15]

Q: What else did you tell him, if any?

The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting
order with her secretary for one of the spouses to pick up, apprised Eva Marie of
the necessary preparations for the procedure, and instructed the hospital staff to
perform pre-operative treatments.[16] These acts of the doctor reflect an earnest
intention to perform the procedure on the day and time scheduled.

A: I could hear on the background that Mrs. Ronquillo was shouting angrily that
she didnt want to talk to me, and that she didnt want re-scheduling of the
surgery . . .

The records also show that on realizing that she missed the scheduled
procedure, Dr. Ilao-Oreta, upon arrival in Manila, immediately sought to rectify
the same, thus:

A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to
apologize to her personally.
Q: And what did he say?

ATTY LONTOK: May we move, your Honor, for the striking out of the answer,
this is purely hearsay.
COURT: Remain on the record.
WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry,
Dra., we cannot re-schedule the surgery.[17] (Underscoring supplied)

[ATTY SINJAN] Q: So, can you tell us the reason why you missed that
operation?
[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my
ticket and so I was to leave Hawaii on April 4 at around 4:00 oclock in the
afternoon, so I was computing 12 hours of travel including stop-over, then
probably I would be in Manila early morning of April 5, then I have so much time
and I can easily do the case at 2:00 oclock, you know it skipped my mind the
change in time.

Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived
in Manila as related by her.[18]
The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice
to the United States where she obtained a fellowship in Reproductive
Endocrinology and Infertility was indeed negligent when she scheduled to
perform professional service at 2:00 p.m. on April 5, 1999 without considering
the time difference between the Philippinesand Hawaii.

Q: So when you arrived at 10:00 [PM] in Manila, what did you do?
A: I called immediately the hospital and I talked with the nurses, I asked about
the patient, Mrs. Ronquillo, and they told me that she has already left at
around 7:00.
Q: And after calling the hospital, what happened?
A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in
the morning I went to my office early at 8:00 and looked for her chart, because
her telephone number was written in the chart. So, I called them right away.

The doctors act did not, however, reflect gross negligence as defined above. Her
argument that
Although petitioner failed to take into consideration the time difference between
the Philippines and Hawaii, the situation then did not present any clear and
apparent harm or injury that even a careless person may perceive. Unlike in
situations where the Supreme Court had found gross negligence to exist,
petitioner could not have been conscious of any foreseeable danger that may
occur since she actually believed that she would make it to the operation that
was elective in nature, the only purpose of which was to determine the real

cause of infertility and not to treat and cure a life threatening disease. Thus, in
merely fixing the date of her appointment with respondent Eva Marie Ronquillo,
petitioner was not in the pursuit or performance of conduct which any ordinary
person may deem to probably and naturally result in injury, [19] (Underscoring in
original)

Q: But you did not demand anything or write to Dr. Oreta?

A: No.
Q: Before instituting this case?

thus persuades.
A: No.[23] (Underscoring supplied)
It bears noting that when she was scheduling the date of her performance of the
procedure, Dr. Ilao-Oreta had just gotten married and was preparing for her
honeymoon,[20] and it is of common human knowledge that excitement attends
its preparations. Her negligence could then be partly attributed to human frailty
which rules out its characterization as gross.
The doctors negligence not being gross, the spouses are not entitled to recover
moral damages.
Neither are the spouses entitled to recover exemplary damages in the absence
of a showing that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner,[21] nor to award of attorneys fees as, contrary
to the finding of the Court of Appeals that the spouses were compelled to litigate
and incur expenses to protect their interest, [22] the records show that they did not
exert enough efforts to settle the matter before going to court. Eva Marie herself
testified:
ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not make any
demand on Dr. Ilao-Oreta regarding the claims which you have allegedly
incurred, because of the failed laparoscopic surgery operation?
A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . .

Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is welltaken. Article 2201 of the Civil Code provides:
In contracts and quasi-contracts, the damages for which the obligor who acted in
good faith is liable shall be those which are the natural and probable
consequences of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the obligation was
constituted.
In fixing the amount of actual damages, the Court of Appeals and the trial court
included expenses which the spouses incurred prior to April 5, 1999 when the
breach of contract complained of occurred. [24] The Court of Appeals also
included the alleged P300 spent on fuel consumption from the spouses
residence
at
San
Pascual,
Batangas
to
the
St.
LukesMedical Center in Quezon City and the alleged P500 spent on food in the
hospital canteen, both of which are unsubstantiated by independent or
competent proof.[25] The only piece of documentary evidence supporting the food
and fuel expenses is an unsigned listing. [26] As the fuel and food expenses are
not adequately substantiated, they cannot be included in the computation of the
amount of actual damages. So Premiere Development Bank v. Court of
Appeals[27] instructs:

Q: But did you demand?

A: No, I did not demand because
ATTY. SINJIAN: That will be all, your Honor.
ATTY. LONTOK: The witness is still explaining.
WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the
meeting for me and Dr. Oreta to settle things and reimburse all the money that I
spent from the hospital, and he even suggested Dr. Oreta to personally talk to
me.
ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.

In the instant case, the actual damages were proven through the sole testimony
of Themistocles Ruguero, the vice president for administration of Panacor. In his
testimony, the witness affirmed that Panacor incurred losses, specifically, in
terms of training and seminars, leasehold acquisition, procurement of vehicles
and office equipment without, however, adducing receipts to substantiate the
same. The documentary evidence marked as Exhibit W, which was an ordinary
private writing allegedly itemizing the capital expenditures and losses from the
failed operation of Panacor, was not testified to by any witness to ascertain the
veracity of its content. Although the lower court fixed the sum of
P4,520,000.00 as the total expenditures incurred by Panacor, it failed to show
how and in what manner the same were substantiated by the claimant with
reasonable certainty. Hence, the claim for actual damages should be received
with extreme caution since it is only based on bare assertion without support
from independent evidence. Premieres failure to prove actual expenditure
consequently conduces to a failure of its claim. In determining actual damages,

the court cannot rely on mere assertions, speculations, conjectures or

guesswork but must depend on competent proof and on the best evidence
obtainable regarding the actual amount of loss.[28] (Underscoring supplied)

2.
The award of moral and exemplary damages and attorneys fees
is DELETED.
SO ORDERED.

The list of expenses cannot replace receipts when they should have been
issued as a matter of course in business transactions [29] as in the case of
purchase of gasoline and of food.
The documented claim for hospital and medical expenses of the spouses is
detailed in the Statement of Account issued by the hospital, the pertinent entries
of which read:
xxxx
GROSS HOSPITAL CHARGES 2,416.50
4/5/1999 1699460 DEPOSITOFFICIAL
RECEIPT (5,000.00)
(5,000.00)
________
4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)
FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ______ (127.80)
BALANCE DUE (2,711.30)[30]
=======
As extrapolated from the above-quoted entries in the Statement of
Account, P2,288.70 (the gross hospital charges of P2,416.50 less the unused
medicine in the amount ofP127.80) was debited from the P5,000 deposit[31] to
thus leave a balance of the deposit in the amount of P2,711.30, which the trial
court erroneously denominated as confinement fee. The remaining balance
of P2,711.30 was the amount refundable to the spouses.
Following Eastern Shipping Lines, Inc. v. Court of Appeals,[32] this Court awards
interest on the actual damages to be paid by Dr. Ilao-Oreta at the rate of 6% per
annumfrom the time of the filing of the complaint on May 18, 1999, and at
12% per annum from the finality of this judgment until its satisfaction.
WHEREFORE, the
is MODIFIED in that

petition

is GRANTED. The

decision

appealed

from

1) the award to respondents-spouses Noel and Eva Marie Ronquillo of actual

damages is REDUCED to P2,288.70, to bear interest at a rate of 6% per
annum from the time of the filing of the complaint on May 18, 1999 and, upon
finality of this judgment, at the rate of 12% per annum until satisfaction; and

G.R. No. L-6870

May 24, 1954

ELENA AMEDO, plaintiff-appellant,

vs.
RIO Y OLABARRIETA, INC., defendant-appellee.
Cesareo Perez and Meliton C. Parducho for appellant.
M. Almario and Jose T. Lajom for appellee.
CONCEPCION, J.:
This case was instituted on October 18, 1950. In her original complaint, plaintiff
Elena Amedo sought to collect from defendant Rio y Olabarrieta, Inc., the sum of
P2,038.40 as compensation for the death of her son, Filomeno Managuit, who
worked for the defendant as a seaman of the M/S Pilar II. The main allegation of
said original complaint was:
That on May 27, 1949 at about 11:30 o'clock in the morning, while the
deceased Filomeno Managuit was on board M/S "Pilar II" as such
seaman, he jumped into the water to retrieve a 2-peso bill belonging to
him, and as a consequence of which, he was drowned.
On November 1, 1950, defendant filed a motion to dismiss upon the ground that
said allegation does not show that the death of plaintiff's son was due to an
"accident arising out of and in the course of employment," and that, accordingly,
the complaint does not state a cause of action. This motion was granted and the
complaint dismissed, accordingly, by an order dated December 11, 1950. A
motion for the reconsideration of this order having been denied, plaintiff
appealed to this Court, which, on October 30, 1952, rendered a decision
affirming the order appealed from, but "without prejudice to the right of the
plaintiff, the mother of the deceased seaman, to file an amended complaint
within fifteen (15) days from notice by the clerk of the trial court that the record of
this case had been remanded to and received by the trial court, without costs."
Hence, on December 22, 1952, plaintiff filed an amended complaint, paragraph
4 of which alleges:
That on May 27, 1949, at or about 11:30 o'clock in the morning while the
said Filomeno Managuit was in the course of his employment,
performing his duties as such ordinary seaman on defendant's M/S
"Pilar II",which was anchored then about 1 1/2 miles from the seashore
of Arceli Dumarang, Palawan, his two-peso bill was blown by the breeze
into the sea and in his effort to retrieve the same from the waters he was
drowned.
A motion to dismiss this amended complaint upon the ground of failure to state a
cause of action was granted and the case, consequently, dismissed without

costs. Are consideration of this action having been denied, the case is once
again before us on appeal.
Plaintiff's claim is admittedly predicated upon Act No. 3428, otherwise known as
the Workmen's Compensation Act. The same was amended, first, by Act No.
3812, then, by Commonwealth Act No. 210 and, lastly, by Republic Act 772. The
latter, however, took effect on June 20,1952 or after the accident upon which
plaintiff bases her cause of action. Hence, in the consideration of this case, we
shall disregard the provisions of said Republic Act No. 772. Sections 2 and 4 of
Act No. 2428, prior to its latest amendment, read:
Sec. 2. Grounds for compensation. When any employee receives a
personal injury from any accident arising out of and in the course of the
employment, or contracts any illness directly caused by such
employment, or the result of the nature of such employment, his
employer shall pay compensation in the sums and to the persons
hereinafter specified.
Sec. 4. Injuries not covered. Compensation shall not be allowed for
injuries caused (1) by the voluntary intent of the employee to inflict such
injury upon himself or another person; (2) by drunkenness on the part of
the laborer who had the accident; (3) by notorious negligence of the
same.
Pursuant to these provisions in so far as pertinent to the case at bar three
conditions are essential to hold an employer liable to compensate his employee
for a personal injury sustained by him from an accident, namely: (1) the accident
must arise out of the employment; (2) it must happen in the course of the
employment; and (3) it must not be caused by the "notorious negligence" of the
employee.
Admittedly, the death of Filomeno Managuit was due to an accident. The point in
issue is whether such accident occurred under the three (3) conditions
aforementioned. Referring to the first two requirements, we said, in Afable et al.
vs. Singer Sewing Machine Co. (58 Phil., 39, 42):
The phrase "due to and in the pursuance of" used in section 2 of Act No.
3428 was changed in Act No. 3812 to "arising out of and in the course
of". Discussing this phrase, the Supreme Court of Illinois in the case of
Muller Construction Co. vs. Industrial Board (283 Ill., 148; 118 N. E.,
1028; 1 W. C. L., 943), said:
"The words "arising out of" refer to the origin or cause of the accident
and are descriptive of its character, while the words `in the course of'
refer to the time, place, and circumstances under which the accident
takes place. (Fitzgerald vs. Clarke & Sons, 1 B.W.C.C., 197 Dietzen

Co. vs. Industrial Board, 279 Ill. 11; 116 N.E. 684.) By the use of these
words it was not the intention of the legislature to make the employer an
insurer against all accidental injuries which might happen to an
employee while in the course of the employment, but only for such
injuries arising from or growing out of the risks peculiar to the nature of
work in the scope of the workmen's employment or incidental to such
employment, and accidents in which it is possible to trace the injury to
some risk or hazard to which the employee is exposed ina special
degree by reason of such employment. Risks to which all persons
similarly situated are equally exposed and not traceable in some special
degree to the particular employment are excluded."
Adopting a liberal view, it may be conceded that the death of Filomeno took
place "in the course of" his employment, in that it happened at the "time" when,
and at the "place" where-according to the amended complaint-he was working.
However, the accident which produced this tragic result did not "arise out of" his
employment. Indeed, the latter was not "the origin or cause of said
accident. The blowing of his 2-peso bill may have grown out of, or arisen from,
his employment. It was the result of a risk peculiar to his work as a seaman or
incidental to such work. But, his death was the consequence of his decision to
jump into the water to retrieve said bill. The hazardous nature of this act was not
due specially to the nature of his employment. It was a risk to which any person
on board the M/S Pilar II, such as a passenger thereof or an ordinary visitor,
would have been exposed had he, likewise, jumped into the sea, as Filomeno
had.
Irrespective of whether or not the accident in question arose out of, or took place
in the course of the employment, was it caused by his "notorious negligence"?
The phrase "notorious negligence" has been held to be tantamount to "gross
negligence", which, in turn, has been defined as follows:
Gross negligence is define to be the want of even slight care and
diligence. (Mobile and M. R. Co. vs. Aschcraft [1872] 48 Ala., 15.)
By gross negligence is meant "such entire want of care as to raise a
presumption that the person in fault is conscious of the probable
consequences of carelessness, and is indifferent, or worse, to the
danger of injury to person or property of others." ... The negligence must
amount to a reckless disregard of the safety of person or property."
(Wall vs. Cameron [1882] 6 Colo., 275; see, also, The Law Governing
Labor Disputes in the Philippines by Francisco, 2nd ed., p. 877.)
It cannot be denied that in jumping into the sea, one mile and a half from the
seashore of Arceli, Dumarang, Palawan, Filomeno failed to exercise "even slight
care and diligence," that he displayed a "reckless disregard of the safety" of his
person, that he could not have been but conscious of the probable

consequences" of his carelessness and that he was "indifferent, or worse, to the

danger of injury.
Thus, in the case of Government of the Philippines vs. The Manila Electric Co.
(40 Off. Gaz., 9th Suppl., 232),an employee of the Bureau of Posts who died by
electrocution, as the lines which he was repairing came into contact with those
of the Manila Electric, was held to be guilty of gross negligence, he having been
previously warned that the service of electric light had been reestablished and
that he should, therefore be careful in handling the wires. The same conclusion
was reached in De la Cruz vs. Hijos de I. de la Rama and Co. (62 Phil., 653),
involving a truck driver who died, because his truck fell into a ditch in
consequence of a false manuever he made to avoid collision with another car
which unexpectedly appeared on the road, while he was driving on the wrong
side of the highway, at a speed of 40 to 50 km. an hour.
To the same effect was the decision in Jahara vs. Mindanao Lumber Co. (57
Phil., 853), referring to a laborer who was run over by a car, as he fell therefrom,
when he tried to board it while moving backward. Similarly, the death of a
carpenter as he slipped from the roof of a building he was repairing was blamed
on his gross negligence in Caunan vs. Compania General de Tabacos (56 Phil.,
542,545), he having worn rubber shoes despite the fact that the roof was wet.
The case of Reyes vs. The City of Manila (G. R. No. 29112, July 18, 1933)
referred to a watchman assigned to a road-roller, who sat on a piece of board
one end of which was over a box placed on the hind wheels of the road-roller
and the other end over a box of tools on the same rollert two meters above the
ground. As he tried to drive away the mosquitoes and flying ants which bothered
him, the board slipped off the wheel of the roller. So, he fell to the ground and
his knee and left pelvis bumped against the cement sidewalk, sustaining
physical injuries as a consequence thereof. It was held that he had been grossly
negligent in seating on the piece of board which was precariously placed and in
making motions for the purpose of driving away the mosquitoes and flying ants.
Again in Guilas vs. The Province of Pampanga (G. R. No. 37744, July 21, 1933),
a laborer on board a truck who stood up as it was approaching a curve and fell
over when the vehicle turned the curved, was held guilty of gross negligence.
In none of these cases was the danger as apparent or imminent as when
Filomeno Managuit jumped into the sea to recover his 2-peso bill. Hence, there
is more reason to hold that his death was caused by his notorious negligence.
His case is easily distinguishable from that of Cuevo vs. Barredo (G.R. No.
45669, decided February 24, 1938, the employee involved therein, who
appeared to be a good swimmer, having acted in obedience to an order of his
foreman, to save or protect a property of the employer. It is, also, distinguishable
from accidents occurring while the laborer or employee is answering a call of
nature, or throwing away his cigarette (Columbia Casualty Co. vs. Parham, 69
Ga. App. 258), or picking up his pipe, which had fallen, or retrieving his shoes

from a car into which a fellow worker had thrown it (Donovan vs. Bush Terminal
Co., 6 N. Y. S. 2nd 860, 255 App. Div. 737), these acts not being dangerous per
se and the employee being legally justified or supposed to perform either of
them in the course of his employment. So, also, if, while Filomeno Managuit was
working, his 2-peso bill merely fell from his pocket, and as he picked up the bill
from the floor something accidentally fell upon him and injured him, he would
surely be entitled to compensation, his act being obviously innocent. In such
case, it could be said, in the words of the Lord President in Lauchlan vs.
Anderson (S. C. 529), that "He had the right to be at the place ...; he was within
the time during which he was employed ...;and he was doing a thing which a
man while working may reasonably do-a workman of his sort may reasonably
smoke, he may reasonably drop his pipe, and he may reasonably pick it up
again." (See Ramos vs. Poblete et al., 40 Off. Gaz., 3474). Jumping into the
sea, however, is entirely different, the danger which it entails being clear, potent
and obvious.
In view of the foregoing the decision appealed from is hereby affirmed, without
special pronouncement as to costs.
It is so ordered.

ROBERTO C. SICAM and AGENCIA G.R. NO. 159617

de R.C. SICAM, INC.,
Petitioners,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO, and
NACHURA, JJ.
LULU V. JORGE and CESAR
JORGE, Promulgated:
Respondents. August 8, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari filed by Roberto C. Sicam, Jr.
(petitioner Sicam) and Agencia de R.C. Sicam, Inc. (petitioner corporation)
seeking to annul the Decision[1] of the Court of Appeals dated March 31, 2003,
and its Resolution[2] dated August 8, 2003, in CA G.R. CV No. 56633.
It appears that on different dates from September to October 1987, Lulu V. Jorge
(respondent Lulu) pawned several pieces of jewelry with Agencia de R.
C. Sicam located at No. 17 Aguirre Ave., BF Homes Paraaque, Metro Manila, to
secure a loan in the total amount of P59,500.00.
On October 19, 1987, two armed men entered the pawnshop and took away
whatever cash and jewelry were found inside the pawnshop vault. The incident
was entered in the police blotter of the Southern Police District, Paraaque Police
Station as follows:
Investigation shows that at above TDPO, while victims were inside the office,
two (2) male unidentified persons entered into the said office with guns
drawn. Suspects(sic) (1) went straight inside and poked his gun toward
Romeo Sicam and thereby tied him with an electric wire while suspects (sic) (2)
poked his gun toward Divina Mata and Isabelita Rodriguez and ordered them to
lay (sic) face flat on the floor. Suspects asked forcibly the case and assorted
pawned jewelries items mentioned above.
Suspects after taking the money and jewelries fled on board a Marson Toyota
unidentified plate number.[3]
Petitioner Sicam sent respondent Lulu a letter dated October 19, 1987 informing
her of the loss of her jewelry due to the robbery incident in the pawnshop. On
November 2, 1987, respondent Lulu then wrote a letter [4] to
petitioner Sicam expressing disbelief stating that when the robbery happened,

all jewelry pawned were deposited with Far East Bank near the pawnshop since
it had been the practice that before they could withdraw, advance notice must be
given to the pawnshop so it could withdraw the jewelry from the bank.
Respondent Lulu then requested petitioner Sicam to prepare the pawned jewelry
for withdrawal on November 6, 1987 but petitioner Sicam failed to return the
jewelry.
On September 28, 1988, respondent Lulu joined by her husband, Cesar Jorge,
filed a complaint against petitioner Sicam with the Regional Trial Court
of Makati seeking indemnification for the loss of pawned jewelry and payment of
actual, moral and exemplary damages as well as attorney's fees. The case was
docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the real party-ininterest as the pawnshop was incorporated on April 20, 1987 and known
as Agencia de R.C. Sicam, Inc; that petitioner corporation had exercised due
care and diligence in the safekeeping of the articles pledged with it and could
not be made liable for an event that is fortuitous.
Respondents subsequently filed an Amended Complaint to include petitioner
corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is concerned
considering that he is not the real party-in-interest. Respondents opposed the
same. The RTC denied the motion in an Order dated November 8, 1989.[5]
After trial on the merits, the RTC rendered its Decision [6] dated January 12,
1993, dismissing respondents complaint as well as petitioners counterclaim. The
RTC held that petitioner Sicam could not be made personally liable for a claim
arising out of a corporate transaction; that in the Amended Complaint of
respondents, they asserted that plaintiff pawned assorted jewelries in
defendants' pawnshop; and that as a consequence of the separate juridical
personality of a corporation, the corporate debt or credit is not the debt or credit
of a stockholder.
The RTC further ruled that petitioner corporation could not be held liable for the
loss of the pawned jewelry since it had not been rebutted by respondents that
the loss of the pledged pieces of jewelry in the possession of the corporation
was occasioned by armed robbery; that robbery is a fortuitous event which
exempts the victim from liability for the loss, citing the case of Austria v. Court of
Appeals;[7] and
that
the
parties
transaction
was
that
of a pledgor and pledgee and under Art. 1174 of the Civil Code, the pawnshop
as apledgee is not responsible for those events which could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision dated March
31, 2003, the CA reversed the RTC, the dispositive portion of which reads as
follows:

WHEREFORE, premises considered, the instant Appeal is GRANTED, and the

Decision dated January 12, 1993,of the Regional Trial Court of Makati, Branch
62, is hereby REVERSED and SET ASIDE, ordering the appellees to pay
appellants the actual value of the lost jewelry amounting to P272,000.00, and
attorney' fees of P27,200.00.[8]

Anent the first assigned error, petitioners point out that the CAs finding that
petitioner Sicam is personally liable for the loss of the pawned jewelries is a
virtual and uncritical reproduction of the arguments set out on pp. 5-6 of the
Appellants brief.[10]
Petitioners argue that the reproduced arguments of respondents in their
Appellants Brief suffer from infirmities, as follows:

In finding petitioner Sicam liable together with petitioner corporation, the CA

applied the doctrine of piercing the veil of corporate entity reasoning that
respondents were misled into thinking that they were dealing with the pawnshop
owned by petitioner Sicam as all the pawnshop tickets issued to them bear the
words Agencia de R.C. Sicam; and that there was no indication on the
pawnshop tickets that it was the petitioner corporation that owned the pawnshop
which
explained
why
respondents
had
to
amend
their
complaintimpleading petitioner corporation.
The CA further held that the corresponding diligence required of a pawnshop is
that it should take steps to secure and protect the pledged items and should
take steps to insure itself against the loss of articles which are entrusted to its
custody as it derives earnings from the pawnshop trade which petitioners failed
to do; that Austria is not applicable to this case since the robbery incident
happened in 1961 when the criminality had not as yet reached the levels
attained in the present day; that they are at least guilty of contributory
negligence and should be held liable for the loss of jewelries; and that robberies
and hold-ups are foreseeable risks in that those engaged in the pawnshop
business are expected to foresee.
The CA concluded that both petitioners should be jointly and severally held liable
to respondents for the loss of the pawned jewelry.
Petitioners motion for reconsideration was denied in a Resolution dated August
8, 2003.
Hence, the instant petition for review with the following assignment of errors:
THE COURT OF APPEALS ERRED AND WHEN IT DID, IT OPENED ITSELF
TO REVERSAL, WHEN IT ADOPTED UNCRITICALLY (IN FACT IT
REPRODUCED AS ITS OWN WITHOUT IN THE MEANTIME
ACKNOWLEDGING IT) WHAT THE RESPONDENTS ARGUED IN THEIR
BRIEF, WHICH ARGUMENT WAS PALPABLY UNSUSTAINABLE.
THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT OPENED ITSELF
TO REVERSAL BY THIS HONORABLE COURT, WHEN IT AGAIN ADOPTED
UNCRITICALLY (BUT WITHOUT ACKNOWLEDGING IT) THE SUBMISSIONS
OF THE RESPONDENTS IN THEIR BRIEF WITHOUT ADDING ANYTHING
MORE THERETO DESPITE THE FACT THAT THE SAID ARGUMENT OF THE
RESPONDENTS COULD NOT HAVE BEEN SUSTAINED IN VIEW OF
UNREBUTTED EVIDENCE ON RECORD.[9]

(1)
Respondents
conclusively
asserted
in
paragraph
2
of their Amended Complaint that Agencia de R.C. Sicam, Inc. is the present
owner of Agencia de R.C. Sicam Pawnshop, and therefore, the CA cannot rule
against said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not among those raised and
litigated in the trial court; and
(3) By reason of the above infirmities, it was error for the CA to have pierced the
corporate veil since a corporation has a personality distinct and separate from its
individual stockholders or members.
Anent the second error, petitioners point out that the CA finding on their
negligence is likewise an unedited reproduction of respondents brief which had
the following defects:
(1) There were unrebutted evidence on record that petitioners had observed the
diligence required of them, i.e, they wanted to open a vault with a nearby bank
for purposes of safekeeping the pawned articles but was discouraged by the
Central Bank (CB) since CB rules provide that they can only store the pawned
articles in a vault inside the pawnshop premises and no other place;
(2) Petitioners were adjudged negligent as they did not take insurance against
the loss of the pledged jelweries, but it is judicial notice that due to high
incidence of crimes, insurance companies refused to cover pawnshops and
banks because of high probability of losses due to robberies;
(3) In Hernandez v. Chairman, Commission on Audit (179 SCRA 39, 45-46), the
victim of robbery was exonerated from liability for the sum of money belonging to
others and lost by him to robbers.
Respondents filed their Comment and petitioners filed their Reply thereto. The
parties subsequently submitted their respective Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were exact
reproductions of the arguments raised in respondents (appellants) brief filed with

the CA, we find the same to be not fatally infirmed. Upon examination of the
Decision, we find that it expressed clearly and distinctly the facts and the law on
which it is based as required by Section 8, Article VIII of the Constitution. The
discretion to decide a case one way or another is broad enough to justify the
adoption of the arguments put forth by one of the parties, as long as these are
legally tenable and supported by law and the facts on records. [11]
Our jurisdiction under Rule 45 of the Rules of Court is limited to the review of
errors of law committed by the appellate court. Generally, the findings of fact of
the appellate court are deemed conclusive and we are not duty-bound to
analyze and calibrate all over again the evidence adduced by the parties in the
court a quo.[12] This rule, however, is not without exceptions, such as where the
factual findings of the Court of Appeals and the trial court are conflicting or
contradictory[13] as is obtaining in the instant case.
However, after a careful examination of the records, we find no justification to
absolve petitioner Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and adjudged
petitioner Sicam liable together with petitioner corporation. The rule is that the
veil of corporate fiction may be pierced when made as a shield to perpetrate
fraud and/or confuse legitimate issues. [14] The theory of corporate entity was not
meant to promote unfair objectives or otherwise to shield them. [15]
Notably, the evidence on record shows that at the time respondent Lulu pawned
her jewelry, the pawnshop was owned by petitioner Sicam himself. As correctly
observed by the CA, in all the pawnshop receipts issued to respondent Lulu in
September 1987, all bear the words Agencia de R. C. Sicam, notwithstanding
that the pawnshop was allegedly incorporated in April 1987. The receipts issued
after such alleged incorporation were still in the name of Agencia de R.
C. Sicam, thus inevitably misleading, or at the very least, creating the wrong
impression to respondents and the public as well, that the pawnshop was owned
solely by petitioner Sicam and not by a corporation.
Even petitioners counsel, Atty. Marcial T. Balgos, in his letter[16] dated October
15, 1987 addressed to the Central Bank, expressly referred to
petitioner Sicam as the proprietor of the pawnshop notwithstanding the alleged
incorporation in April 1987.
We also find no merit in petitioners' argument that since respondents had
alleged in their Amended Complaint that petitioner corporation is the present
owner of the pawnshop, the CA is bound to decide the case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an admission, verbal or
written, made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by showing that
it was made through palpable mistake or that no such admission was made.

Thus, the general rule that a judicial admission is conclusive upon the party
making it and does not require proof, admits of two exceptions, to wit: (1) when it
is shown that such admission was made through palpable mistake, and (2)
when it is shown that no such admission was in fact made. The latter exception
allows one to contradict an admission by denying that he made such an
admission.[17]
The Committee on the Revision of the Rules of Court explained the second
exception in this wise:
x x x if a party invokes an admission by an adverse party, but cites the
admission out of context, then the one making the admission may show that he
made no such admission, or that his admission was taken out of context.
x x x that the party can also show that he made no such
admission, i.e., not in the sense in which the admission is made to appear.
That is the reason for the modifier such because if the rule simply states that the
admission may be contradicted by showing that no admission was made, the
rule would not really be providing for a contradiction of the admission but just a
denial.[18] (Emphasis supplied).
While it is true that respondents alleged in their Amended Complaint that
petitioner corporation is the present owner of the pawnshop, they did so only
because petitioner Sicamalleged in his Answer to the original complaint filed
against him that he was not the real party-in-interest as the pawnshop was
incorporated in April 1987. Moreover, a reading of the Amended Complaint in its
entirety shows that respondents referred to both petitioner Sicam and petitioner
corporation where they (respondents) pawned their assorted pieces of jewelry
and ascribed to both the failure to observe due diligence commensurate with the
business which resulted in the loss of their pawned jewelry.
Markedly, respondents, in their Opposition to petitioners Motion to Dismiss
Amended Complaint, insofar as petitioner Sicam is concerned, averred as
follows:
Roberto C. Sicam was named the defendant in the original complaint because
the pawnshop tickets involved in this case did not show that the
R.C. Sicam Pawnshop was a corporation. In paragraph 1 of his Answer, he
admitted the allegations in paragraph 1 and 2 of the Complaint. He merely
added that defendant is not now the real party in interest in this case.
It was defendant Sicam's omission to correct the pawnshop tickets used in the
subject transactions in this case which was the cause of the instant action. He
cannot now ask for the dismissal of the complaint against him simply on the
mere allegation that his pawnshop business is now incorporated. It is a matter of
defense, the merit of which can only be reached after consideration of the
evidence to be presented in due course.[19]

Unmistakably,
the
alleged
admission
made
in
respondents'
Amended Complaint was taken out of context by petitioner Sicam to suit his own
purpose. Ineluctably, the fact that petitioner Sicam continued to issue pawnshop
receipts under his name and not under the corporation's name militates for the
piercing of the corporate veil.

Art. 1174. Except in cases expressly specified by the law, or when it is otherwise
declared by stipulation, or when the nature of the obligation requires the
assumption of risk, no person shall be responsible for those events which could
not be foreseen or which, though foreseen, were inevitable.

We likewise find no merit in petitioners' contention that the CA erred in piercing

the veil of corporate fiction of petitioner corporation, as it was not
an issue raised and litigated before the RTC.

Fortuitous events by definition are extraordinary events not foreseeable or

avoidable. It is therefore, not enough that the event should not have been
foreseen or anticipated, as is commonly believed but it must be one impossible
to foresee or to avoid. The mere difficulty to foresee the happening is not
impossibility to foresee the same. [22]

Petitioner Sicam had alleged in his Answer filed with the trial court that he was
not the real party-in-interest because since April 20, 1987, the pawnshop
business
initiated
by
him
was
incorporated
and
known
as Agencia de R.C. Sicam. In the pre-trial brief filed by petitioner Sicam, he
submitted that as far as he was concerned, the basic issue was whether he is
the real party in interest against whom the complaint should be directed. [20] In
fact, he subsequently moved for the dismissal of the complaint as to him but was
not favorably acted upon by the trial court. Moreover, the issue was squarely
passed upon, although erroneously, by the trial court in its Decision in this
manner:

To constitute a fortuitous event, the following elements must concur: (a) the
cause of the unforeseen and unexpected occurrence or of the failure of the
debtor to comply with obligations must be independent of human will; (b) it must
be impossible to foresee the event that constitutes the caso fortuito or, if it can
be foreseen, it must be impossible to avoid; (c) the occurrence must be such as
to render it impossible for the debtor to fulfill obligations in a normal manner;
and, (d) the obligor must be free from any participation in the aggravation of the
injury or loss. [23]

x x x The defendant Roberto Sicam, Jr likewise denies liability as far as he is

concerned for the reason that he cannot be made personally liable for a claim
arising from a corporate transaction.
This Court sustains the contention of the defendant Roberto C. Sicam, Jr. The
amended complaint itself asserts that plaintiff pawned assorted jewelries in
defendant's pawnshop. It has been held that as a consequence of the separate
juridical personality of a corporation, the corporate debt or credit is not the debt
or credit of the stockholder, nor is the stockholder's debt or credit that of a
corporation.[21]
Clearly, in view of the alleged incorporation of the pawnshop, the issue of
whether petitioner Sicam is personally liable is inextricably connected with the
determination of the question whether the doctrine of piercing the corporate veil
should or should not apply to the case.
The next question is whether petitioners are liable for the loss of the pawned
articles in their possession.
Petitioners insist that they are not liable since robbery is a fortuitous event and
they are not negligent at all.
We are not persuaded.
Article 1174 of the Civil Code provides:

The burden of proving that the loss was due to a fortuitous event rests on him
who invokes it.[24] And, in order for a fortuitous event to exempt one from liability,
it is necessary that one has committed no negligence or misconduct that may
have occasioned the loss. [25]
It has been held that an act of God cannot be invoked to protect a person who
has failed to take steps to forestall the possible adverse consequences of such a
loss. One's negligence may have concurred with an act of God in producing
damage and injury to another; nonetheless, showing that the immediate or
proximate cause of the damage or injury was a fortuitous event would not
exempt one from liability. When the effect is found to be partly the result of a
person's participation -- whether by active intervention, neglect or failure to act -the whole occurrence is humanized and removed from the rules applicable to
acts of God. [26]
Petitioner Sicam had testified that there was a security guard in their pawnshop
at the time of the robbery. He likewise testified that when he started the
pawnshop business in 1983, he thought of opening a vault with the nearby bank
for the purpose of safekeeping the valuables but was discouraged by the Central
Bank since pawned articles should only be stored in a vault inside the
pawnshop. The very measures which petitioners had allegedly adopted show
that to them the possibility of robbery was not only foreseeable, but actually
foreseen and anticipated. Petitioner Sicams testimony, in effect, contradicts
petitioners defense of fortuitous event.
Moreover, petitioners failed to show that they were free from any negligence by
which the loss of the pawned jewelry may have been occasioned.

Robbery per se, just like carnapping, is not a fortuitous event. It does not
foreclose the possibility of negligence on the part of herein petitioners. In Co v.
Court of Appeals,[27]the Court held:
It is not a defense for a repair shop of motor vehicles to escape liability simply
because the damage or loss of a thing lawfully placed in its possession was due
to carnapping.Carnapping per se cannot be considered as a fortuitous
event. The fact that a thing was unlawfully and forcefully taken from
another's rightful possession, as in cases of carnapping, does not
automatically give rise to a fortuitous event. To be considered as
such, carnapping entails more than the mere forceful taking of another's
property. It must be proved and established that the event was an act of
God or was done solely by third parties and that neither the claimant nor
the person alleged to be negligent has any participation. In accordance
with the Rules of Evidence, the burden of proving that the loss was due to
a fortuitous event rests on him who invokes it which in this case is the
private respondent.However, other than the police report of the
alleged carnapping incident, no other evidence was presented by private
respondent to the effect that the incident was not due to its fault. A police report
of an alleged crime, to which only private respondent is privy, does not suffice to
establish the carnapping. Neither does it prove that there was no fault on the
part of private respondent notwithstanding the parties' agreement at the pre-trial
that the car was carnapped. Carnapping does not foreclose the possibility of
fault or negligence on the part of private respondent. [28]
Just like in Co, petitioners merely presented the police report of
the Paraaque Police Station on the robbery committed based on the
report of petitioners' employees which is not sufficient to establish robbery. Such
report also does not prove that petitioners were not at fault.
On the contrary, by the very evidence of petitioners, the CA did not err in finding
that petitioners are guilty of concurrent or contributory negligence as provided in
Article 1170 of the Civil Code, to wit:
Art. 1170. Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor
thereof, are liable for damages.[29]
Article 2123 of the Civil Code provides that with regard to pawnshops and other
establishments which are engaged in making loans secured by pledges, the
special laws and regulations concerning them shall be observed,
and subsidiarily, the provisions on pledge, mortgage and antichresis.
The provision on pledge, particularly Article 2099 of the Civil Code, provides that
the creditor shall take care of the thing pledged with the diligence of a good
father of a family. This means that petitioners must take care of the pawns the
way a prudent person would as to his own property.

In this connection, Article 1173 of the Civil Code further provides:

Art. 1173. The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with
the circumstances of the persons, of time and of the place. When negligence
shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall
apply.
If the law or contract does not state the diligence which is to be observed in the
performance, that which is expected of a good father of a family shall be
required.
We expounded in Cruz v. Gangan[30] that 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 not do. [31] It is want of
care required by the circumstances.
A review of the records clearly shows that petitioners failed to exercise
reasonable care and caution that an ordinarily prudent person would have used
in the same situation. Petitioners were guilty of negligence in the operation of
their pawnshop business. Petitioner Sicam testified, thus:
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.
Q. Then how come that the robbers were able to enter the premises when
according to you there was a security guard?
A. Sir, if these robbers can rob a bank, how much more a pawnshop.
Q. I am asking you how were the robbers able to enter despite the fact that there
was a security guard?
A. At the time of the incident which happened about 1:00 and 2:00 o'clock in the
afternoon and it happened on a Saturday and everything was quiet in the
area BF Homes Paraaque they pretended to pawn an article in the pawnshop,
so one of my employees allowed him to come in and it was only when it was
announced that it was a hold up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor the pawnshop is partly
open. The combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the robbery.
Q. It is clear now that at the time of the robbery the vault was open the reason
why the robbers were able to get all the items pawned to you inside the vault.
A. Yes sir.[32]

revealing that there were no security measures adopted by petitioners in the

operation of the pawnshop. Evidently, no sufficient precaution and vigilance
were adopted by petitioners to protect the pawnshop from unlawful intrusion.
There was no clear showing that there was any security guard at all. Or if there
was one, that he had sufficient training in securing a pawnshop. Further, there is
no showing that the alleged security guard exercised all that was necessary to
prevent any untoward incident or to ensure that no suspicious individuals were
allowed to enter the premises. In fact, it is even doubtful that there was a
security guard, since it is quite impossible that he would not have noticed that
the robbers were armed with caliber .45 pistols each, which were allegedly
poked at the employees.[33] Significantly, the alleged security guard was not
presented
at
all
to
corroborate
petitioner Sicam's claim;
not
one of petitioners' employees who were present during the robbery incident
testified in court.

The robbery in the pawnshop happened in 1987, and considering the abovequoted amendment, there is no statutory duty imposed on petitioners to insure
the pawned jewelry in which case it was error for the CA to consider it as a
factor in concluding that petitioners were negligent.

Furthermore, petitioner Sicam's admission that the vault was open at the time of
robbery is clearly a proof of petitioners' failure to observe the care, precaution
and vigilance that the circumstances justly demanded. Petitioner Sicam testified
that once the pawnshop was open, the combination was already
off. Considering petitioner Sicam's testimony that the robbery took place on a
Saturday afternoon and the area in BF Homes Paraaque at that time was quiet,
there was more reason for petitioners to have exercised reasonable foresight
and diligence in protecting the pawned jewelries. Instead of taking the
precaution to protect them, they let open the vault, providing no difficulty for the
robbers to cart away the pawned articles.

In Austria, Maria Abad received from Guillermo Austria a pendant with diamonds
to be sold on commission basis, but which Abad failed to subsequently return
because of a robbery committed upon her in 1961. The incident became the
subject of a criminal case filed against several persons. Austria filed an action
against Abad and her husband (Abads) for recovery of the pendant or its value,
but the Abads set up the defense that the robbery extinguished their obligation.
The RTC ruled in favor of Austria, as the Abadsfailed to prove robbery; or, if
committed, that Maria Abad was guilty of negligence. The CA, however,
reversed the RTC decision holding that the fact of robbery was duly established
and declared the Abads not responsible for the loss of the jewelry on account of
a fortuitous event. We held that for the Abads to be relieved from the civil liability
of returning the pendant under Art. 1174 of the Civil Code, it would only be
sufficient that the unforeseen event, the robbery, took place without any
concurrent fault on the debtors part, and this can be done by preponderance of
evidence; that to be free from liability for reason of fortuitous event, the debtor
must, in addition to the casus itself, be free of any concurrent or contributory
fault or negligence.[38]

We, however, do not agree with the CA when it found petitioners negligent for
not taking steps to insure themselves against loss of the pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and Regulations for
Pawnshops, which took effect on July 13, 1973, and which was issued pursuant
to Presidential Decree No. 114, Pawnshop Regulation Act, it is provided that
pawns pledged must be insured, to wit:
Sec. 17. Insurance of Office Building and Pawns- The place of business of a
pawnshop and the pawns pledged to it must be insured against fire and
against burglary as well as for thelatter(sic), by an insurance company
accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular No. 764
which took effect on October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns The office building/premises
and pawns of a pawnshop must be insured against fire. (emphasis supplied).
where the requirement that insurance against burglary was deleted. Obviously,
the Central Bank considered it not feasible to require insurance of pawned
articles against burglary.

Nevertheless, the preponderance of evidence shows that petitioners failed to

exercise the diligence required of them under the Civil Code.
The diligence with which the law requires the individual at all times to govern his
conduct varies with the nature of the situation in which he is placed and the
importance of the act which he is to perform. [34] Thus, the cases of Austria v.
Court of Appeals,[35] Hernandez v. Chairman, Commission on Audit [36] and Cruz
v. Gangan[37] cited by petitioners in their pleadings, where the victims of robbery
were exonerated from liability, find no application to the present case.

We found in Austria that under the circumstances prevailing at the time the
Decision was promulgated in 1971, the City of Manila and its suburbs had a high
incidence of crimes against persons and property that rendered travel after
nightfall a matter to be sedulously avoided without suitable precaution and
protection; that the conduct of Maria Abad in returning alone to her house in the
evening carrying jewelry of considerable value would have been negligence per
se and would not exempt her from responsibility in the case of robbery. However
we did not hold Abad liable for negligence since, the robbery happened ten
years previously; i.e., 1961, when criminality had not reached the level of
incidence obtaining in 1971.
In contrast, the robbery in this case took place in 1987 when robbery was
already prevalent and petitioners in fact had already foreseen it as they wanted
to deposit the pawn with a nearby bank for safekeeping. Moreover, unlike

in Austria, where no negligence was committed, we found petitioners negligent

in securing their pawnshop as earlier discussed.
In Hernandez, Teodoro Hernandez was the OIC and special disbursing officer of
the Ternate Beach Project of the Philippine Tourism in Cavite. In the morning
of July 1, 1983, a Friday, he went to Manila to encash two checks covering the
wages of the employees and the operating expenses of the project. However for
some reason, the processing of the check was delayed and was completed at
about 3 p.m. Nevertheless, he decided to encash the check because the project
employees would be waiting for their pay the following day; otherwise, the
workers would have to wait until July 5, the earliest time, when the main office
would open. At that time, he had two choices: (1) return to Ternate, Cavite that
same afternoon and arrive early evening; or (2) take the money with him to his
house in Marilao, Bulacan, spend the night there, and leave for Ternate the
following day. He chose the second option, thinking it was the safer one. Thus, a
little past 3 p.m., he took a passenger jeep bound for Bulacan. While the jeep
was on Epifanio de los Santos Avenue, the jeep was held up and the money
kept by Hernandez was taken, and the robbers jumped out of the jeep and ran.
Hernandez chased the robbers and caught up with one robber who was
subsequently charged with robbery and pleaded guilty. The other robber who
held the stolen money escaped. The Commission on Audit found Hernandez
negligent because he had not brought the cash proceeds of the checks to his
office in Ternate, Cavite for safekeeping, which is the normal procedure in the
handling of funds. We held that Hernandez was not negligent in deciding
to encash the check and bringing it home to Marilao, Bulacan instead of
Ternate, Cavite due to the lateness of the hour for the following reasons: (1) he
was moved by unselfish motive for his co-employees to collect their wages and
salaries the following day, a Saturday, a non-working, because to encashthe
check on July 5, the next working day after July 1, would have caused
discomfort to laborers who were dependent on their wages for sustenance; and
(2) that choosingMarilao as a safer destination, being nearer, and in view of the
comparative hazards in the trips to the two places, said decision seemed logical
at that time. We further held that the fact that two robbers attacked him in broad
daylight in the jeep while it was on a busy highway and in the presence of other
passengers could not be said to be a result of his imprudence and negligence.
Unlike in Hernandez where the robbery happened in a public utility, the robbery
in this case took place in the pawnshop which is under the control of petitioners.
Petitioners had the means to screen the persons who were allowed entrance to
the premises and to protect itself from unlawful intrusion. Petitioners had failed
to exercise precautionary measures in ensuring that the robbers were prevented
from entering the pawnshop and for keeping the vault open for the day, which
paved the way for the robbers to easily cart away the pawned articles.
In Cruz, Dr. Filonila O. Cruz, Camanava District Director of Technological
Education and Skills Development Authority (TESDA), boarded the Light Rail
Transit (LRT) fromSen. Puyat Avenue to Monumento when her handbag was
slashed and the contents were stolen by an unidentified person. Among those

stolen were her wallet and the government-issued cellular phone. She then
reported the incident to the police authorities; however, the thief was not located,
and the cellphone was not recovered. She also reported the loss to the Regional
Director of TESDA, and she requested that she be freed from accountability for
the cellphone. The Resident Auditor denied her request on the ground that she
lacked the diligence required in the custody of government property and was
ordered to pay the purchase value in the total amount of P4,238.00. The COA
found no sufficient justification to grant the request for relief from accountability.
We reversed the ruling and found that riding the LRT cannot per se be
denounced as a negligent act more so because Cruzs mode of transit was
influenced by time and money considerations; that she boarded the LRT to be
able to arrive in Caloocan in time for her 3 pm meeting; that any prudent and
rational person under similar circumstance can reasonably be expected to do
the same; that possession of a cellphone should not hinder one from boarding
the LRT coach as Cruz did considering that whether she rode a jeep or bus, the
risk of theft would have also been present; that because of her relatively low
position and pay, she was not expected to have her own vehicle or to ride a
taxicab; she did not have a government assigned vehicle; that placing
the cellphone in a bag away from covetous eyes and holding on to that bag as
she did is ordinarily sufficient care of a cellphone while traveling on board the
LRT; that the records did not show any specific act of negligence on her part and
negligence can never be presumed.
Unlike in the Cruz case, the robbery in this case happened in petitioners'
pawnshop and they were negligent in not exercising the precautions justly
demanded of a pawnshop.
WHEREFORE, except for the insurance aspect, the Decision of the Court
of Appeals dated March 31, 2003 and its Resolution dated August 8, 2003,
are AFFIRMED.
Costs against petitioners.
SO ORDERED.

CORINTHIAN GARDENS

G.R. No. 160795

ASSOCIATION, INC.,
Petitioner,

Present:
YNARES-SANTIAGO,

Corinthian conducted periodic ocular inspections in order to determine

compliance with the approved plans pursuant to the Manual of Rules and
Regulations of Corinthian.[6] Unfortunately, after the Cuasos constructed their
house employing the services of C.B. Paraz & Construction Co., Inc. (C.B.
Paraz) as builder, their perimeter fence encroached on the Tanjangcos Lot 69 by
87 square meters.

No amicable settlement was reached between the parties. Thus, the Tanjangcos
demanded that the Cuasos demolish the perimeter fence but the latter failed and
AUSTRIA-MARTINEZ, refused, prompting the Tanjangcos to file with the RTC a suit against the Cuasos
for Recovery of Possession with Damages.[7]
CHICO-NAZARIO,
Chairperson,

- versus -

NACHURA, and
REYES, JJ.
SPOUSES REYNALDO and
MARIA LUISA TANJANGCO, and SPOUSES FRANK Promulgated:
and
TERESITA CUASO,

June 27, 2008

Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari[1] under Rule 45 of the
Rules of Civil Procedure seeking the reversal of the Court of Appeals (CA)
Decision[2] datedJanuary 31, 2003 in CA-G.R. CV No. 43217, which reversed
and set aside the Decision[3] of the Regional Trial Court (RTC) of Quezon City,
dated March 30, 1993.
The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos)
own Lots 68 and 69 covered by Transfer Certificates of Title (TCT) No.
242245[4] and 282961[5]respectively, located at Corinthian Gardens Subdivision,
Quezon City, which is managed by petitioner Corinthian Gardens Association,
Inc. (Corinthian). On the other hand, respondents-spouses Frank and Teresita
Cuaso (the Cuasos) own Lot 65 which is adjacent to the Tanjangcos lots.
Before the Cuasos constructed their house on Lot 65, a relocation survey was
necessary. As Geodetic Engineer Democrito De Dios (Engr. De Dios), operating
under the business name D.M. De Dios Realty and Surveying, conducted all the
previous surveys for the subdivision's developer, Corinthian referred Engr. De
Dios to the Cuasos. Before, during and after the construction of the said house,

Eventually, the Cuasos filed a Third-Party Complaint [8] against Corinthian, C.B.
Paraz and Engr. De Dios. The Cuasos ascribed negligence to C.B. Paraz for its
failure to ascertain the proper specifications of their house, and to Engr. De Dios
for his failure to undertake an accurate relocation survey, thereby, exposing
them to litigation. The Cuasos also faulted Corinthian for approving their
relocation survey and building plans without verifying their accuracy and in
making representations as to Engr. De Dios' integrity and competence. The
Cuasos alleged that had Corinthian exercised diligence in performing its duty,
they would not have been involved in a boundary dispute with the Tanjangcos.
Thus, the Cuasos opined that Corinthian should also be held answerable for any
damages that they might incur as a result of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of the Tanjangcos. It
ruled that the Cuasos perimeter wall encroached on the land of the Tanjangos
by 87 square meters. It, however, ruled that the Cuasos were builders in good
faith, and gave the Tanjangcos the option to sell and the Cuasos the option to
buy the encroaching portion of the land, at a price to be agreed upon by the
parties within sixty (60) days from receipt of the said Decision. In the event that
the Cuasos were unable and unwilling to purchase the said portion, the
perimeter wall should be demolished at the latters expense. The RTC also
ordered the Cuasos to pay monthly rentals of P2,000.00 commencing from the
time of the filing of the complaint. The RTC likewise held that C.B. Paraz was
grossly negligent in not taking into account the correct boundaries of Cuasos lot
when it constructed the house. It, thus, ordered C.B. Paraz to pay moral and
exemplary damages as well as attorneys fees to the Tanjangcos and the
Cuasos. The third-party complaint against Corinthian and Engr. De Dios, on the
other hand, was dismissed for lack of cause of action.
The Tanjangcos filed a Motion for Reconsideration [9] of the said RTC Decision
which the RTC, however, denied in its Order[10] dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B. Paraz all
appealed to the CA.
On appeal, the CA reversed and set aside the RTC Decision. It held that the
Cuasos acted in bad faith in land-grabbing the 87 square meter-portion of Lot 69

as of April 5, 1989. Correlatively, the CA allowed the Tanjangcos to exercise the

rights granted under Articles 449, 450, 451 and 549 of the New Civil Code,
which include the right to demand the demolition of the offending perimeter wall
after reimbursing the Cuasos the necessary expenses for the preservation of the
encroached area. The Cuasos were ordered to pay monthly rentals
of P10,000.00 for the use, enjoyment and occupancy of the lot from 1989 up to
the time they vacate the property considering the location and category of the
same. They were, likewise, ordered to pay the Tanjangcos P100,000.00, as
moral damages, P50,000.00 as exemplary damages, and P150,000.00 as
attorneys fees. The CA also imposed six percent (6%) interest per annum on all
the awards. The Cuasos appeal against the Tanjangcos, on the other hand, was
dismissed for lack of merit. On the third-party complaints, Corinthian, C.B. Paraz
and Engr. De Dios were all found negligent in performing their respective duties
and so they were ordered to contribute five percent (5%) each, or a total of
fifteen percent (15%) to all judgment sums and amounts that the Cuasos shall
eventually pay under the decision, also with interest of six percent (6%) per
annum.
Only Corinthian filed a Motion for Reconsideration [11] of the CA Decision within
the 15-day reglementary period. No motion for reconsideration was filed by the
Cuasos, C.B. Paraz and/or Engr. De Dios.
About six (6) months later, or on August 12, 2003, the Cuasos filed a
Comment/Manifestation[12] praying that they be allowed to adopt Corinthians
Motion for Reconsideration.
In its Resolution[13] dated November 14, 2003, the CA denied Corinthians Motion
for Reconsideration.
Hence, Corinthian filed the instant Petition for Review on Certiorari assailing the
CA Decision and Resolution, and impleading the Cuasos as one of the
respondents being the third-party plaintiffs in the RTC.
This Court gave due course to Corinthians petition and required the parties to
submit their respective memorandum. [14] In compliance, the Cuasos submitted
their Memorandum[15] and Supplement to Memorandum,[16] which were both
noted by this Court in its Resolutions dated January 10, 2005 [17] and February 2,
2005, [18]respectively.
In the meantime, the Tanjangcos moved for partial entry of judgment of the CA
Decision which was granted by the CA in its Resolution [19] dated May 26, 2006,
directing the issuance of an Entry of Judgment and a Certification that its
Decision dated January 31 2003 has become final and executory with respect to
the Cuasos, C.B. Paraz and Engr. De Dios for their failure to file an appeal
assailing the said Decision before this Court.
The Tanjangcos then moved for the execution of the judgment against the
Cuasos, specifically the demolition of the perimeter fence, [20] which was also
granted by the RTC in its Order[21] dated December 18, 2006.

Other than the filing of an Opposition [22] and a Motion for

Reconsideration[23] before the RTC, the Cuasos prayed for the issuance of a
temporary restraining order (TRO) and/or preliminary injunction before this Court
to enjoin the demolition of the perimeter fence. They averred that the premature
demolition of the alleged encroaching perimeter wall and other improvements
will cause grave and irreparable damage to them, because what is sought to be
demolished is part of their residence. They claimed that no amount of money will
compensate for the damage they stand to suffer should any demolition
subsequently prove to be wrongful. They argued that before any execution can
be carried out, it is necessary to first determine whether or not Corinthian was
negligent in approving the building plan and whether or not it acted in good faith
in doing so. Such determination, according to the Cuasos, will in turn determine
whether or not they were in good faith in constructing the house. [24]
The Tanjangcos opposed the Cuasos' application for TRO. They countered that
the only pending matter with this Court is the appeal by Corinthian; hence, the
implementation of the January 31, 2003 Decision of the CA against the Cuasos
will not preempt the outcome of the said pending incidents. Also, any action
taken by this Court on Corinthians petition would not benefit the Cuasos for they
did not appeal the adverse decision against them. Accordingly, they cannot
obtain affirmative relief from this Court by reason or on account of the appeal
taken by Corinthian. The appeal, they added, is personal to Corinthian. Finally,
they argued that the Cuasos are now estopped from questioning the
enforcement of the CA Decision since they issued a managers check to pay the
money judgment.[25]
In this Court's Resolution dated July 18, 2007, we denied the Cuasos'
application for TRO and/or writ of preliminary injunction for lack of merit.
The denial was based on sound legal principles. It is axiomatic that to be entitled
to the injunctive writ, one must show that there exists a right to be protected
which is directly threatened by the act sought to be enjoined. Furthermore, there
must be a showing that the invasion of the right is material and substantial, that
the right of complainant is clear and unmistakable, and that there is an urgent
and paramount necessity for the writ to issue in order to prevent serious
damage.[26]
In the Cuasos case, their right to injunctive relief had not been clearly and
unmistakably demonstrated. They failed to show proof that there is material and
substantial invasion of their right to warrant the issuance of an injunctive writ.
Indeed, the enforcement of the writ of execution, which would demolish the
Cuasos perimeter fence, is manifestly prejudicial to their interest. However, they
possess no clear and unmistakable legal right that merits protection through the
writ of preliminary injunction.[27] Their right to maintain the said fence had been
declared inferior to the Tanjangcos right to the demolition of the fence, after the
CA judgment had become final and executory as to the Cuasos.
It bears stressing that the Cuasos failed to appeal the ruling of the CA. This
failure to contest the CA decision before this Court was fatal to their cause. It
had the effect of an admission that they indeed acted in bad faith, as they

accepted the CA ruling. The decision of the CA, therefore, became binding and
final as to them.[28] As a matter of fact, the CA already issued a partial entry of
judgment against the Cuasos.

While it is true that this Court noted the Memorandum and Supplemental
Memorandum filed by the Cuasos, such notation was made only insofar
as Corinthian made them respondents in this petition. This Court cannot grant to
the Cuasos any affirmative relief as they did not file a petition questioning the CA
ruling. Consequently, the Decision of the CA holding that the Cuasos acted in
bad faith and that the perimeter fence may now be demolished cannot be put in
issue by the Cuasos. It is a fundamental principle that a party who does not
appeal, or file a petition for certiorari, is not entitled to any affirmative relief.[30] An
appellee who is not an appellant may assign errors in his brief where his
purpose is to maintain the judgment, but he cannot seek modification or reversal
of the judgment or claim affirmative relief unless he has also appealed. [31] This
applies to C.B. Paraz and Engr. De Dios who likewise failed to assail the
aforementioned CA Decision.

to pay five
percent
(5%)
of
the money
judgment
to the Tanjangcos on account of the encroachment
made
by
the
Cuasos. Likewise, it finds no legal basis for the CA to unilaterally increase the
amount of the adjudged rent from P2,000.00 to P10,000.00 which was not
prayed for by the Tanjangcos in their complaint and in the absence of evidence
adduced by the parties.[33]
On the other hand, the Tanjangcos stand by the ruling of the CA and opine that
Corinthian was negligent in approving the building plan of the Cuasos. They
submit that Corinthian's claim that it merely conducts table inspections of
buildings further bolsters their argument that Corinthian was negligent in
conveniently and unilaterally restricting and limiting the coverage of its approval,
contrary to its own Manual of Rules and Regulations; that the acceptance of a
builder's bond does not automatically make Corinthian liable but the same
affirms the fact that a homeowner can hold it liable for the consequences of the
approval of a building plan; and that Corinthian, by regularly demanding and
accepting membership dues, must be wary of its responsibility to protect the
rights and interests of its members. Lastly, the Tanjangcos contend that a court
can take judicial notice of the general increase in the rentals of real estate, as in
this case, where the CA considered the value of their lot in the posh-and-swank
Corinthian Gardens Subdivision and the fact that they were deprived of it for
almost two decades. The Tanjangcos pray that this Court sustain the ruling of
the CA.[34]

With this matter put to rest, we now go to the main issues raised by Corinthian,
the sole petitioner in this case, to wit:

The instant case is obviously one for tort, as governed by Article 2176 of the
Civil Code, which provides:

a) Whether or not there is legal basis for the Court of Appeals to hold petitioner
Corinthian Gardens Association, Inc. liable to pay 5% of the judgment money to
Sps. Tanjangco on account of the encroachment made by Sps. Cuaso[; and]
b)
Whether or not the Court of Appeals has legal basis to increase
unilaterally and without proof the amount prayed for in the
Complaint, i.e., P2,000.00, as reasonable compensation for the use and
enjoyment of the portion of the lot encroached upon, to P10,000.00.[32]

ART. 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 is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
In every tort case filed under this provision, plaintiff has to prove by a
preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the
fault or negligence of the defendant or some other person for whose act he must
respond; and (3) the connection of cause and effect between the fault or
negligence and the damages incurred.[35]

Corinthian claims that the approval of the building plan of the Cuasos was not
tainted with negligence as it did not approve the survey relocation plan but
merely the architectural, structural and sanitary plans for Cuasos' house; that
the purpose of the said approval is not to ensure that the house to be erected on
a particular lot is constructed within its boundaries but only to ensure compliance
with the Manual of Rules and Regulations; that while Corinthian conducts actual
site inspections, the inspection and approval of the building plans are limited to
table inspection only; that the survey relocation plan was never submitted for
Corinthian's approval; that the acceptance of the builder's bond did not make
Corinthian automatically liable for the encroachment and for damages; and that
Corinthian approved the building plan with the good faith and due diligence
required under the circumstances. It, thus, concludes that it cannot be held liable

Undeniably, the perimeter fence of the Cuasos encroached on Lot 69 owned by

the Tanjangcos by 87 square meters as duly found by both the RTC and the CA
in accordance with the evidence on record. As a result, the Tanjangcos suffered
damage in having been deprived of the use of that portion of their lot
encroached upon. Thus, the primordial issue to be resolved in this case is
whether Corinthian was negligent under the circumstances and, if so, whether
such negligence contributed to the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely carelessly done from a
lack of ordinary prudence and may be one which creates a situation involving an
unreasonable risk to another because of the expectable action of the other, a
third person, an animal, or a force of nature. A negligent act is one from which
an ordinary prudent person in the actor's position, in the same or similar

An injunction to stay a final and executory decision is unavailing except only

after a showing that facts and circumstances exist which would render execution
unjust or inequitable, or that a change in the situation of the parties occurred.
Here, no such exception exists as shown by the facts earlier narrated. [29]

circumstances, would foresee such an appreciable risk of harm to others as to

cause him not to do the act or to do it in a more careful manner.[36]
The test to determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in committing the alleged negligent act use
that reasonable care and caution which an ordinary person would have used in
the same situation? If not, then he is guilty of negligence. The law, in effect,
adopts the standard supplied by the imaginary conduct of the discreet
paterfamilias in 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 a man of ordinary intelligence and prudence, and determines liability
according to that standard.[37]
By this test, we find Corinthian negligent.
While the issue of Corinthian's alleged negligence is factual in character, [38] a
review by this Court is proper because the CA's factual findings differ from those
of the RTC's.[39] Thus, after a meticulous review of the evidence on record, we
hold that the CA committed no reversible error when it deviated from the findings
of fact of the RTC. The CA's findings and conclusions are substantiated by the
evidence on record and are more in accord with law and reason. Indeed, it is
clear that Corinthian failed to exercise the requisite diligence in insuring that the
Cuasos abide by its Manual of Rules and Regulations, thereby resulting in the
encroachment on the Tanjangcos property.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to justify or excuse its negligence
by claiming that its approval of the Cuasos building plans was only limited to a
so-called table inspection; and not actual site measurement. To accept some
such postulate is to put a premium on negligence. Corinthian was not organized
solely for the defendants Cuasos. It is also the subdivision of the plaintiffsspouses Tanjangcos - and of all others who have their dwelling units or abodes
therein. Pertinently, its Manual of Rules and Regulations stipulates in Section 3
thereof (under the heading Construction), thus:
A. Rules and Regulations
No new construction can be started unless the building plans are approved
by the Association and the appropriate Builders cash bond and preconstruction fees are paid. The Association will not allow the entry of
construction materials and process identification cards for workers if the above
conditions are not complied with. Likewise, all renovations, repairs, additions
and improvements to a finished house except electrical wiring, will have to be
approved by the Association. Water service connection of a homeowner who
undertakes construction work without prior approval of the Association will be
cut-off in addition to the sanctions previously mentioned.

It goes without saying that this Manual of Rules and Regulations applies to all or it does not apply at all. To borrow a popular expression, what is sauce for the
gander is sauce for the goose - or ought to be. To put it matter-of-factly and
bluntly, thus, its so-called table inspection approval of the Cuasos building plans
is no less of an approval, as approvals come and go. And since it is an approval
tainted with negligence, the necessary and inevitable consequences which law
and justice attach to such negligence must, as a matter of law and justice, also
necessarily attach to Corinthian.
And then again third party defendant-appellee Corinthian Garden required the
posting of a builders cash bond (Exh. 5-Corinthian) from the defendantsappellants Cuasos and the third-party defendant C.B. Paraz Construction to
secure the performance of their undertaking. Surely, Corinthian does not imply
that while it may take the benefits from the Builders cash bond, it may, Pilatelike, wash its hands of any responsibility or liability that would or might arise from
the construction or building of the structure for which the cash bond was in the
first place posted. That is not only unjust and immoral, but downright unchristian
and iniquitous.
Under the same parity of reasoning, the payment by the appellants-Cuasos to
the appellee Corinthian of pre-construction and membership fees in the
Association must necessarily entail the creation of certain obligations on the part
of Corinthian. For duties and responsibilities always go hand in hand with rights
and privileges. That is the law of life - and that is the law of every civilized
society. It is an axiom of equity that he who receives the benefits must share the
burdens.[40]
By its Manual of Rules and Regulations, it is reasonable to assume that
Corinthian, through its representative, in the approval of building plans, and in
the conduct of periodic inspections of on-going construction projects within the
subdivision, is responsible in insuring compliance with the approved plans,
inclusive of the construction of perimeter walls, which in this case is the subject
of dispute between the Tanjangcos and the Cuasos. [41] It is not just or equitable
to relieve Corinthian of any liability when, by its very own rules, it imposes its
authority over all its members to the end that no new construction can be started
unless the plans are approved by the Association and the appropriate cash bond
and pre-construction fees are paid. Moreover, Corinthian can impose sanctions
for violating these rules. Thus, the proposition that the inspection is merely a
table inspection and, therefore, should exempt Corinthian from liability, is
unacceptable. After all, if the supposed inspection is merely a table inspection
and the approval granted to every member is a mere formality, then the purpose
of the rules would be defeated. Compliance therewith would not be mandatory,
and
sanctions
imposed
for
violations
could
be
disregarded.
Corinthian's imprimatur on the construction of the Cuasos' perimeter wall over
the property of the Tanjangcos assured the Cuasos that everything was in order.
In sum, Corinthians failure to prevent the encroachment of the Cuasos perimeter
wall into Tanjangcos property despite the inspection conducted constitutes

negligence and, at the very least, contributed to the injury suffered by the
Tanjangcos.

Similarly, in the instant case, the Tanjangcos were deprived of possession and
use of their property for more than two decades through no fault of their own.
Thus, we find no cogent reason to disturb the monthly rental fixed by the CA.

On the second issue, our ruling in Spouses Badillo v. Tayag[42] is instructive:

All told, the CA committed no reversible error.
Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners argue
that the MTC may take judicial notice of the reasonable rental or the general
price increase of land in order to determine the amount of rent that may be
awarded to them. In that case, however, this Court relied on the CA's factual
findings, which were based on the evidence presented before the trial court. In
determining reasonable rent,
the RTC therein took account of the following factors: 1) the realty assessment
of the land, 2) the increase in realty taxes, and 3) the prevailing rate of rentals in
the vicinity. Clearly, the trial court relied, not on mere judicial notice, but on the
evidence presented before it.
Indeed, courts may fix the reasonable amount of rent for the use and occupation
of a disputed property. However, petitioners herein erred in assuming that
courts, in determining the amount of rent, could simply rely on their own
appreciation of land values without considering any evidence. As we have said
earlier, a court may fix the reasonable amount of rent, but it must still base its
action on the evidence adduced by the parties.
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court awarded
rent to the defendants in a forcible entry case. Reversing the RTC, this Court
declared that the reasonable amount of rent could be determined not by mere
judicial notice, but by supporting evidence:
x x x A court cannot take judicial notice of a factual matter in controversy. The
court may take judicial notice of matters of public knowledge, or which are
capable of unquestionable demonstration, or ought to be known to judges
because of their judicial functions. Before taking such judicial notice, the court
must allow the parties to be heard thereon. Hence, there can be no judicial
notice on the rental value of the premises in question without supporting
evidence.
Truly, mere judicial notice is inadequate, because evidence is required for a
court to determine the proper rental value. But contrary to Corinthian's
arguments, both the RTC and the CA found that indeed rent was due the
Tanjangcos because they were deprived of possession and use of their property.
This uniform factual finding of the RTC and the CA was based on the evidence
presented below. Moreover, in Spouses Catungal v. Hao,[43] we considered the
increase in the award of rentals as reasonable given the particular
circumstances of each case. We noted therein that the respondent denied the
petitioners the benefits, including rightful possession, of their property for almost
a decade.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals

is AFFIRMED. Costs against petitioner.
SO ORDERED.

THE HEIRS OF REDENTOR COMPLETO and ELPIDIO G.R. No. 172200

ABIAD,
Petitioners,
Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

Promulgated:
SGT. AMANDO C. ALBAYDA, JR.,
Respondent.

July 6, 2010

x------------------------------------------------------------------------------------x
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules
of Court, assailing the Decision[1] dated January 2, 2006 and the
Resolution[2] dated March 30, 2006 of the Court of Appeals (CA) in CA-G.R. CV
No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the
Philippine Air Force, 527th Base Security Squadron, 520 th Airbase, Philippine Air
Force, located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor
Completo (Completo), now represented by his heirs, was the taxi driver of a
Toyota Corolla, bearing Plate No. PYD-128, owned and operated by copetitioner Elpidio Abiad (Abiad).[3] Albayda and Completo figured in an accident
along the intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for
damages before the Regional Trial Court (RTC) of Pasay City. The case was
docketed as Civil Case No. 98-1333.[4]
The amended complaint alleged that, on August 27, 1997, while Albayda was on
his way to the office to report for duty, riding a bicycle along 11th Street, the taxi
driven by Completo bumped and sideswiped him, causing serious physical
injuries. Albayda was brought to the Philippine Air Force General Hospital
(PAFGH) inside VAB. However, he was immediately transferred to the Armed
Forces of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon
City, because there was a fracture in his left knee and there was no orthopedic
doctor available at PAFGH. From August 27, 1997 until February 11, 1998, he
was confined therein. He was again hospitalized at PAFGH from February 23,
1998 until March 22, 1998.[5]

Conciliation between the parties before the barangay failed. Thus, Albayda filed
a complaint for physical injuries through reckless imprudence against Completo
before the Office of the City Prosecutor of Pasay City. On the other hand,
Completo filed a counter-charge of damage to property through reckless
imprudence against Albayda. On January 13, 1998, the Office of the City
Prosecutor issued a resolution, [6] recommending the filing of an information for
reckless imprudence resulting in physical injuries against Completo. The
counter-charge of damage to property was recommended dismissed. [7]
The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45,
where Albayda manifested his reservation to file a separate civil action for
damages against petitioners Completo and Abiad.[8]
Albayda alleged that the proximate cause of the incident which necessitated his
stay in the hospital for approximately seven (7) months was the negligence of
Completo who, at the time of the accident, was in the employ of Abiad. The pain
he suffered required him to undergo medical physiotherapy for a number of
years to regain normality of his left knee joint, and he claimed that he incurred
actual damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty
Pesos (P276,550.00), inclusive of his anticipated operations. [9]
He further stated that aggravating the physical sufferings, mental anguish,
frights, serious anxiety, besmirched reputation, wounded feelings, moral shock,
and social humiliation resulting from his injuries, his wife abandoned him in May
1998, and left their children in his custody. He thus demanded the amount of Six
Hundred Thousand Pesos (P600,000.00) as moral damages. He likewise asked
for exemplary damages in the amount of Two Hundred Thousand Pesos
(P200,000.00) and attorneys fees of Twenty-Five Thousand Pesos
(P25,000.00), plus One Thousand Pesos (P1,000.00) per court appearance.[10]
In his answer to the amended complaint, Completo alleged that, on August 27,
1997, he was carefully driving the taxicab along 8th Street, VAB, when suddenly
he heard a strange sound from the rear right side of the taxicab. When he
stopped to investigate, he found Albayda lying on the road and holding his left
leg. He immediately rendered assistance and brought Albayda to PAFGH for
emergency treatment.[11]
Completo also asserted that he was an experienced driver who, in accordance
with traffic rules and regulations and common courtesy to his fellow motorists,
had already reduced his speed to twenty (20) kilometers per hour even before
reaching the intersection of 8th and 11th Streets. In contrast, Albayda rode his
bicycle at a very high speed, causing him to suddenly lose control of the bicycle
and hit the rear door on the right side of the taxicab. [12]
The deep indentation on the rear right door of the taxicab was caused by the
impact of Albaydas body that hit the taxicab after he had lost control of the
bicycle; while the slight indentation on the right front door of the taxicab was

caused by the impact of the bike that hit the taxicab after Albayda let go of its
handles when he had lost control of it.[13]
Completo maintained that Albayda had no cause of action. The accident and the
physical injuries suffered by Albayda were caused by his own negligence, and
his purpose in filing the complaint was to harass petitioners and unjustly enrich
himself at their expense.[14]
After submission of the parties respective pleadings, a pretrial conference was
held. On December 8, 1998, the RTC issued a pretrial order. Thereafter, trial on
the merits ensued.[15]
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr.
Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr.
Manuel Fidel Magtira (Dr. Magtira) as witnesses in open court. [16]
On direct examination, Navarro testified that, on August 27, 1997, at around
1:45 p.m., he saw a taxicab, with Plate No. PYD-128, coming from 11th Street,
running at an unusual speed. The normal speed should have been twenty-five
(25) kilometers per hour. He was at the corner of 9 th and 8th Streets when the
taxicab passed by him. The side of the bicycle was hit by the taxicab at the
intersection of 11th and 8th Streets. He saw Albayda fall to the ground, grimacing
in pain. The taxicab at that moment was about ten (10) meters away from
Albayda. On cross-examination, Navarro reiterated that the taxicab was running
quite fast. The bicycle ridden by Albayda reached the intersection of 8 th and
11th Streets before the taxicab hit it.[17]
Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was
admitted at AFPMC, testified that the cause of the injury was hard impact, and
recommended an operation to alleviate the suffering. On cross-examination, he
said that there was a separation of the fragments of the proximal leg, the injured
extremity, called levia. They placed the victim on knee traction or calcaneal
traction,[18] in order to avoid further swelling. They bore the calcanean bone with
a stainless steel pin so that they could put five percent (5%) of the body weight
of the patient to cool down the leg. He treated Albayda for three (3) months. He
recommended surgery, but the victim had other medical problems, like an
increase in sugar level, and they were waiting for the availability of the implant.
The implant was supposed to be placed on the lateral aspect of the proximal leg
or the levia, the part with the separation. It was a long implant with screws. [19]
Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25,
1999 because of complaints of pain and limitation of motion on the knee joint.
Upon evaluation, the pain was caused by traumatic arthritis brought about by
malunion of the lateral trivial condial. An operation of the soft tissue release was
conducted for him to mobilize his knee joint and attain proper range of motion.
After the operation, Albayda attained functional range of motion, but because of
subsisting pain, they had to do osteoplasty[20] of the malunion, which was
another operation. On cross-examination, Dr. Magtira testified that he rendered
free medical service at AFPMC.[21]

Albayda testified that he was thirty-six (36) years old and a soldier of the Armed
Forces of the Philippines. On August 27, 1997, at around 1:40 p.m., he was
riding his bike on his way to the office, located on 916 Street, VAB. He had to
stop at the corner of 11th and 8th Streets because an oncoming taxicab was
moving fast. However, the taxicab still bumped the front tire of his bike, hit his
left knee and threw him off until he fell down on the road. The taxicab stopped
about ten meters away, and then moved backwards. Its driver, Completo, just
stared at him. When somebody shouted to bring him to the hospital, two (2)
persons, one of whom was Dr. Barrosa, helped him and carried him into the
taxicab driven by Completo, who brought him to PAFGH. [22]
Upon examination, it was found that Albayda suffered fracture in his left knee
and that it required an operation. No orthopedic doctor was available at PAFGH.
Thus, he was transferred that same afternoon to AFPMC, where he was
confined until February 11, 1998.[23]
At AFPMC, Albaydas left leg was drilled on and attached to traction. When his
leg was drilled, it was so painful that he had to shout. After his release from the
hospital, he continued to suffer pain in his leg. He underwent reflexology and
therapy which offered temporary relief from pain. But after some time, he had to
undergo therapy and reflexology again.[24]
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On
June 24, 1999, he was operated on again. Wire and screw were installed so that
he could bend his knee. Nonetheless, he continued to suffer pain. As of the date
of his testimony in court, he was scheduled for another operation in January
2000, when the steel that would be installed in his leg arrives. [25]
For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6)
months of confinement; for his bed pan, One Thousand Pesos (P1,000.00); for
his twice weekly reflexology, Three Hundred Pesos (P300.00) every session
since April 1997; for his caretaker, P300.00 per day for six months. He also
asked for P600,000.00 in moral damages because Completo did not lend him a
helping hand, and he would be suffering deformity for the rest of his life. He
demanded P25,000.00 as attorneys fees and P1,000.00 for every court
appearance of his lawyer.[26]
On cross-examination, Albayda testified that, on the date of the incident, he was
the base guard at VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon,
he was not in a hurry to go to his place of work because it was only about 1:45
p.m., and his place of work was only six (6) meters away. After the accident, he
was brought to PAFGH, and at 3:00 p.m., he was brought to the AFPMC. When
he was discharged from the hospital, he could no longer walk. [27]
Dr. Barrosas testimony during cross-examination emphasized that he was with 2
other persons when he carried Albayda into the taxicab driven by Completo. He
was certain that it was not Completo who carried the victim into the taxicab. It
was only a matter of seconds when he rushed to the scene of the accident. The

taxicab backed up fifteen (15) seconds later. Albayda lay 2 meters away from
the corner of 8th and 11th Streets.[28]

3. P25,000.00 as attorneys fees.

Completo, Abiad, and Benjamin Panican (Panican) testified for the defense. [29]

Costs against the defendants [Completo and Abiad].

Completo alleged that he had been employed as taxi driver of FOJS Transport,
owned by Abiad, since February 1997. On August 27, 1997, he was driving the
taxicab, with Plate No. PYD-128, from 10:00 a.m. At around 1:45 p.m., he was
on his way home when a bicycle bumped his taxicab at the intersection of
8th and 11th Streets, VAB. The bicycle was travelling from south to north, and he
was going east coming from the west. The bicycle was coming from 11th Street,
while he was travelling along 8th Street.[30]

SO ORDERED.[36]

On cross-examination, Completo testified that when Albayda hit the rear right
door of the taxicab, the latter fell to the ground. When he heard a noise, he
immediately alighted from the taxicab. He denied that he stopped about 10
meters away from the place where Albayda fell. He carried Albayda and drove
him to the hospital.[31]
Panican testified that he worked as an airconditioner technician in a shop
located on 8th Street corner 11th Street. On the date and time of the incident, he
was working in front of the shop near the roadside. He saw a bicycle bump the
rear right side of the taxicab. Then, the driver of the taxicab alighted, carried
Albayda, and brought him to the hospital.[32]
When questioned by the trial court, Panican testified that the bicycle was
running fast and that he saw it bump the taxicab. The taxicab already passed
the intersection of 11th and 8th Streets when the bicycle arrived.[33]
Abiad testified that, aside from being a soldier, he was also a franchise holder of
taxicabs and passenger jeepneys. When Completo applied as a driver of the
taxicab, Abiad required the former to show his bio-data, NBI clearance, and
drivers license. Completo never figured in a vehicular accident since the time he
was employed in February 1997. Abiad averred that Completo was a good driver
and a good man. Being the operator of taxicab, Abiad would wake up early and
personally check all the taxicabs.[34]

Completo and Abiad filed an appeal. The CA affirmed the trial court with
modification in a Decision[37] dated January 2, 2006, viz.:
WHEREFORE, premises considered, the appeal is DENIED for lack of merit.
The
assailed
Decision
dated
31
July
2000
rendered
by
the Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98-1333 is
hereby AFFIRMED with the following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is DELETED;
2. temperate damages in the amount of Php 40,000.00 is awarded in favor of
appellee;
3. moral damages in favor of appellee is REDUCED to Php 200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are solidarily liable to pay
appellee Amando C. Albayda, Jr. said temperate and moral damages, as well as
the attorneys fees in the amount of Php 25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal interest at 6% per
annum computed from the date of promulgation of Our Decision;
6. upon finality of Our Decision, said moral and temperate damages shall earn
legal interest at the rate of 12% per annum, in lieu of 6% per annum, until full
payment. Costs against appellants.
SO ORDERED.[38]
Hence, this petition.

On July 31, 2000, the trial court rendered a decision, [35] the dispositive portion of
which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff [Albayda]
and against the defendants [Completo and Abiad]. Accordingly, the defendants
[Completo and Abiad] are hereby ordered to pay the plaintiff [Albayda] the
following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]

The Issues
Petitioners presented the following issues for resolution: (1) whether the CA
erred in finding that Completo was the one who caused the collision; (2) whether
Abiad failed to prove that he observed the diligence of a good father of the
family; and (3) whether the award of moral and temperate damages and
attorneys fees to Albayda had no basis.[39]

The Ruling of the Court

The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters which
were already passed upon by the RTC and the CA. Conclusions and findings of
fact of the trial court are entitled to great weight on appeal and should not be
disturbed unless for strong and cogent reasons, because the trial court is in a
better position to examine real evidence, as well as to observe the demeanor of
the witnesses while testifying in the case. The fact that the CA adopted the
findings of fact of the trial court makes the same binding upon this Court. Wellsettled is the rule that the Supreme Court is not a trier of facts. [40] To be sure,
findings of fact of lower courts are deemed conclusive and binding upon the
Supreme Court, save only for clear and exceptional reasons, [41] none of which is
present in the case at bar.
The instant case involved a collision between a taxicab and a bicycle which
resulted in serious physical injuries to the bicycle rider, Albayda. It is a rule in
negligence suits that the plaintiff has the burden of proving by a preponderance
of evidence the motorists breach in his duty of care owed to the plaintiff, that the
motorist was negligent in failing to exercise the diligence required to avoid injury
to the plaintiff, and that such negligence was the proximate cause of the injury
suffered.[42]
Article 2176 of the Civil Code provides that 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 is no preexisting contractual
relation between the parties, is called a quasi-delict. In this regard, the question
of the motorist's negligence is a question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise
reasonable diligence in driving the taxicab because he was over-speeding at the
time he hit the bicycle ridden by Albayda. Such negligence was the sole and
proximate cause of the serious physical injuries sustained by Albayda. Completo
did not slow down even when he approached the intersection of 8 th and
11th Streets of VAB. It was also proven that Albayda had the right of way,
considering that he reached the intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of other
vehicles lawfully on the highway, and it is fortified by the fact that usually more
will be required of a motorist than a bicyclist in discharging his duty of care to the
other because of the physical advantages the automobile has over the bicycle.
[43]

At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per
second, while a car traveling at only twenty-five miles per hour covers almost
thirty-seven feet per second, and split-second action may be insufficient to avoid

an accident. It is obvious that a motor vehicle poses a greater danger of harm to

a bicyclist than vice versa. Accordingly, while the duty of using reasonable care
falls alike on a motorist and a bicyclist, due to the inherent differences in the two
vehicles, more care is required from the motorist to fully discharge the duty than
from the bicyclist.[44] Simply stated, the physical advantages that the motor
vehicle has over the bicycle make it more dangerous to the bicyclist than vice
versa.[45]
Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also for those persons
for whom one is responsible. Employers shall be liable for the damages caused
by their employees, but the employers responsibility shall cease upon proof that
they observed all the diligence of a good father of the family in the selection and
supervision of their employees.
When an injury is caused by the negligence of an employee, a legal
presumption instantly arises that the employer was negligent. This presumption
may be rebutted only by a clear showing on the part of the employer that he
exercised the diligence of a good father of a family in the selection and
supervision of his employee. If the employer successfully overcomes the legal
presumption of negligence, he is relieved of liability. In other words, the burden
of proof is on the employer.[46]
The trial courts finding that Completo failed to exercise reasonable care to avoid
collision with Albayda at the intersection of 11th and 8th Streets of VAB gives rise
to liability on the part of Completo, as driver, and his employer Abiad. The
responsibility of two or more persons who are liable for quasi-delict is solidary.
[47]
The civil liability of the employer for the negligent acts of his employee is also
primary and direct, owing to his own negligence in selecting and supervising his
employee.[48] The civil liability of the employer attaches even if the employer is
not inside the vehicle at the time of the collision. [49]
In the selection of prospective employees, employers are required to examine
them as to their qualifications, experience, and service records. On the other
hand, with respect to the supervision of employees, employers should formulate
standard operating procedures, monitor their implementation, and impose
disciplinary measures for breaches thereof. To establish these factors in a trial
involving the issue of vicarious liability, employers must submit concrete proof,
including documentary evidence.[50]
Abiad testified that before he hired Completo, he required the latter to show his
bio-data, NBI clearance, and drivers license. Abiad likewise stressed that
Completo was never involved in a vehicular accident prior to the instant case,
and that, as operator of the taxicab, he would wake up early to personally check
the condition of the vehicle before it is used.
The protestation of Abiad to escape liability is short of the diligence required
under the law. Abiads evidence consisted entirely of testimonial evidence, and
the unsubstantiated and self-serving testimony of Abiad was insufficient to

overcome the legal presumption that he was negligent in the selection and
supervision of his driver.

The award of attorneys fees is hereby deleted for failure to prove that petitioners
acted in bad faith in refusing to satisfy respondents just and valid claim.

II. On Damages
The CA rightfully deleted the award of actual damages by the RTC because
Albayda failed to present documentary evidence to establish with certainty the
amount that he incurred during his hospitalization and treatment for the injuries
he suffered. In the absence of stipulation, actual damages are awarded only for
such pecuniary loss suffered that was duly proved.[51]
While the amount of actual damages was not duly established with certainty, the
Court recognizes the fact that, indeed, Albayda incurred a considerable amount
for the necessary and reasonable medical expenses, loss of salary and wages,
loss of capacity to earn increased wages, cost of occupational therapy, and
harm from conditions caused by prolonged immobilization. Temperate damages,
more than nominal but less than compensatory damages, may be recovered
when the court finds that some pecuniary loss has been suffered but its amount
cannot, from the nature of the case, be proved with certainty. [52] Temperate
damages must be reasonable under the circumstances. [53] Thus, the Court finds
the award of One Hundred Thousand Pesos (P100,000.00) as temperate
damages reasonable under the circumstances.

WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and
the Resolution dated March 30, 2006 of the Court of Appeals in CA-G.R. CV No.
68405 are hereby AFFIRMED with MODIFICATION, viz.:
(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily
liable to pay One Hundred Thousand Pesos (P100,000.00), as temperate
damages, and Five Hundred Thousand Pesos (P500,000.00), as moral
damages;
(2) The temperate and moral damages hereby awarded shall earn legal interest
at the rate of six percent (6%) per annum from the date of the promulgation of
this Decision. Upon finality of this Decision, an interest rate of twelve percent
(12%) per annum shall be imposed on the amount of the temperate and moral
damages until full payment thereof.
Costs against petitioners.
SO ORDERED.

Doubtless, Albayda suffered immeasurable pain because of the incident caused

by petitioners negligence. The CA explained:
The court vicariously feels the pain the plaintiff [Albayda] suffered a number of
times. After he was bumped by defendants cab, he cried in pain. When the
doctors bore holes into his left knee, he cried in pain. When he was tractioned,
when he was subjected to an operation after operation he suffered pain. When
he took the witness stand to testify, he walked with crutches, his left knee in
bandage, stiff and unfuctional. Pain was written [on] his face. He does deserve
moral damages.[54]
Moral damages are awarded in quasi-delicts causing physical injuries. The
permanent deformity and the scar left by the wounds suffered by Albayba will
forever be a reminder of the pain and suffering that he had endured and
continues to endure because of petitioners negligence. Thus, the award of moral
damages in the amount of Five Hundred Thousand Pesos (P500,000.00) is
proper.
Finally, an interest rate of six percent (6%) per annum is due on the amount
of P100,000.00, as temperate damages, and P500,000.00, as moral damages,
which we have awarded. The 6% per annum interest rate on the temperate and
moral damages shall commence to run from the date of the promulgation of this
Decision. Upon finality of the Decision, an interest rate of twelve percent (12%)
per annum shall be imposed on the amount of the temperate and moral
damages until full payment thereof.[55]

ALFREDO P. PACIS and CLEOPATRA D.

PACIS,
Petitioners,

- versus -

JEROME JOVANNE MORALES,

Respondent.

G.R. No. 169467

Present:
CARPIO, J., Chairperson,
BRION,
DEL CASTILLO,
ABAD, and
PEREZ, JJ.
Promulgated:
February 25, 2010

x--------------------------------------------------x
CARPIO, J.:
The Case
[1]

[2]

This petition for review assails the 11 May 2005 Decision and the 19 August
2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis
(petitioners) filed with the trial court a civil case for damages against respondent
Jerome Jovanne Morales (respondent). Petitioners are the parents of Alfred
Dennis Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident
inside the Top Gun Firearms and Ammunitions Store (gun store) in Baguio City.
Respondent is the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year
student at the Baguio Colleges Foundation taking up BS Computer Science,
died due to a gunshot wound in the head which he sustained while he was at the
Top Gun Firearm[s] and Ammunition[s] Store located at Upper Mabini Street,
Baguio City. The gun store was owned and operated by defendant Jerome
Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason
Herbolario. They were sales agents of the defendant, and at that particular time,
the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a
customer of the gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SNH34194 (Exhibit Q), was left by defendant Morales in a drawer of a table located
inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando Jarnague,
who was the regular caretaker of the gun store was also not around. He left
earlier and requested sales agents Matibag and Herbolario to look after the gun
store while he and defendant Morales were away. Jarnague entrusted to
Matibag and Herbolario a bunch of keys used in the gun store which included
the key to the drawer where the fatal gun was kept.
It appears that Matibag and Herbolario later brought out the gun from the drawer
and placed it on top of the table. Attracted by the sight of the gun, the young
Alfred Dennis Pacis got hold of the same. Matibag asked Alfred Dennis Pacis to

return the gun. The latter followed and handed the gun to Matibag. It went off,
the bullet hitting the young Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this
Court. Matibag, however, was acquitted of the charge against him because of
the exempting circumstance of accident under Art. 12, par. 4 of the Revised
Penal Code.
By agreement of the parties, the evidence adduced in the criminal case for
homicide against Matibag was reproduced and adopted by them as part of their
evidence in the instant case.[3]
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The
dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of
the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D. Pacis] and against the
defendant [Jerome Jovanne Morales] ordering the defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death of Alfred Pacis;
(2) P29,437.65 as actual damages for the hospitalization and burial
expenses incurred by the plaintiffs;
(3) P100,000.00 as compensatory damages;
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.
SO ORDERED.[4]
Respondent appealed to the Court of Appeals. In its Decision [5] dated 11 May
2005, the Court of Appeals reversed the trial courts Decision and absolved
respondent from civil liability under Article 2180 of the Civil Code. [6]
Petitioners filed a motion for reconsideration, which the Court of Appeals denied
in its Resolution dated 19 August 2005.
Hence, this petition.
The Trial Courts Ruling
The trial court held respondent civilly liable for the death of Alfred under Article
2180 in relation to Article 2176 of the Civil Code. [7] The trial court held that the
accidental shooting of Alfred which caused his death was partly due to the
negligence of respondents employee Aristedes Matibag (Matibag). Matibag and
Jason Herbolario (Herbolario) were employees of respondent even if they were
only paid on a commission basis. Under the Civil Code, respondent is liable for
the damages caused by Matibag on the occasion of the performance of his
duties, unless respondent proved that he observed the diligence of a good father
of a family to prevent the damage. The trial court held that respondentfailed to

observe the required diligence when he left the key to the drawer containing the
loaded defective gun without instructing his employees to be careful in handling
the loaded gun.
The Court of Appeals Ruling
The Court of Appeals held that respondent cannot be held civilly liable since
there was no employer-employee relationship between respondent and Matibag.
The Court of Appeals found that Matibag was not under the control of
respondent with respect to the means and methods in the performance of his
work. There can be no employer-employee relationship where the element of
control is absent. Thus, Article 2180 of the Civil Code does not apply in this case
and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an
employer of Matibag, still respondent cannot be held liable since no negligence
can be attributed to him. As explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship existed between
Aristedes Matibag and the defendant-appellant, we find that no negligence can
be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The
test of negligence is this:
x x x. Could a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of
the course about to be pursued? If so, the law imposes a duty on the actor to
refrain from that course or take precaution against its mischievous results, and
the failure to do so constitutes negligence. x x x.
Defendant-appellant maintains that he is not guilty of negligence and lack of due
care as he did not fail to observe the diligence of a good father of a family. He
submits that he kept the firearm in one of his table drawers, which he locked and
such is already an indication that he took the necessary diligence and care that
the said gun would not be accessible to anyone. He puts [sic] that his store is
engaged in selling firearms and ammunitions. Such items which are per
se dangerous are kept in a place which is properly secured in order that the
persons coming into the gun store would not be able to take hold of it unless it is
done intentionally, such as when a customer is interested to purchase any of the
firearms, ammunitions and other related items, in which case, he may be
allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased, defendantappellant is not to be blamed. He exercised due diligence in keeping his loaded
gun while he was on a business trip in Manila. He placed it inside the drawer
and locked it. It was taken away without his knowledge and authority. Whatever
happened to the deceased was purely accidental.[8]

The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING
THE DECISION AND RESOLUTION IN QUESTION IN DISREGARD OF LAW
AND JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL
TRIAL COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING CLEAR,
AUTHENTIC RECORDS AND TESTIMONIES PRESENTED DURING THE
TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN
RENDERING THE DECISION AND RESOLUTION IN QUESTION BY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE
REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
PETITIONERS CLEAR RIGHTS TO THE AWARD OF DAMAGES.[9]
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners
son. Under Article 1161[10] of the Civil Code, petitioners may enforce their claim
for damages based on the civil liability arising from the crime under Article
100[11] of the Revised Penal Code or they may opt to file an independent civil
action for damages under the Civil Code. In this case, instead of enforcing their
claim for damages in the homicide case filed against Matibag, petitioners opted
to file an independent civil action for damages against respondent whom they
alleged was Matibags employer. Petitioners based their claim for damages
under Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 103 [12] of the Revised
Penal Code,[13] the liability of the employer, or any person for that matter, under
Article 2176 of the Civil Code is primary and direct, based on a persons own
negligence. Article 2176 states:
Art. 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 is no pre-existing contractual relation between the parties, is
called quasi-delict and is governed by the provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun store.
Under PNP Circular No. 9, entitled the Policy on Firearms and Ammunition
Dealership/Repair, a person who is in the business of purchasing and selling of
firearms and ammunition must maintain basic security and safety requirements
of a gun dealer, otherwise his License to Operate Dealership will be suspended
or canceled.[14]

Indeed, a higher degree of care is required of someone who has in his

possession or under his control an instrumentality extremely dangerous in
character, such as dangerous weapons or substances. Such person in
possession or control of dangerous instrumentalities has the duty to take
exceptional precautions to prevent any injury being done thereby.[15] Unlike the
ordinary affairs of life or business which involve little or no risk, a business
dealing with dangerous weapons requires the exercise of a higher degree of
care.
As a gun store owner, respondent is presumed to be knowledgeable about
firearms safety and should have known never to keep a loaded weapon in his
store to avoid unreasonable risk of harm or injury to others. Respondent has the
duty to ensure that all the guns in his store are not loaded. Firearms should be
stored unloaded and separate from ammunition when the firearms are not
needed for ready-access defensive use. [16] With more reason, guns accepted by
the store for repair should not be loaded precisely because they are defective
and may cause an accidental discharge such as what happened in this case.
Respondent was clearly negligent when he accepted the gun for repair and
placed it inside the drawer without ensuring first that it was not loaded. In the
first place, the defective gun should have been stored in a vault. Before
accepting the defective gun for repair, respondent should have made sure that it
was not loaded to prevent any untoward accident. Indeed, respondent should
never accept a firearm from another person, until the cylinder or action is open
and he has personally checked that the weapon is completely unloaded. [17] For
failing to insure that the gun was not loaded, respondent himself was negligent.
Furthermore, it was not shown in this case whether respondent had a License to
Repair which authorizes him to repair defective firearms to restore its original
composition or enhance or upgrade firearms.[18]
Clearly, respondent did not exercise the degree of care and diligence required of
a good father of a family, much less the degree of care required of someone
dealing with dangerous weapons, as would exempt him from liability in this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005
Decision and the 19 August 2005 Resolution of the Court of Appeals in CAG.R. CV No. 60669. We REINSTATE the trial courts Decision dated 8 April
1998.
SO ORDERED.

G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendantappellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted
by David Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street

railway and an electric light system in the city of Manila. Its power plant is
situated at the eastern end of a small island in the Pasig River within the city of
Manila, known as the Isla del Provisor. The power plant may be reached by boat
or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.
The plaintiff, David Taylor, was at the time when he received the injuries
complained of, 15 years of age, the son of a mechanical engineer, more mature
than the average boy of his age, and having considerable aptitude and training
in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols,
about 12 years of age, crossed the footbridge to the Isla del Provisor, for the
purpose of visiting one Murphy, an employee of the defendant, who and
promised to make them a cylinder for a miniature engine. Finding on inquiry that
Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's premises. The
visit was made on a Sunday afternoon, and it does not appear that they saw or
spoke to anyone after leaving the power house where they had asked for Mr.
Murphy.
After watching the operation of the travelling crane used in handling the
defendant's coal, they walked across the open space in the neighborhood of the
place where the company dumped in the cinders and ashes from its furnaces.
Here they found some twenty or thirty brass fulminating caps scattered on the
ground. These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it two long thin wires by means of
which it may be discharged by the use of electricity. They are intended for use in
the explosion of blasting charges of dynamite, and have in themselves a
considerable explosive power. After some discussion as to the ownership of the
caps, and their right to take them, the boys picked up all they could find, hung
them on stick, of which each took end, and carried them home. After crossing
the footbridge, they met a little girl named Jessie Adrian, less than 9 years old,
and all three went to the home of the boy Manuel. The boys then made a series
of experiments with the caps. They trust the ends of the wires into an electric
light socket and obtained no result. They next tried to break the cap with a stone
and failed. Manuel looked for a hammer, but could not find one. Then they
opened one of the caps with a knife, and finding that it was filled with a yellowish
substance they got matches, and David held the cap while Manuel applied a
lighted match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting a
match to the contents of the cap, became frightened and started to run away,
received a slight cut in the neck. Manuel had his hand burned and wounded,
and David was struck in the face by several particles of the metal capsule, one

of which injured his right eye to such an extent as to the necessitate its removal
by the surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be
on the defendant's premises, nor how long they had been there when the boys
found them. It appears, however, that some months before the accident, during
the construction of the defendant's plant, detonating caps of the same size and
kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about
the time when these caps were found, similarly caps were in use in the
construction of an extension of defendant's street car line to Fort William
McKinley. The caps when found appeared to the boys who picked them up to
have been lying for a considerable time, and from the place where they were
found would seem to have been discarded as detective or worthless and fit only
to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to
prohibit or prevent visitors from entering and walking about its premises
unattended, when they felt disposed so to do. As admitted in defendant
counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will
on the uninclosed premises of the defendant, in the neighborhood of the place
where the caps were found. There is evidence that any effort ever was made to
forbid these children from visiting the defendant company's premises, although it
must be assumed that the company or its employees were aware of the fact that
they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy
on one of the interisland transports. Later he took up work in his father's office,
learning mechanical drawing and mechanical engineering. About a month after
his accident he obtained employment as a mechanical draftsman and continued
in that employment for six months at a salary of P2.50 a day; and it appears that
he was a boy of more than average intelligence, taller and more mature both
mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and
conclusively established by the evidence of record, and are substantially
admitted by counsel. The only questions of fact which are seriously disputed are
plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come
from its possession and control, and that the company or some of its employees
left them exposed on its premises at the point where they were found.
The evidence in support of these allegations is meager, and the defendant
company, apparently relying on the rule of law which places the burden of proof
of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists

that plaintiff failed in his proof. We think, however, that plaintiff's evidence is
sufficient to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or
less extensively, on the McKinley extension of the defendant company's track;
that some of these caps were used in blasting a well on the company's premises
a few months before the accident; that not far from the place where the caps
were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric
light; and that the place, in the neighborhood of which the caps were found, was
being used by the company as a sort of dumping ground for ashes and cinders.
Fulminating caps or detonators for the discharge by electricity of blasting
charges by dynamite are not articles in common use by the average citizen, and
under all the circumstances, and in the absence of all evidence to the contrary,
we think that the discovery of twenty or thirty of these caps at the place where
they were found by the plaintiff on defendant's premises fairly justifies the
inference that the defendant company was either the owner of the caps in
question or had the caps under its possession and control. We think also that
the evidence tends to disclose that these caps or detonators were willfully and
knowingly thrown by the company or its employees at the spot where they were
found, with the expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood, they being old
and perhaps defective; and, however this may be, we are satisfied that the
evidence is sufficient to sustain a finding that the company or some of its
employees either willfully or through an oversight left them exposed at a point on
its premises which the general public, including children at play, where not
prohibited from visiting, and over which the company knew or ought to have
known that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the
facts on which these conclusions are based by intimidating or rather assuming
that the blasting work on the company's well and on its McKinley extension was
done by contractors. It was conclusively proven, however, that while the
workman employed in blasting the well was regularly employed by J. G. White
and Co., a firm of contractors, he did the work on the well directly and
immediately under the supervision and control of one of defendant company's
foremen, and there is no proof whatever in the record that the blasting on the
McKinley extension was done by independent contractors. Only one witness
testified upon this point, and while he stated that he understood that a part of
this work was done by contract, he could not say so of his own knowledge, and
knew nothing of the terms and conditions of the alleged contract, or of the
relations of the alleged contractor to the defendant company. The fact having
been proven that detonating caps were more or less extensively employed on
work done by the defendant company's directions and on its behalf, we think
that the company should have introduced the necessary evidence to support its
contention if it wished to avoid the not unreasonable inference that it was the
owner of the material used in these operations and that it was responsible for

tortious or negligent acts of the agents employed therein, on the ground that this
work had been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company did not in fact
own or make use of caps such as those found on its premises, as intimated by
counsel, it was a very simple matter for it to prove that fact, and in the absence
of such proof we think that the other evidence in the record sufficiently
establishes the contrary, and justifies the court in drawing the reasonable
inference that the caps found on its premises were its property, and were left
where they were found by the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in
plaintiff's favor, upon the provisions of article 1089 of the Civil Code read
together with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasicontracts, and illicit acts and omissions or by those in which any kind of
fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair the
damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable

for damages caused by their employees in the service of the branches
in which the latter may be employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused

1 By the explosion of machines which may not have been cared for with
due diligence, and for kindling of explosive substances which may not
have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his
contention that the facts proven at the trial do not established the liability of the
defendant company under the provisions of these articles, and since we agree
with this view of the case, it is not necessary for us to consider the various
questions as to form and the right of action (analogous to those raised in the
case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would,
perhaps, be involved in a decision affirming the judgment of the court below.

exposed at the place where they were found by the plaintiff, and this latter the
proximate cause of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down
in many of the courts of last resort in the United States in the cases known as
the "Torpedo" and "Turntable" cases, and the cases based thereon.

(1) Damages to the plaintiff.

In a typical cases, the question involved has been whether a railroad company is
liable for an injury received by an infant of tender years, who from mere idle
curiosity, or for the purposes of amusement, enters upon the railroad company's
premises, at a place where the railroad company knew, or had good reason to
suppose, children would be likely to come, and there found explosive signal
torpedoes left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or where such infant
found upon the premises a dangerous machine, such as a turntable, left in such
condition as to make it probable that children in playing with it would be exposed
to accident or injury therefrom and where the infant did in fact suffer injury in
playing with such machine.

(2) Negligence by act or omission of which defendant personally, or

some person for whose acts it must respond, was guilty.

In these, and in great variety of similar cases, the great weight of authority holds
the owner of the premises liable.

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

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the
principal question was whether a railroad company was liable for in injury
received by an infant while upon its premises, from idle curiosity, or for purposes
of amusement, if such injury was, under circumstances, attributable to the
negligence of the company), the principles on which these cases turn are that
"while a railroad company is not bound to the same degree of care in regard to
mere strangers who are unlawfully upon its premises that it owes to passengers
conveyed by it, it is not exempt from responsibility to such strangers for injuries
arising from its negligence or from its tortious acts;" and that "the conduct of an
infant of tender years is not to be judged by the same rule which governs that of
adult. While it is the general rule in regard to an adult that to entitle him to
recover damages for an injury resulting from the fault or negligence of another
he must himself have been free from fault, such is not the rule in regard to an
infant of tender years. The care and caution required of a child is according to
his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."

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

These proposition are, of course, elementary, and do not admit of discussion,

the real difficulty arising in the application of these principles to the particular
facts developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating
caps been left exposed at the point where they were found, or if their owner had
exercised due care in keeping them in an appropriate place; but it is equally
clear that plaintiff would not have been injured had he not, for his own pleasure
and convenience, entered upon the defendant's premises, and strolled around
thereon without the express permission of the defendant, and had he not picked
up and carried away the property of the defendant which he found on its
premises, and had he not thereafter deliberately cut open one of the caps and
applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and
inexperience, his entry upon defendant company's premises, and the
intervention of his action between the negligent act of defendant in leaving the
caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should
be deemed to be the direct result of defendant's negligence in leaving the caps

The doctrine of the case of Railroad Company vs. Stout was vigorously
controverted and sharply criticized in several state courts, and the supreme
court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally
repudiated and disapproved the doctrine of the Turntable cases, especially that
laid down in Railroad Company vs. Stout, in a very able decision wherein it held,
in the language of the syllabus: (1) That the owner of the land is not liable to
trespassers thereon for injuries sustained by them, not due to his wanton or
willful acts; (2) that no exception to this rule exists in favor of children who are

injured by dangerous machinery naturally calculated to attract them to the

premises; (3) that an invitation or license to cross the premises of another can
not be predicated on the mere fact that no steps have been taken to interfere
with such practice; (4) that there is no difference between children and adults as
to the circumstances that will warrant the inference of an invitation or a license
to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were
indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad
Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in
Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United
States, citing and approving the doctrine laid down in England in the leading
case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases
in accord with that announced in the Railroad Company vs. Stout (supra), and
the Supreme Court of the United States, in a unanimous opinion delivered by
Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and
reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an
exhaustive and critical analysis and review of many of the adjudged cases, both
English and American, formally declared that it adhered "to the principles
announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were
as follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own
pleasure, entered upon and visited the defendant's premises, without
defendant's express permission or invitation, and while there, was by accident
injured by falling into a burning slack pile of whose existence he had no
knowledge, but which had been left by defendant on its premises without any
fence around it or anything to give warning of its dangerous condition, although
defendant knew or had reason the interest or curiosity of passers-by. On these
facts the court held that the plaintiff could not be regarded as a mere trespasser,
for whose safety and protection while on the premises in question, against the
unseen danger referred to, the defendant was under no obligation to make
provision.
We quote at length from the discussion by the court of the application of the
principles involved to the facts in that case, because what is said there is
strikingly applicable in the case at bar, and would seem to dispose of
defendant's contention that, the plaintiff in this case being a trespasser, the
defendant company owed him no duty, and in no case could be held liable for
injuries which would not have resulted but for the entry of plaintiff on defendant's
premises.
We adhere to the principles announced in Railroad Co. vs.
Stout (supra). Applied to the case now before us, they require us to hold
that the defendant was guilty of negligence in leaving unguarded the

slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely
of curiosity and pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine, and witness its
operation. It knew that the usual approach to the mine was by a narrow
path skirting its slack pit, close to its depot building, at which the people
of the village, old and young, would often assemble. It knew that
children were in the habit of frequenting that locality and playing around
the shaft house in the immediate vicinity of the slack pit. The slightest
regard for the safety of these children would have suggested that they
were in danger from being so near a pit, beneath the surface of which
was concealed (except when snow, wind, or rain prevailed) a mass of
burning coals into which a child might accidentally fall and be burned to
death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see
the mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make
provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a
highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his
neighbor's dogs be so attracted and thereby injured, an action on the
case would lie. "What difference," said Lord Ellenborough, C.J., "is there
in reason between drawing the animal into the trap by means of his
instinct which he can not resist, and putting him there by manual force?"
What difference, in reason we may observe in this case, is there
between an express license to the children of this village to visit the
defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without
objection or warning, to do so at will, for purposes of curiosity or
pleasure? Referring it the case of Townsend vs. Wathen, Judge
Thompson, in his work on the Law of Negligence, volume 1, page 305,
note, well says: "It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with stinking meat,
so that his neighbor's dog attracted by his natural instinct, might run into
it and be killed, and which would exempt him from liability for the
consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and
tempted to intermeddle with it by instincts equally strong, might thereby
be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in
the case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike

instincts and impulses; and others who are chargeable with a duty of
care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in
their immature judgment might naturally suppose they were at liberty to
handle or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of
implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an
implied license might sometimes arise when it would not on behalf of
others. Thus leaving a tempting thing for children to play with exposed,
where they would be likely to gather for that purpose, may be equivalent
to an invitation to them to make use of it; and, perhaps, if one were to
throw away upon his premises, near the common way, things tempting
to children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its
conclusion in the cases of Railroad Co. vs. Stout (supra) and Union Pacific
Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this
jurisdiction than in that wherein those cases originated. Children here are
actuated by similar childish instincts and impulses. Drawn by curiosity and
impelled by the restless spirit of youth, boys here as well as there will usually be
found whenever the public is permitted to congregate. The movement of
machinery, and indeed anything which arouses the attention of the young and
inquiring mind, will draw them to the neighborhood as inevitably as does the
magnet draw the iron which comes within the range of its magnetic influence.
The owners of premises, therefore, whereon things attractive to children are
exposed, or upon which the public are expressly or impliedly permitted to enter
or upon which the owner knows or ought to know children are likely to roam
about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say
that because the child has entered upon his premises without his express
permission he is a trespasser to whom the owner owes no duty or obligation
whatever. The owner's failure to take reasonable precautions to prevent the child
from entering his premises at a place where he knows or ought to know that
children are accustomed to roam about of to which their childish instincts and
impulses are likely to attract them is at least equivalent to an implied license to
enter, and where the child does enter under such conditions the owner's failure
to take reasonable precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is clearly a breach of
duty, responsible, if the child is actually injured, without other fault on its part
than that it had entered on the premises of a stranger without his express
invitation or permission. To hold otherwise would be expose all the children in
the community to unknown perils and unnecessary danger at the whim of the

owners or occupants of land upon which they might naturally and reasonably be
expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is
contention that a man has a right to do what will with his own property or that
children should be kept under the care of their parents or guardians, so as to
prevent their entering on the premises of others is of sufficient weight to put in
doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to
injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No.
5060, decided January 26, 1910), and except as to infants of very tender years it
would be absurd and unreasonable in a community organized as is that in which
we lived to hold that parents or guardian are guilty of negligence or imprudence
in every case wherein they permit growing boys and girls to leave the parental
roof unattended, even if in the event of accident to the child the negligence of
the parent could in any event be imputed to the child so as to deprive it a right to
recover in such cases a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant
from responsibility for injuries incurred there by plaintiff, without other fault on his
part, if such injury were attributable to the negligence of the defendant, we are of
opinion that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly
speaking, "attributable to the negligence of the defendant," and, on the other
hand, we are satisfied that plaintiffs action in cutting open the detonating cap
and putting match to its contents was the proximate cause of the explosion and
of the resultant injuries inflicted upon the plaintiff, and that the defendant,
therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that
because of plaintiff's youth the intervention of his action between the negligent
act of the defendant in leaving the caps exposed on its premises and the
explosion which resulted in his injury should not be held to have contributed in
any wise to the accident; and it is because we can not agree with this
proposition, although we accept the doctrine of the Turntable and Torpedo
cases, that we have thought proper to discuss and to consider that doctrine at
length in this decision. As was said in case of Railroad Co. vs. Stout (supra),
"While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must
himself have been free from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is according to his
maturity and capacity only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown, under the reasoning on
which rests the doctrine of the Turntable and Torpedo cases, no fault which
would relieve defendant of responsibility for injuries resulting from its negligence

can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of

his entry upon defendant's uninclosed premises without express permission or
invitation' but it is wholly different question whether such youth can be said to
have been free from fault when he willfully and deliberately cut open the
detonating cap, and placed a match to the contents, knowing, as he undoubtedly
did, that his action would result in an explosion. On this point, which must be
determined by "the particular circumstances of this case," the doctrine laid down
in the Turntable and Torpedo cases lends us no direct aid, although it is worthy
of observation that in all of the "Torpedo" and analogous cases which our
attention has been directed, the record discloses that the plaintiffs, in whose
favor judgments have been affirmed, were of such tender years that they were
held not to have the capacity to understand the nature or character of the
explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of
15, more mature both mentally and physically than the average boy of his age;
he had been to sea as a cabin boy; was able to earn P2.50 a day as a
mechanical draftsman thirty days after the injury was incurred; and the record
discloses throughout that he was exceptionally well qualified to take care of
himself. The evidence of record leaves no room for doubt that, despite his
denials on the witness stand, he well knew the explosive character of the cap
with which he was amusing himself. The series of experiments made by him in
his attempt to produce an explosion, as described by the little girl who was
present, admit of no other explanation. His attempt to discharge the cap by the
use of electricity, followed by his efforts to explode it with a stone or a hammer,
and the final success of his endeavors brought about by the application of a
match to the contents of the caps, show clearly that he knew what he was about.
Nor can there be any reasonable doubt that he had reason to anticipate that the
explosion might be dangerous, in view of the fact that the little girl, 9 years of
age, who was within him at the time when he put the match to the contents of
the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of
the explosion which might be expected from the ignition of the contents of the
cap, and of course he did not anticipate the resultant injuries which he incurred;
but he well knew that a more or less dangerous explosion might be expected
from his act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his maturity and
capacity" he exercised such and "care and caution" as might reasonably be
required of him, or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the
necessary capacity to understand and appreciate the nature and consequences
of his own acts, so as to make it negligence on his part to fail to exercise due
care and precaution in the commission of such acts; and indeed it would be
impracticable and perhaps impossible so to do, for in the very nature of things

the question of negligence necessarily depends on the ability of the minor to

understand the character of his own acts and their consequences; and the age
at which a minor can be said to have such ability will necessarily depends of his
own acts and their consequences; and at the age at which a minor can be said
to have such ability will necessarily vary in accordance with the varying nature of
the infinite variety of acts which may be done by him. But some idea of the
presumed capacity of infants under the laws in force in these Islands may be
gathered from an examination of the varying ages fixed by our laws at which
minors are conclusively presumed to be capable of exercising certain rights and
incurring certain responsibilities, though it can not be said that these provisions
of law are of much practical assistance in cases such as that at bar, except so
far as they illustrate the rule that the capacity of a minor to become responsible
for his own acts varies with the varying circumstances of each case. Under the
provisions of the Penal Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally responsible therefore,
although the fact that he is less than eighteen years of age will be taken into
consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose which parent it
prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse to be
adopted (Id., sec. 765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and
understanding to be sensible of the danger to which he exposed himself when
he put the match to the contents of the cap; that he was sui juris in the sense
that his age and his experience qualified him to understand and appreciate the
necessity for the exercise of that degree of caution which would have avoided
the injury which resulted from his own deliberate act; and that the injury incurred
by him must be held to have been the direct and immediate result of his own
willful and reckless act, so that while it may be true that these injuries would not
have been incurred but for the negligence act of the defendant in leaving the
caps exposed on its premises, nevertheless plaintiff's own act was the proximate
and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non
intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to
him through his own fault, and that he can not demand reparation
therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own
acts the grievance should be against himself and not against another.
(Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his

own acts the grievance should be against himself and not against
another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which
expressly lays down the law touching contributory negligence in this jurisdiction,
nevertheless, the interpretation placed upon its provisions by the supreme court
of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to
recover damages from the defendant, in whole or in part, for the injuries
sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code,
fault or negligence is a source of obligation when between such
negligence and the injury there exists the relation of cause and effect;
but if the injury produced should not be the result of acts or omissions of
a third party, the latter has no obligation to repair the same, although
such acts or omission were imprudent or unlawful, and much less when
it is shown that the immediate cause of the injury was the negligence of
the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the
alleged fault or negligence is not sufficient without proof that it, and no other
cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that
title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455),
commenting on the decision of March 7, 1902 of the Civil Code, fault or
negligence gives rise to an obligation when between it and the damage
there exists the relation of cause and effect; but if the damage caused
does not arise from the acts or omissions of a third person, there is no
obligation to make good upon the latter, even though such acts or
omissions be imprudent or illegal, and much less so when it is shown
that the immediate cause of the damage has been the recklessness of
the injured party himself.
And again
In accordance with the fundamental principle of proof, that the burden
thereof is upon the plaintiff, it is apparent that it is duty of him who shall
claim damages to establish their existence. The decisions of April 9,

1896, and March 18, July, and September 27, 1898, have especially
supported the principle, the first setting forth in detail the necessary
points of the proof, which are two: An act or omission on the part of the
person who is to be charged with the liability, and the production of the
damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or
effect between the act or omission and the damage; the latter must be
the direct result of one of the first two. As the decision of March 22,
1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily
presupposing a legal ground for imputability." (Decision of October 29,
1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was
definitely settled in this court in the maturely considered case of Rakes vs.
Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are
many cases (personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the supreme court
of Spain "define the effect to be given the negligence of its causes, though not
the principal one, and we are left to seek the theory of the civil law in the
practice of other countries;" and in such cases we declared that law in this
jurisdiction to require the application of "the principle of proportional damages,"
but expressly and definitely denied the right of recovery when the acts of the
injured party were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured
party shall be considered immediate causes of the accident. The test is
simple. Distinction must be made between the accident and the injury,
between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it, independent of
it, but contributing to his own proper hurt. For instance, the cause of the
accident under review was the displacement of the crosspiece or the
failure to replace it. This produces the event giving occasion for
damagesthat is, the sinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the side of the car
did not contribute, although it was an element of the damage which

came to himself. Had the crosspiece been out of place wholly or partly
through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have
been responsible. Where he contributes to the principal occurrence, as
one of its determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should
pay for such injury, less a sum deemed a suitable equivalent for his own
imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate
cause of the explosion, the accident which resulted in plaintiff's injury, was in his
own act in putting a match to the contents of the cap, and that having
"contributed to the principal occurrence, as one of its determining factors, he can
not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in
picking up upon defendant's premises the detonating caps, the property of
defendant, and carrying the relation of cause and effect between the negligent
act or omission of the defendant in leaving the caps exposed on its premises
and the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of
very tender years would have no effect in relieving defendant of responsibility,
but whether in view of the well-known fact admitted in defendant's brief that
"boys are snappers-up of unconsidered trifles," a youth of the age and maturity
of plaintiff should be deemed without fault in picking up the caps in question
under all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the
judgment of the court below, without costs to either party in this instance, and
ten days thereafter let the record be returned to the court wherein it originated,
where the judgment will be entered in favor of the defendant for the costs in first
instance and the complaint dismissed without day. So ordered.
G.R. No. L-32611

November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:

This action was instituted in the Court of First Instance of Manila by the Culion
Ice, Fish & Electric Co., Inc., for the purpose of recovering from the Philippine
Motors Corporation the sum of P11,350, with interest and costs. Upon hearing
the cause the trial court gave judgment in favor of the plaintiff to recover of the
defendant the sum of P9,850, with interest at 6 per centum per annum from
March 24,1927, the date of the filing of the complaint, until satisfaction of the
judgment, with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of the
incident with which we are here concerned, H.D. Cranston was the
representative of the plaintiff in the City of Manila. At the same time the plaintiff
was the registered owner of the motor schooner Gwendoline, which was used in
the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if
practicable, to have the engine on the Gwendolinechanged from a gasoline
consumer to a crude oil burner, expecting thereby to effect economy in the cost
of running the boat. He therefore made known his desire to McLeod & Co., a
firm dealing in tractors, and was told by Mc Kellar, of said company, that he
might make inquiries of the Philippine Motors Corporations, which had its office
on Ongpin Street, in the City of Manila. Cranston accordingly repaired to the
office of the Philippine Motors Corporation and had a conference with C.E.
Quest, its manager, who agreed to do the job, with the understanding that
payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as an
automobile agency, but, under its charter, it had authority to deal in all sorts of
machinery engines and motors, as well as to build, operate, buy and sell the
same and the equipment therof. Quest, as general manager, had full charge of
the corporations in all its branches.

apparently not well fitted at the point where it was connected with the tank.
Owing to this fact the fuel mixture leaked from the tank and dripped sown into
the engine compartment. The new fuel line and that already in use between the
gasoline tank and carburetor were so fixed that it was possible to change from
the gasoline fuel to the mixed fuel. The purpose of this arrangement was to
enable the operator to start the engine on gasoline and then, after the engine
had been operating for a few moments, to switch to the new fuel
supply. lawphil.net
In the course of the preliminary work upon the carburetor and its connections, it
was observed that the carburetor was flooding, and that the gasoline, or other
fuel, was trickling freely from the lower part to the carburetor to the floor. This
fact was called to Quest's attention, but he appeared to think lightly of the matter
and said that, when the engine had gotten to running well, the flooding would
disappear.
After preliminary experiments and adjustments had been made the boat was
taken out into the bay for a trial run at about 5 p.m. or a little later, on the
evening of January 30,1925. The first part of the course was covered without
any untoward development, other than he fact that the engine stopped a few
times, owing no doubt to the use of an improper mixture of fuel. In the course of
the trial Quest remained outside of the engine compartment and occupied
himself with making distillate, with a view to ascertaining what proportion of the
two elements would give best results in the engine.

As a result of the aforesaid interview, Quest, in company with Cranston, visited

the Gwendoline while it lay at anchor in the Pasig River, and the work of
effecting the change in the engine was begun and conducted under the
supervision of Quest, chiefly by a mechanic whom Quest took with him to the
boat. In this work Quest had the assistance of the members of the crew of
the Gwendoline, who had been directed by Cranston to place themselves under
Quest's directions.

As the boat was coming in from this run, at about 7:30 p.m. and when passing
near Cavite, the engine stopped, and connection again had to be made with the
gasoline line to get a new start. After this had been done the mechanic, or
engineer, switched to the tube connecting with the new mixture. A moment later
a back fire occurred in the cylinder chamber. This caused a flame to shoot back
into the carburetor, and instantly the carburetor and adjacent parts were covered
with a mass of flames, which the members of the crew were unable to subdue.
They were therefore compelled, as the fire spread, to take to a boat, and their
escape was safely effected, but theGwendoline was reduced to a mere hulk.
The salvage from, the wreck, when sold, brought only the sum of P150. The
value of the boat, before the accident occured, as the court found, was P10,000.

Upon preliminary inspection of the engine, Quest came to the conclusion that
the principal thing necessary to accomplish the end in view was to install a new
carburetor, and a Zenith carburetor was chosen as the one most adapted to the
purpose. After this appliance had been installed, the engine was tried with
gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the
carburetor the baser fuel, consisting of a low grade of oil mixed with distillate.
For this purpose a temporary tank to contain the mixture was placed on deck
above and at a short distance from the compartment covering the engine. This
tank was connected with the carburetor by a piece of tubing, which was

A study of the testimony lead us to the conclusion that the loss of this boat was
chargeable to the negligence and lack of skill of Quest. The temporary tank in
which the mixture was prepared was apparently at too great an elevation from
the carburetor, with the result that when the fuel line was opened, the hydrostatic
pressure in the carburetor was greater than the delicate parts of the carburetor
could sustain. This was no doubt the cause of the flooding of the carburetor; and
the result was that; when the back fire occurred, the external parts of the
carburetor, already saturated with gasoline, burst into flames, whence the fire
was quickly communicated to the highly inflammable material near-by. Ordinarily
a back fire from an engine would not be followed by any disaster, but in this case

the leak along the pipe line and the flooding of the carburetor had created a
dangerous situation, which a prudent mechanic, versed in repairs of this nature,
would have taken precautions to avoid. The back fire may have been due either
to the fact that the spark was too advanced or the fuel improperly mixed.
In this connection it must be remembered that when a person holds himself out
as being competent to do things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of one ordinarily skilled in
the particular work which he attempts to do. The proof shows that Quest had
had ample experience in fixing the engines of automobiles and tractors, but it
does not appear that he was experienced in the doing of similar work on boats.
For this reason, possibly the dripping of the mixture form the tank on deck and
the flooding of the carburetor did not convey to his mind an adequate impression
of the danger of fire. But a person skilled in that particular sort of work would, we
think have been sufficiently warned from those circumstances to cause him to
take greater and adequate precautions against the danger. In other words Quest
did not use the skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in our opinion, on the part
of Quest, a blameworthy antecedent inadvertence to possible harm, and this
constitutes negligence. The burning of the Gwendoline may be said to have
resulted from accident, but this accident was in no sense an unavoidable
accident. It would not have occured but for Quest's carelessness or lack of skill.
The test of liability is not whether the injury was accidental in a sense, but
whether Quest was free from blame.

with the situation now under consideration. But though defendant cannot be held
liable in the supposition that the burden of proof had not been sustained by it in
disproving the negligence of its manager, we are nevertheless of the opinion that
the proof shows by a clear preponderance that the accident to
the Gwendoline and the damages resulting therefrom are chargeable to the
negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question had
occured, and after Quest had ceased to be manager of the defendant
corporation and had gone back to the United States. Upon these facts, the
defendant bases the contention that the action should be considered stale. It is
sufficient reply to say that the action was brought within the period limited by the
statute of limitations and the situation is not one where the defense of laches
can be properly invoked.
It results that the judgment appealed from, awarding damages to the plaintiff in
the amount of P9,850, with interest, must be affirmed; and it is so ordered, with
costs against the appellant.

We therefore see no escape from the conclusion that this accident is chargeable
to lack of skill or negligence in effecting the changes which Quest undertook to
accomplish; and even supposing that our theory as to the exact manner in which
the accident occurred might appear to be in some respects incorrect, yet the
origin of the fire in not so inscrutable as to enable us to say that it was casus
fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as Quest
had control of the Gwendolineduring the experimental run, the defendant
corporation was in the position of a bailee and that, as a consequence, the
burden of proof was on the defendant to exculpate itself from responsibility by
proving that the accident was not due to the fault of Quest. We are unable to
accede to this point of view. Certainly, Quest was not in charge of the navigation
of the boat on this trial run. His employment contemplated the installation of new
parts in the engine only, and it seems rather strained to hold that the defendant
corporation had thereby become bailee of the boat. As a rule workmen who
make repairs on a ship in its owner's yard, or a mechanic who repairs a coach
without taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true bailee
acquires possession and what is usually spoken of as special property in the
chattel bailed. As a consequence of such possession and special property, the
bailee is given a lien for his compensation. These ideas seem to be incompatible

G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,

LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by
their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffsappellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffsappellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its way to
Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about
eighteen passengers, including the driver and conductor. Among the passengers
were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara,
sated to the right of Bataclan, another passenger apparently from the Visayan
Islands whom the witnesses just called Visaya, apparently not knowing his
name, seated in the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that
same morning, while the bus was running within the jurisdiction of Imus, Cavite,
one of the front tires burst and the vehicle began to zig-zag until it fell into a
canal or ditch on the right side of the road and turned turtle. Some of the
passengers managed to leave the bus the best way they could, others had to be
helped or pulled out, while the three passengers seated beside the driver,
named Bataclan, Lara and the Visayan and the woman behind them named
Natalia Villanueva, could not get out of the overturned bus. Some of the
passengers, after they had clambered up to the road, heard groans and moans
from inside the bus, particularly, shouts for help from Bataclan and Lara, who
said they could not get out of the bus. There is nothing in the evidence to show
whether or not the passengers already free from the wreck, including the driver
and the conductor, made any attempt to pull out or extricate and rescue the four
passengers trapped inside the vehicle, but calls or shouts for help were made to
the houses in the neighborhood. After half an hour, came about ten men, one of
them carrying a lighted torch made of bamboo with a wick on one end, evidently
fueled with petroleum. These men presumably approach the overturned bus,
and almost immediately, a fierce fire started, burning and all but consuming the
bus, including the four passengers trapped inside it. It would appear that as the
bus overturned, gasoline began to leak and escape from the gasoline tank on
the side of the chassis, spreading over and permeating the body of the bus and
the ground under and around it, and that the lighted torch brought by one of the
men who answered the call for help set it on fire.
That same day, the charred bodies of the four deemed passengers inside the
bus were removed and duly identified that of Juan Bataclan. By reason of his
death, his widow, Salud Villanueva, in her name and in behalf of her five minor
children, brought the present suit to recover from Mariano Medina
compensatory, moral, and exemplary damages and attorney's fees in the total
amount of P87,150. After trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the
merchandise being carried by Bataclan to Pasay City for sale and which was
lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value
involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its
passengers and their goods. For purposes of reference, we are reproducing the
pertinent codal provisions:
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 1745, Nos. 5, 6, and 7, while the
extra ordinary diligence for the safety of the passengers is further set
forth in articles 1755 and 1756.
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 a due regard for all the circumstances.
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 in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the
scope of their authority or in violation of the order of the common
carriers.
This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection
and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a
passenger on account of the willful acts or negligence of other
passengers or of strangers, if the common carrier's employees through
the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to carry
Bataclan safely to his destination, Pasay City. We also agree with the trial court
that there was negligence on the part of the defendant, through his agent, the
driver Saylon. There is evidence to show that at the time of the blow out, the bus
was speeding, as testified to by one of the passengers, and as shown by the
fact that according to the testimony of the witnesses, including that of the

defense, from the point where one of the front tires burst up to the canal where
the bus overturned after zig-zaging, there was a distance of about 150 meters.
The chauffeur, after the blow-out, must have applied the brakes in order to stop
the bus, but because of the velocity at which the bus must have been running,
its momentum carried it over a distance of 150 meters before it fell into the canal
and turned turtle.
There is no question that under the circumstances, the defendant carrier is
liable. The only question is to what degree. The trial court was of the opinion that
the proximate cause of the death of Bataclan was not the overturning of the bus,
but rather, the fire that burned the bus, including himself and his co-passengers
who were unable to leave it; that at the time the fire started, Bataclan, though he
must have suffered physical injuries, perhaps serious, was still alive, and so
damages were awarded, not for his death, but for the physical injuries suffered
by him. We disagree. A satisfactory definition of proximate cause is found in
Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffsappellants in their brief. It is as follows:
. . . '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.' And more comprehensively, 'the
proximate legal cause is that acting first and producing the injury, either
immediately or by setting 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 effecting 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 ordinary 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.
It may be that ordinarily, when a passenger bus overturns, and pins down a
passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by lightning,
or if some highwaymen after looting the vehicle sets it on fire, and the passenger
is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under
the circumstances obtaining in the same, we do not hesitate to hold that the
proximate cause was the overturning of the bus, this for the reason that when
the vehicle turned not only on its side but completely on its back, the leaking of
the gasoline from the tank was not unnatural or unexpected; that the coming of
the men with a lighted torch was in response to the call for help, made not only
by the passengers, but most probably, by the driver and the conductor
themselves, and that because it was dark (about 2:30 in the morning), the
rescuers had to carry a light with them, and coming as they did from a rural area
where lanterns and flashlights were not available; and what was more natural

than that said rescuers should innocently approach the vehicle to extend the aid
and effect the rescue requested from them. In other words, the coming of the
men with a torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed
to the negligence of the carrier, through is driver and its conductor. According to
the witness, the driver and the conductor were on the road walking back and
forth. They, or at least, the driver should and must have known that in the
position in which the overturned bus was, gasoline could and must have leaked
from the gasoline tank and soaked the area in and around the bus, this aside
from the fact that gasoline when spilled, specially over a large area, can be
smelt and directed even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to warn the rescuers
not to bring the lighted torch too near the bus. Said negligence on the part of the
agents of the carrier come under the codal provisions above-reproduced,
particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the earning
capacity of the deceased, as well as the other elements entering into a damage
award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS
would constitute satisfactory compensation, this to include compensatory, moral,
and other damages. We also believe that plaintiffs are entitled to attorney's fees,
and assessing the legal services rendered by plaintiffs' attorneys not only in the
trial court, but also in the course of the appeal, and not losing sight of the able
briefs prepared by them, the attorney's fees may well be fixed at EIGHT
HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased
in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According
to the evidence, one of the passengers who, because of the injuries suffered by
her, was hospitalized, and while in the hospital, she was visited by the defendant
Mariano Medina, and in the course of his visit, she overheard him speaking to
one of his bus inspectors, telling said inspector to have the tires of the bus
changed immediately because they were already old, and that as a matter of
fact, he had been telling the driver to change the said tires, but that the driver did
not follow his instructions. If this be true, it goes to prove that the driver had not
been diligent and had not taken the necessary precautions to insure the safety
of his passengers. Had he changed the tires, specially those in front, with new
ones, as he had been instructed to do, probably, despite his speeding, as we
have already stated, the blow out would not have occurred. All in all, there is
reason to believe that the driver operated and drove his vehicle negligently,
resulting in the death of four of his passengers, physical injuries to others, and
the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally
dismissed, because according to the fiscal, the witnesses on whose testimony
he was banking to support the complaint, either failed or appear or were
reluctant to testify. But the record of the case before us shows the several

witnesses, passengers, in that bus, willingly and unhesitatingly testified in court

to the effect of the said driver was negligent. In the public interest the
prosecution of said erring driver should be pursued, this, not only as a matter of
justice, but for the promotion of the safety of passengers on public utility buses.
Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the
trial court are increased from ONE THOUSAND (P1,000) PESOS TO SIX
THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT
HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees,
respectively, the decision appealed is from hereby affirmed, with costs.

G.R. No. L-65295

March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U.

CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private
respondent Leonardo Dionisio was on his way home he lived in 1214-B

Zamora Street, Bangkal, Makati from a cocktails-and-dinner meeting with his

boss, the general manager of a marketing corporation. During the cocktails
phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was
driving his Volkswagen car and had just crossed the intersection of General
Lacuna and General Santos Streets at Bangkal, Makati, not far from his home,
and was proceeding down General Lacuna Street, when his car headlights (in
his allegation) suddenly failed. He switched his headlights on "bright" and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his
car. The dump truck, owned by and registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right hand side of General
Lacuna Street (i.e., on the right hand side of a person facing in the same
direction toward which Dionisio's car was proceeding), facing the oncoming
traffic. The dump truck was parked askew (not parallel to the street curb) in such
a manner as to stick out onto the street, partly blocking the way of oncoming
traffic. There were no lights nor any so-called "early warning" reflector devices
set anywhere near the dump truck, front or rear. The dump truck had earlier that
evening been driven home by petitioner Armando U. Carbonel, its regular driver,
with the permission of his employer Phoenix, in view of work scheduled to be
carried out early the following morning, Dionisio claimed that he tried to avoid a
collision by swerving his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision, Dionisio suffered some physical
injuries including some permanent facial scars, a "nervous breakdown" and loss
of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of
Pampanga basically claiming that the legal and proximate cause of his injuries
was the negligent manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other
hand, countered that the proximate cause of Dionisio's injuries was his own
recklessness in driving fast at the time of the accident, while under the influence
of liquor, without his headlights on and without a curfew pass. Phoenix also
sought to establish that it had exercised due rare in the selection and
supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and
Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00
for hospital bills and the replacement of the lost dentures of
plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.00 as loss of expected income for plaintiff brought about the
accident in controversy and which is the result of the negligence
of the defendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000.
as moral damages for the unexpected and sudden withdrawal of
plaintiff from his lifetime career as a marketing man; mental
anguish, wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity, and the
untold sorrows and frustration in life experienced by plaintiff and
his family since the accident in controversy up to the present
time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00
as damages for the wanton disregard of defendants to settle
amicably this case with the plaintiff before the filing of this case
in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P
4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court
in CA-G.R. No. 65476 affirmed the decision of the trial court but modified the
award of damages to the following extent:
1. The award of P15,000.00 as compensatory
damages was reduced to P6,460.71, the latter
being the only amount that the appellate court
found the plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of
expected
income
was
reduced
to P100,000.00,basically because Dionisio had
voluntarily resigned his job such that, in the
opinion of the appellate court, his loss of
income "was not solely attributable to the
accident in question;" and
3. The award of P100,000.00 as moral
damages was held by the appellate court as
excessive and unconscionable and hence
reduced to P50,000.00.
The
award
of P10,000.00 as
exemplary
damages and P4,500.00 as attorney's fees and
costs remained untouched.

This decision of the Intermediate Appellate Court is now before us on a petition

for review.
Both the trial court and the appellate court had made fairly explicit findings of
fact relating to the manner in which the dump truck was parked along General
Lacuna Street on the basis of which both courts drew the inference that there
was negligence on the part of Carbonel, the dump truck driver, and that this
negligence was the proximate cause of the accident and Dionisio's injuries. We
note, however, that both courts failed to pass upon the defense raised by
Carbonel and Phoenix that the true legal and proximate cause of the accident
was not the way in which the dump truck had been parked but rather the
reckless way in which Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court in its questioned decision
casually conceded that Dionisio was "in some way, negligent" but apparently
failed to see the relevance of Dionisio's negligence and made no further mention
of it. We have examined the record both before the trial court and the
Intermediate Appellate Court and we find that both parties had placed into the
record sufficient evidence on the basis of which the trial court and the appellate
court could have and should have made findings of fact relating to the alleged
reckless manner in which Dionisio drove his car that night. The petitioners
Phoenix and Carbonel contend that if there was negligence in the manner in
which the dump truck was parked, that negligence was merely a "passive and
static condition" and that private respondent Dionisio's recklessness constituted
an intervening, efficient cause determinative of the accident and the injuries he
sustained. The need to administer substantial justice as between the parties in
this case, without having to remand it back to the trial court after eleven years,
compels us to address directly the contention put forward by the petitioners and
to examine for ourselves the record pertaining to Dionisio's alleged negligence
which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not
private respondent Dionisio had a curfew pass valid and effective for that
eventful night; (b) whether Dionisio was driving fast or speeding just before the
collision with the dump truck; (c) whether Dionisio had purposely turned off his
car's headlights before contact with the dump truck or whether those headlights
accidentally malfunctioned moments before the collision; and (d) whether
Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass
was found on the person of Dionisio immediately after the accident nor was any
found in his car. Phoenix's evidence here consisted of the testimony of
Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical
Center for emergency treatment immediately after the accident. At the Makati
Medical Center, a nurse took off Dionisio's clothes and examined them along
with the contents of pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any curfew pass during the trial.
Instead, he offered the explanation that his family may have misplaced his

curfew pass. He also offered a certification (dated two years after the accident)
issued by one Major Benjamin N. Libarnes of the Zone Integrated Police
Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to
have authority to issue curfew passes for Pampanga and Metro Manila. This
certification was to the effect that private respondent Dionisio had a valid curfew
pass. This certification did not, however, specify any pass serial number or date
or period of effectivity of the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession of a valid curfew pass
during the night of the accident and that the preponderance of evidence shows
that he did not have such a pass during that night. The relevance of possession
or non-possession of a curfew pass that night lies in the light it tends to shed on
the other related issues: whether Dionisio was speeding home and whether he
had indeed purposely put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in the nearby police station for
travelling after the onset of curfew without a valid curfew pass.
On the second issue whether or not Dionisio was speeding home that night
both the trial court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno
who was at the scene of the accident almost immediately after it occurred, the
police station where he was based being barely 200 meters away. Patrolman
Cuyno testified that people who had gathered at the scene of the accident told
him that Dionisio's car was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate
speed at 30 kilometers per hour and had just crossed the intersection of General
Santos and General Lacuna Streets and had started to accelerate when his
headlights failed just before the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was
hearsay and did not fag within any of the recognized exceptions to the hearsay
rule since the facts he testified to were not acquired by him through official
information and had not been given by the informants pursuant to any duty to do
so. Private respondent's objection fails to take account of the fact that the
testimony of Patrolman Cuyno is admissible not under the official records
exception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial
evidence under this exception to the hearsay rule consists of excited utterances
made on the occasion of an occurrence or event sufficiently startling in nature so
as to render inoperative the normal reflective thought processes of the observer
and hence made as a spontaneous reaction to the occurrence or event, and not
the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing
into a stationary object in the dead of night is a sufficiently startling event as to
evoke spontaneous, rather than reflective, reactions from observers who
happened to be around at that time. The testimony of Patrolman Cuyno was
therefore admissible as part of theres gestae and should have been considered

by the trial court. Clearly, substantial weight should have been ascribed to such
testimony, even though it did not, as it could not, have purported to describe
quantitatively the precise velocity at winch Dionisio was travelling just before
impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or
whether his headlights accidentally malfunctioned, just moments before the
accident. The Intermediate Appellate Court expressly found that the headlights
of Dionisio's car went off as he crossed the intersection but was non-committal
as to why they did so. It is the petitioners' contention that Dionisio purposely shut
off his headlights even before he reached the intersection so as not to be
detected by the police in the police precinct which he (being a resident in the
area) knew was not far away from the intersection. We believe that the
petitioners' theory is a more credible explanation than that offered by private
respondent Dionisio i.e., that he had his headlights on but that, at the crucial
moment, these had in some mysterious if convenient way malfunctioned and
gone off, although he succeeded in switching his lights on again at "bright" split
seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of
the accident. The evidence here consisted of the testimony of Patrolman Cuyno
to the effect that private respondent Dionisio smelled of liquor at the time he was
taken from his smashed car and brought to the Makati Medical Center in an
unconscious condition. 7 This testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or two" of liquor before dinner
with his boss that night. We do not believe that this evidence is sufficient to show
that Dionisio was so heavily under the influence of liquor as to constitute his
driving a motor vehicle per se an act of reckless imprudence. 8 There simply is
not enough evidence to show how much liquor he had in fact taken and the
effects of that upon his physical faculties or upon his judgment or mental
alertness. We are also aware that "one shot or two" of hard liquor may affect
different people differently.
The conclusion we draw from the factual circumstances outlined above is that
private respondent Dionisio was negligent the night of the accident. He was
hurrying home that night and driving faster than he should have been. Worse, he
extinguished his headlights at or near the intersection of General Lacuna and
General Santos Streets and thus did not see the dump truck that was parked
askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate
Appellate Court that the legal and proximate cause of the accident and of
Dionisio's injuries was the wrongful or negligent manner in which the dump
truck was parked in other words, the negligence of petitioner Carbonel. That
there was a reasonable relationship between petitioner Carbonel's negligence
on the one hand and the accident and respondent's injuries on the other hand, is
quite clear. Put in a slightly different manner, the collision of Dionisio's car with

the dump truck was a natural and foreseeable consequence of the truck driver's
negligence.
The petitioners, however, urge that the truck driver's negligence was merely a
"passive and static condition" and that private respondent Dionisio's negligence
was an "efficient intervening cause and that consequently Dionisio's negligence
must be regarded as the legal and proximate cause of the accident rather than
the earlier negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various jurisdictions in the
United States but we are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that even in the United
States, the distinctions between "cause" and "condition" which the 'petitioners
would have us adopt have already been "almost entirely discredited." Professors
and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish
between the active "cause" of the harm and the existing
"conditions" upon which that cause operated. If the defendant
has created only a passive static condition which made the
damage possible, the defendant is said not to be liable. But so
far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in
producing the result it is quite impossible to distinguish between
active forces and passive situations, particularly since, as is
invariably the case, the latter are the result of other active
forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act
may be culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much to
bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape
responsibility.Even the lapse of a considerable time during
which the "condition" remains static will not necessarily affect
liability; one who digs a trench in the highway may still be liable
to another who fans into it a month afterward. "Cause" and
"condition" still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it has
any validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to rest in a
position of apparent safety, and some new force intervenes. But
even in such cases, it is not the distinction between "cause" and
"condition" which is important but the nature of the risk and the
character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive
and static condition" was rather an indispensable and efficient cause. The
collision between the dump truck and the private respondent's car would in an

probability not have occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck driver must
be held responsible. In our view, Dionisio's negligence, although later in point of
time than the truck driver's 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 consequent manner
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.
Dionisio's negligence was not 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. It is
helpful to quote once more from Professor and Keeton:

road or a railroad track should foresee that a vehicle or a train

will run into it; ...

Foreseeable Intervening Causes. If the intervening cause is one

which in ordinary human experience is reasonably to be
anticipated or one which the defendant has reason to anticipate
under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard
against it; or the defendant may be negligent only for that
reason. Thus one who sets a fire may be required to foresee
that an ordinary, usual and customary wind arising later wig
spread it beyond the defendant's own property, and therefore to
take precautions to prevent that event. The person who leaves
the combustible or explosive material exposed in a public place
may foresee the risk of fire from some independent source. ... In
all of these cases there is an intervening cause combining with
the defendant's conduct to produce the result and in each case
the defendant's negligence consists in failure to protect the
plaintiff against that very risk.

We hold that private respondent Dionisio's negligence was "only contributory,"

that the "immediate and proximate cause" of the injury remained the truck
driver's "lack of due care" and that consequently respondent Dionisio may
recover damages though such damages are subject to mitigation by the courts
(Article 2179, Civil Code of the Philippines).

Obviously the defendant cannot be relieved from liability by the

fact that the risk or a substantial and important part of the risk,
to which the defendant has subjected the plaintiff has indeed
come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's
negligence. The courts are quite generally agreed that
intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all ordinary
forces of nature such as usual wind or rain, or snow or frost or
fog or even lightning; that one who leaves an obstruction on the

The risk created by the defendant may include the intervention

of the foreseeable negligence of others. ... [The standard of
reasonable conduct may require the defendant to protect the
plaintiff against 'that occasional negligence which is one of the
ordinary incidents of human life, and therefore to be
anticipated.' Thus, a defendant who blocks the sidewalk and
forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently
driven; and one who parks an automobile on the highway
without lights at night is not relieved of responsibility when
another negligently drives into it. --- 10

Petitioners also ask us to apply what they refer to as the "last clear chance"
doctrine. The theory here of petitioners is that while the petitioner truck driver
was negligent, private respondent Dionisio had the "last clear chance" of
avoiding the accident and hence his injuries, and that Dionisio having failed to
take that "last clear chance" must bear his own injuries alone. The last clear
chance doctrine of the common law was imported into our jurisdiction by Picart
vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found
its way into the Civil Code of the Philippines. The historical function of that
doctrine in the common law was to mitigate the harshness of another common
law doctrine or rule that of contributory negligence. 12 The common law rule of
contributory negligence prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively minor as compared with
the wrongful act or omission of the defendant. 13 The common law notion of last
clear chance permitted courts to grant recovery to a plaintiff who had also been
negligent provided that the defendant had the last clear chance to avoid the
casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any,
the common law 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 of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted
from its common law matrix and utilized as a general rule in negligence cases in
a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the
task of a court, in technical terms, is to determine whose negligence the

plaintiff's or the defendant's was the legal or proximate cause of the injury.
That task is not simply or even primarily an exercise in chronology or physics, as
the petitioners seem to imply by the use of terms like "last" or "intervening" or
"immediate." The relative location in the continuum of time of the plaintiff's and
the defendant's negligent acts or omissions, is only one of the relevant factors
that may be taken into account. Of more fundamental importance are the nature
of the negligent act or omission of each party and the character and gravity of
the risks created by such act or omission for the rest of the community. The
petitioners urge that the truck driver (and therefore his employer) should be
absolved from responsibility for his own prior negligence because the
unfortunate plaintiff failed to act with that increased diligence which had become
necessary to avoid the peril precisely created by the truck driver's own wrongful
act or omission. To accept this proposition is to come too close to wiping out the
fundamental principle of law that a man must respond for the forseeable
consequences of his own negligent act or omission. Our law on quasi-delicts
seeks to reduce the risks and burdens of living in society and to allocate them
among the members of society. To accept the petitioners' pro-position must tend
to weaken the very bonds of society.

income and moral damages private respondent Dionisio is entitled to by 20% of

such amount. Costs against the petitioners.
SO ORDERED.

Petitioner Carbonel's proven negligence creates a presumption of negligence on

the part of his employer Phoenix16 in supervising its employees properly and
adequately. The respondent appellate court in effect found, correctly in our
opinion, that Phoenix was not able to overcome this presumption of negligence.
The circumstance that Phoenix had allowed its truck driver to bring the dump
truck to his home whenever there was work to be done early the following
morning, when coupled with the failure to show any effort on the part of Phoenix
to supervise the manner in which the dump truck is parked when away from
company premises, is an affirmative showing of culpa in vigilando on the part of
Phoenix.
Turning to the award of damages and taking into account the comparative
negligence of private respondent Dionisio on one hand and petitioners Carbonel
and Phoenix upon the other hand, 17 we believe that the demands of substantial
justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus,
20% of the damages awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees
and costs, shall be borne by private respondent Dionisio; only the balance of
80% needs to be paid by petitioners Carbonel and Phoenix who shall be
solidarity liable therefor to the former. The award of exemplary damages and
attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix
is of course entitled to reimbursement from Carbonel. 18 We see no sufficient
reason for disturbing the reduced award of damages made by the respondent
appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by
reducing the aggregate amount of compensatory damages, loss of expected

G.R. No. 92087

May 8, 1992

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor
children, namely: ALBERTO & ROBERTO, all surnamed FERNANDO,
ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA BERTULANO, in her behalf
and as the legal guardian of her minor children, namely: EDUARDO,
ROLANDO, DANIEL, AND JOCELYN, all surnamed BERTULANO,
PRIMITIVA FAJARDO in her behalf and as legal guardian of her minor
children, namely: GILBERT, GLEN, JOCELYN AND JOSELITO, all surnamed

FAJARDO, and EMETERIA LIAGOSO, in her behalf and as guardian ad

litem, of her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE
and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF
DAVAO, respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari praying that the amended decision of
the Court of Appeals dated January 11, 1990 in CA-G.R. No. C.V. 04846,
entitled "Sofia Fernando, etc., et al. v. The City of Davao," be reversed and that
its original decision dated January 31, 1986 be reinstated subject to the
modification sought by the petitioners in their motion for partial reconsideration
dated March 6, 1986.
The antecedent facts are briefly narrated by the trial court, as follows:
From the evidence presented we see the following facts: On
November 7, 1975, Bibiano Morta, market master of the Agdao
Public Market filed a requisition request with the Chief of
Property of the City Treasurer's Office for the re-emptying of the
septic tank in Agdao. An invitation to bid was issued to Aurelio
Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and
Antonio Suer, Jr. Bascon won the bid. On November 26, 1975
Bascon was notified and he signed the purchase order.
However, before such date, specifically on November 22, 1975,
bidder Bertulano with four other companions namely Joselito
Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr.
were found dead inside the septic tank. The bodies were
removed by a fireman. One body, that of Joselito Garcia, was
taken out by his uncle, Danilo Garcia and taken to the Regional
Hospital but he expired there. The City Engineer's office
investigated the case and learned that the five victims entered
the septic tank without clearance from it nor with the knowledge
and consent of the market master. In fact, the septic tank was
found to be almost empty and the victims were presumed to be
the ones who did the re-emptying. Dr. Juan Abear of the City
Health Office autopsied the bodies and in his reports, put the
cause of death of all five victims as "asphyxia" caused by the
diminution of oxygen supply in the body working below normal
conditions. The lungs of the five victims burst, swelled in
hemmorrhagic areas and this was due to their intake of toxic
gas, which, in this case, was sulfide gas produced from the
waste matter inside the septic tank. (p. 177, Records)

On August 28, 1984, the trial court rendered a decision, the dispositive portion of
which reads:
IN VIEW OF THE FOREGOING, this case is hereby
DISMISSED without pronouncement as to costs.
SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to the then Intermediate
Appellate Court (now Court of Appeals). On January 3, 1986, the appellate court
issued a decision, the dispositive portion of which reads:
WHEREFORE, in view of the facts fully established and in the
liberal interpretation of what the Constitution and the law
intended to protect the plight of the poor and the needy, the
ignorant
and
the
indigent more entitled to social justice for having, in the
unforgettable words of Magsaysay, "less in life," We hereby
reverse and set aside the appealed judgment and render
another one:
1. Ordering the defendant to pay to the plaintiffs Dionisio
Fernando, Sofia Fernando and her minor children the following
sums of money:
a) Compensatory damages for his death
P30,000.00
b) Moral damages P20,000.00
2. Ordering the defendant to pay to the plaintiffs David Garcia
and Anita Garcia the following sums of money:
a) Compensatory damages for his death
P30,000.00
b) Moral damages P20,000.00
3. Ordering the defendant to pay to the plaintiff Rosalia
Bertulano (sic) and her minor children the following sums of
money
a) Compensatory damages for his death
P30,000.00

b) Moral damages P20,000.00

4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo
and her minor children the following sums of money:
a) Compensatory damages for his death
P30,000.00
b) Moral damages P20,000.00
5. Ordering the defendant to pay to the plaintiffs Norma Liagoso,
Nicolas Liagoso and Emeteria Liagoso and her minor
grandchildren the following sums of money:
a) Compensatory damages for his death
P30,000.00
b) Moral damages P20,000.00
The death compensation is fixed at P30,000.00 in accordance
with the rulings of the Supreme Court starting with People
vs. De la Fuente, Nos. L-63251-52, December 29, 1983, 126
SCRA 518 reiterated in the recent case of People
vs. Nepomuceno, No. L-41412, May 27, 1985. Attorney's fees in
the amount of P10,000.00 for the handling of the case for the 5
victims is also awarded.
No pronouncement as to costs.
SO ORDERED. (Rollo, pp. 33-34)
Both parties filed their separate motions for reconsideration. On January 11,
1990, the Court of Appeals rendered an Amended Decision, the dispositive
portion of which reads:
WHEREFORE, finding merit in the motion for reconsideration of
the defendant-appellee Davao City, the same is hereby
GRANTED. The decision of this Court dated January 31, 1986
is reversed and set aside and another one is hereby rendered
dismissing the case. No pronouncement as to costs.
SO ORDERED. (Rollo, p. 25)
Hence, this petition raising the following issues for resolution:

1. Is the respondent Davao City guilty of negligence in the case

at bar?
2. If so, is such negligence the immediate and proximate cause
of deaths of the victims hereof? (p. 72, Rollo)
Negligence has been defined as 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
(Corliss v. Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA 674,
680). Under the law, a person who by his omission causes damage to another,
there being negligence, is obliged to pay for the damage done (Article 2176,
New Civil Code). As to what would constitute a negligent act in a given situation,
the case ofPicart v. Smith (37 Phil. 809, 813) provides Us the answer, to wit:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: 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 pater familias 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.
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 speculation 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. 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 the ignoring of the suggestion born of this
provision, is always necessary before negligence can be held to
exist. Stated in these terms, the proper criterion for determining
the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another

was sufficiently probable warrant his foregoing the conduct or

guarding against its consequences. (emphasis supplied)
To be entitled to damages for an injury resulting from the negligence of another,
a claimant must establish the relation between the omission and the damage.
He must prove under Article 2179 of the New Civil Code that the defendant's
negligence was the immediate and proximate cause of his injury. 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 (Vda. de Bataclan, et al. v.
Medina, 102 Phil. 181, 186). Proof of such relation of cause and effect is not an
arduous one if the claimant did not in any way contribute to the negligence of the
defendant. However, where the resulting injury was the product of the
negligence of both parties, there exists a difficulty to discern which acts shall be
considered the proximate cause of the accident. In Taylor v. Manila Electric
Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a
judicious assessment of the situation:
Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the
accident. The test is simple. Distinction must be made between
the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the
victim not entering into it, independent of it, but contributing to
his own proper hurt. For instance, the cause of the accident
under review was the displacement of the crosspiece or the
failure to replace it. This produced the event giving occasion for
damages that is, the sinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the
side of the car did not contribute, although it was an element of
the damage which came to himself. Had the crosspiece been
out of place wholly or partly through his act or omission of duty,
that would have been one of the determining causes of the
event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he
may recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence. (emphasis Ours)
Applying all these established doctrines in the case at bar and after a careful
scrutiny of the records, We find no compelling reason to grant the petition. We
affirm.
Petitioners fault the city government of Davao for failing to clean a septic tank for
the period of 19 years resulting in an accumulation of hydrogen sulfide gas

which killed the laborers. They contend that such failure was compounded by
the fact that there was no warning sign of the existing danger and no efforts
exerted by the public respondent to neutralize or render harmless the effects of
the toxic gas. They submit that the public respondent's gross negligence was the
proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true that the public respondent
has been remiss in its duty to re-empty the septic tank annually, such negligence
was not a continuing one. Upon learning from the report of the market master
about the need to clean the septic tank of the public toilet in Agdao Public
Market, the public respondent immediately responded by issuing invitations to
bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr.
Feliciano Bascon (TSN, May 24, 1983, pp. 22-25). The public respondent,
therefore, lost no time in taking up remedial measures to meet the situation. It is
likewise an undisputed fact that despite the public respondent's failure to reempty the septic tank since 1956, people in the market have been using the
public toilet for their personal necessities but have remained unscathed. The
testimonies of Messrs. Danilo Garcia and David Secoja (plaintiffs'-petitioners'
witnesses) on this point are relevant, to wit:
Atty. Mojica, counsel for defendant Davao City:
xxx xxx xxx
The place where you live is right along the
Agdao creek, is that correct?
DANILO GARCIA:
A Yes, sir.
Q And to be able to go to the market place,
where you claim you have a stall,, you have to
pass on the septic tank?
A Yes, sir.
Q Day in and day out, you pass on top of the
septic tank?
A Yes, sir.
Q Is it not a fact that everybody living along the
creek passes on top of this septic tank as they

go out from the place and return to their place

of residence, is that correct?
And this septic tank, rather the whole of the
septic tank, is covered by lead . . .?

A Yes, sir.
Q How far is that septic tank located from your
house?
A Around thirty (30) meters.

A Yes, sir. there is cover.

Q And there were three (3) of these lead
covering the septic tank?

Q Have you ever had a chance to use that

septic tank (public toilet)?
A Yes, sir.

A Yes, sir.
Q How many times, if you could remember?
Q And this has always been closed?
A Many times, maybe more than 1,000 times.
A Yes, sir. (TSN, November 26, 1979, pp. 2123, emphasis supplied)

Q Prior to November 22, 1975, have you ever

used that septic tank (public toilet)?

ATTY. JOVER, counsel for the plaintiffs:

A Yes, sir.
Q You said you are residing at Davao City, is it
not?
DAVID SEJOYA:
A Yes, sir.
Q How long have you been a resident of
Agdao?
A Since 1953.
Q Where specifically in Agdao are you residing?
A At the Public Market.
Q Which part of the Agdao Public Market is
your house located?
A Inside the market in front of the fish section.
Q Do you know where the Agdao septic tank is
located?

Q How many times have you gone to that septic

tank (public toilet) prior to that date, November
22, 1975?
A Almost 1,000 times. (TSN, February 9, 1983,
pp. 1-2)
The absence of any accident was due to the public respondent's
compliance with the sanitary and plumbing specifications in constructing
the toilet and the septic tank (TSN, November 4, 1983, p. 51). Hence,
the toxic gas from the waste matter could not have leaked out because
the septic tank was air-tight (TSN, ibid, p. 49). The only indication that
the septic tank in the case at bar was full and needed emptying was
when water came out from it (TSN, September 13, 1983, p. 41). Yet,
even when the septic tank was full, there was no report of any casualty
of gas poisoning despite the presence of people living near it or passing
on top of it or using the public toilet for their personal necessities.
Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to
emphasize the negligence of the city government and presented witnesses to
attest on this lack. However, this strategy backfired on their faces. Their
witnesses were not expert witnesses. On the other hand, Engineer Demetrio
Alindada of the city government testified and demonstrated by drawings how the
safety requirements like emission of gases in the construction of both toilet and

septic tank have been complied with. He stated that the ventilation pipe need not
be constructed outside the building as it could also be embodied in the hollow
blocks as is usually done in residential buildings (TSN, November 4, 1983, pp.
50-51). The petitioners submitted no competent evidence to corroborate their
oral testimonies or rebut the testimony given by Engr. Alindada.

Q Therefore, under the National Building Code,

you are empowered not to approve sanitary
plans if they are not in conformity with the
sanitary requirements?
A Yes.

We also do not agree with the petitioner's submission that warning signs of
noxious gas should have been put up in the toilet in addition to the signs of
"MEN" and "WOMEN" already in place in that area. Toilets and septic tanks are
not nuisances per se as defined in Article 694 of the New Civil Code which
would necessitate warning signs for the protection of the public. While the
construction of these public facilities demands utmost compliance with safety
and sanitary requirements, the putting up of warning signs is not one of those
requirements. The testimony of Engr. Alindada on this matter is elucidative:
ATTY. ALBAY:
Q Mr. Witness, you mentioned the several
aspects of the approval of the building permit
which include the plans of an architect, senitary
engineer and electrical plans. All of these still
pass your approval as building official, is that
correct?

Q Now, in private or public buildings, do you

see any warning signs in the vicinity of septic
tanks?
A There is no warning sign.
Q In residential buildings do you see any
warning sign?
A There is none.
ATTY. AMPIG:
We submit that the matter is irrelevant and
immaterial, Your Honor.

DEMETRIO ALINDADA:

ATTY. ALBAY:

A Yes.

But that is in consonance with their crossexamination, your Honor.

Q So there is the sanitary plan submitted to and

will not be approved by you unless the same is
in conformance with the provisions of the
building code or sanitary requirements?

COURT:
Anyway it is already answered.

A Yes, for private building constructions.

ATTY. ALBAY:

Q How about public buildings?

Q These warning signs, are these required

under the preparation of the plans?

A For public buildings, they are exempted for

payment of building permits but still they have
to have a building permit.

A It is not required.

Q But just the same, including the sanitary

plans, it require your approval?

Q I will just reiterate, Mr. Witness. In

residences, for example like the residence of
Atty. Ampig or the residence of the honorable
Judge, would you say that the same principle of

A Yes, it requires also.

the septic tank, from the water closet to the

vault, is being followed?
A Yes.
ATTY. ALBAY:
That will be all, Your Honor. (TSN, December 6,
1983, pp. 62-63)
In view of this factual milieu, it would appear that an accident such as toxic gas
leakage from the septic tank is unlikely to happen unless one removes its
covers. The accident in the case at bar occurred because the victims on their
own and without authority from the public respondent opened the septic tank.
Considering the nature of the task of emptying a septic tank especially one
which has not been cleaned for years, an ordinarily prudent person should
undoubtedly be aware of the attendant risks. The victims are no exception; more
so with Mr. Bertulano, an old hand in this kind of service, who is presumed to
know the hazards of the job. His failure, therefore, and that of his men to take
precautionary measures for their safety was the proximate cause of the
accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil.
129, 133), We held that when a person holds himself out as being competent to
do things requiring professional skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the particular work
which he attempts to do (emphasis Ours). The fatal accident in this case would
not have happened but for the victims' negligence. Thus, the appellate court was
correct to observe that:
. . . Could the victims have died if they did not open the septic
tank which they were not in the first place authorized to open?
Who between the passive object (septic tank) and the active
subject (the victims herein) who, having no authority therefore,
arrogated unto themselves, the task of opening the septic tank
which caused their own deaths should be responsible for such
deaths. How could the septic tank which has been in existence
since the 1950's be the proximate cause of an accident that
occurred only on November 22, 1975? The stubborn fact
remains that since 1956 up to occurrence of the accident in
1975 no injury nor death was caused by the septic tank. The
only reasonable conclusion that could be drawn from the above
is that the victims' death was caused by their own negligence in
opening the septic tank. . . . (Rollo, p. 23)
Petitioners further contend that the failure of the market master to supervise the
area where the septic tank is located is a reflection of the negligence of the
public respondent.

We do not think so. The market master knew that work on the septic tank was
still forthcoming. It must be remembered that the bidding had just been
conducted. Although the winning bidder was already known, the award to him
was still to be made by the Committee on Awards. Upon the other hand, the
accident which befell the victims who are not in any way connected with the
winning bidder happened before the award could be given. Considering that the
case was yet no award to commence work on the septic tank, the duty of the
market master or his security guards to supervise the work could not have
started (TSN, September 13, 1983, p. 40). Also, the victims could not have been
seen working in the area because the septic tank was hidden by a garbage
storage which is more or less ten (10) meters away from the comfort room itself
(TSN, ibid, pp. 38-39). The surreptitious way in which the victims did their job
without clearance from the market master or any of the security guards goes
against their good faith. Even their relatives or family members did not know of
their plan to clean the septic tank.
Finally, petitioners' insistence on the applicability of Article 24 of the New Civil
Code cannot be sustained. Said law states:
Art. 24. In all contractual, property or other relations, when one
of the parties is at a disadvantage on account of his moral
dependence, ignorance, indigence, mental weakness, tender
age or other handicap, the courts must be vigilant for his
protection.
We approve of the appellate court's ruling that "(w)hile one of the victims
was invited to bid for said project, he did not win the bid, therefore, there
is a total absence of contractual relations between the victims and the
City Government of Davao City that could give rise to any contractual
obligation, much less, any liability on the part of Davao City." (Rollo, p.
24) The accident was indeed tragic and We empathize with the
petitioners. However, the herein circumstances lead Us to no other
conclusion than that the proximate and immediate cause of the death of
the victims was due to their own negligence. Consequently, the
petitioners cannot demand damages from the public respondent.
ACCORDINGLY, the amended decision of the Court of Appeals dated January
11, 1990 is AFFIRMED. No costs.
SO ORDERED.

G.R. No. 127326

December 23, 1999

BENGUET ELECTRIC COOPERATIVE, INC., petitioner, vs. COURT OF

APPEALS, CARIDAD O. BERNARDO as Guardian Ad Litem for Minors
JOJO, JEFFREY and JO-AN, all surnamed BERNARDO, and GUILLERMO
CANAVE, JR., respondents.
BELLOSILLO, J.:
This case involves a review on certiorari of the Decision of the Court of
Appeals[1]affirming with modification the decision of the Regional Trial Court of
Baguio City, and ordering petitioner Benguet Electric Cooperative Inc.
(BENECO) to pay Caridad O. Bernardo, as guardian ad litem of the three (3)
minor children of the late Jose Bernardo P50,000.00 as indemnity for his death,

with interest thereon at the legal rate from February 6, 1985, the date of the filing
of the complaint, until fully paid, P100,000.00 for moral damages, P20,000.00 for
exemplary damages, another P20,000.00 for attorney's fees,P864,000.00 for net
income loss for the remaining thirty (30) years of the life expectancy of the
deceased, and to pay the costs of suit.
The appellate court dismissed for lack of merit the counterclaim of BENECO
against the Bernardos and its third party complaint against Guillermo Canave,
Jr., as well as the latter's counterclaim.
For five (5) years up to the time of his death, Jose Bernardo managed a stall at
the Baguio City meat market. On 14 January 1985 at around 7:50 in the
morning, Jose together with other meat vendors went out of their stalls to meet a
jeepney loaded with slaughtered pigs in order to select the meat they would sell
for the day. Jose was the very first to reach the parked jeepney. Grasping the
handlebars at the rear entrance of the vehicle, and as he was about to raise his
right foot to get inside, Jose suddenly stiffened and trembled as though suffering
from an epileptic seizure. Romeo Pimienta who saw Jose thought he was
merely joking but noticed almost in disbelief that he was already turning black. In
no time the other vendors rushed to Jose and they discovered that the antenna
of the jeepney bearing the pigs had gotten entangled with an open electric wire
at the top of the roof of a meat stall. Pimienta quickly got hold of a broom and
pried the antenna loose from the open wire. But shortly after, Jose released his
hold on the handlebars of the jeep only to slump to the ground. He died shortly
in the hospital. Cause of his death was "cardio-respiratory arrest secondary to
massive brain congestion with petheccial hemorrhage, brain bilateral pulmonary
edema and congestion and endocardial petecchial hemorrhage and dilation
(history of electrocution)."
On 6 February 1985 Caridad O. Bernardo, widow of Jose Bernardo, and their
minor children, Jojo, Jeffrey and Jo-an, all surnamed Bernardo, filed a complaint
against BENECO before the Regional Trial Court of Baguio City for a sum of
money and damages arising from the electrocution of Jose Bernardo. In the
same civil action, BENECO filed a third-party complaint against Guillermo
Canave, Jr., the jeepney owner.
In its decision dated 15 August 1994, the trial court ruled in favor of the
Bernardos and ordered BENECO to pay them damages. [2] Both petitioner and
private respondents herein appealed to the Court of Appeals. On 5 November
1996 the appellate court promulgated its Decision which BENECO now assails
contending inter alia that the appellate court gravely erred in ordering BENECO
to pay damages in light of the clear evidence that it was third-party defendant
Canave's fault or negligence which was the proximate and sole cause, or at
least the principal cause, of the electrocution and death of Jose Bernardo.
First, BENECO questions the award of damages by respondent court
notwithstanding a clear showing that the electrocution and death of Jose
Bernardo were directly attributable to the fault and negligence of jeepney owner
Guillermo Canave, Jr.

The records of the case show that respondent court did not commit any
reversible error in affirming the findings of the trial court that BENECO was
solely responsible for the untimely death of Jose Bernardo through accidental
electrocution. According to the trial court, which we find substantiated by the
records -[3]
Through Virgilio Cerezo, a registered master electrician and presently the Chief
Electrical Building Inspector of the General Services Division of the City of
Baguio, who was tasked to investigate the electrocution of Bernardo, the
plaintiffs adduced proof tending to show that the defendant BENECO installed a
No. 2 high voltage main wire distribution line and a No. 6 service line to provide
power at the temporary meat market on Hilltop Road. It put up a three-inch G.I.
pipe pole to which the No. 2 main line was strung on top of a stall where a
service drop line was connected. The height of the electrical connection from the
No. 2 line to the service line was barely eight (8) to nine (9) feet (Exhibit "E"; See
Exhibit "D-1") which is in violation of the Philippine Electrical Code which
requires a minimum vertical clearance of fourteen (14) feet from the level of the
ground since the wiring crosses a public street. Another violation according to
Cerezo, is that the main line connected to the service line was not of rigid
conduit wiring but totally exposed without any safety protection (Ibid). Worse, the
open wire connections were not insulated (Ibid); See Exhibits "D-6", "D-6-A", "D7"). The jeep's antenna which was more than eight (8) feet high (Exhibit "D-9")
from the ground ( It is about six to seven feet long and mounted on the left
fender which is about three feet above the ground) got entangled with the open
wire connections (Exhibit "D-8"), thereby electrically charging its handlebars
which Bernardo held on to enter the vehicle resulting in his electrocution.
While Vedasto Augusto, an electrical engineer and the line superintendent in the
electrical department of the defendant BENECO, admitted that the allowable
vertical clearance of the service drop line is even 15 feet from the ground level
and not only 14 feet, he and Jose Angeles, then an instrument man or surveyor
of the BENECO, insisted that BENECO installed (they do not know by whom in
particular) from the Apollo Building nearby a service drop line carrying 220 volts
which was attached to a G.I. pipe pole (Exhibits "1" and "1-A"). The vertical
clearance of the point of attachment of the service drop line on the G.I. post to
the ground is 15.5 feet (Exhibit "1-B"), which is more than the allowable 15-foot
clearance. To this service drop line was connected the service entrance
conductor (Exhibit "1-D") to supply power inside the premises to be serviced
through an electric meter. At the lower portion of the splicing or connecting point
between the service drop line and the service entrance conductor is a three to
four-inch bare wire to serve as a ground. They saw the bare wire because the
splicing point was exposed as it was not covered with tape (Exhibit "1-E"). The
antenna of the jeep which electrocuted Bernardo got entangled with this
exposed splicing point.

Augusto claimed that it was not BENECO's job to splice or connect the service
entrance conductor to the service drop line but rather the owner of the premises
to be serviced whose identity they did not, however, determine.
Significantly, on cross-examination, Augusto admitted that the service drop line
that BENECO installed did not end at the point to which it is attached to the G.I.
post. Rather, it passed through a spool insulator that is attached to the post
(Exhibit "1-F") and extended down to where the service entrance conductor is
spliced with the result that the exposed splicing point (Exhibit "1-E") is only
about eight (8) feet from the ground level.
There is no question that as an electric cooperative holding the exclusive
franchise in supplying electric power to the towns of Benguet province, its
primordial concern is not only to distribute electricity to its subscribers but also to
ensure the safety of the public by the proper maintenance and upkeep of its
facilities. It is clear to us then that BENECO was grossly negligent in leaving
unprotected and uninsulated the splicing point between the service drop line and
the service entrance conductor, which connection was only eight (8) feet from
the ground level, in violation of the Philippine Electrical Code.BENECO's
contention that the accident happened only on January 14, 1985, around seven
(7) years after the open wire was found existing in 1978, far from mitigating its
culpability, betrays its gross neglect in performing its duty to the public. [4] By
leaving an open live wire unattended for years, BENECO demonstrated its utter
disregard for the safety of the public. Indeed, Jose Bernardo's death was an
accident that was bound to happen in view of the gross negligence of BENECO.
BENECO theorizes in its defense that the death of Jose Bernardo could be
attributed to the negligence of Canave, Jr., in parking his jeepney so close to the
market stall which was neither a parking area nor a loading area, with his
antenna so high as to get entangled with an open wire above the Dimasupil
store.[5] But this line of defense must be discarded. Canave's act of parking in an
area not customarily used for that purpose was by no means the independent
negligent act adverted to by BENECO in citing Manila Electric Co. v. Ronquillo.
[6]
Canave was well within his right to park the vehicle in the said area where
there was no showing that any municipal law or ordinance was violated nor that
there was any foreseeable danger posed by his act. One thing however is sure,
no accident would have happened had BENECO installed the connections in
accordance with the prescribed vertical clearance of fifteen (15) feet.
Second. BENECO avers that the Court of Appeals gravely erred in
awarding P864,000.00 as net income loss for the thirty (30) years remaining of
the life expectancy of the deceased Jose Bernardo, albeit the trial court found no
firm basis for awarding this item of damages.
We recall that the trial court disallowed the award for net loss income in view of
the alleged contradictory and untrustworthy testimony of the deceased's
surviving spouse Caridad Bernardo. Thus -

As to lost earnings. The court finds the allegations of the plaintiffs, particularly
Caridad Bernardo contradictory and untrustworthy. While in the complaint, which
she herself verified, she asseverated that at the time of his death on January 14,
1985, her late husband was earning no less than P150.00 daily after deducting
personal expenses and household and other family obligations; at the trial she
bloated this up to P3,000.00 gross daily or P300.00 profit a day or a net income
of P200.00 daily after deducting personal and household expenses. But
inexplicably she could not present the income tax return of her husband for 1983
and 1984 although she stated that he had been filing such returns. What she
submitted are his income tax returns for 1981 and 1982 showing a much lower
annual gross income of P12,960.00 andP16,120.00, respectively. The Court,
therefore, finds no firm basis for awarding this item of damages.
In modifying the decision of the trial court, the Court of Appeals relied on the
testimony of Rosita Noefe, sister of the deceased, that her brother started as her
helper in the several meat stalls she operated until 1982 when she allowed Jose
to operate one of her stalls as his own and gave him an initial capital
of P15,000.00 to add to his own. She explained that her brother sold from 100 to
150 kilos of pork and 30 to 50 kilos of meat a day earning an income of
about P150.00 to P200.00 pesos daily. After deducting his personal expenses
and family obligations, Jose earned a daily net income between P70.00
andP80.00. Jose Bernardo died of electrocution at the age of thirty-three (33).
Following the ruling in Villa Rey Transit v. Court of Appeals[7] and Davila v.
PAL[8]his life expectancy would allow him thirty and one third (30-1/3) years
more. Assuming on the basis of his P80.00 daily net income translated
to P2,400.00 monthly or P28,800.00 yearly, the net income loss for the thirty
(30) years remaining of his life expectancy would amount to P864,000.00.[9]
While we are of the opinion that private respondent Bernardo is entitled to
indemnity for loss of earning capacity of her deceased husband we however find
that a modification is in order. The amount corresponding to the loss of earning
capacity is based mainly on two factors: (a) the number of years on the basis of
which the damages shall be computed; and, (b) the rate at which the losses
sustained by the widow and her children should be fixed. [10]
We consider that the deceased was married with three (3) children and thirtythree (33) years old at the time of his death. By applying the formula: 2/3 x (80 33) = Life Expectancy, the normal life expectancy of the deceased would be
thirty-one and one-third (31-1/3) years and not thirty (30) as found by the
respondent court. By taking into account the nature and quality of life of a meat
vendor, it is hard to conceive that Jose would still be working for the full stretch
of the remaining thirty-one (31) years of his life; and therefore it is but
reasonable to make allowances and reduce his life expectancy to twenty-five
(25) years.[11]
Anent the second factor, we are of the view that the Court of Appeals was
correct in relying on the unrebutted testimony of Rosita Noefe concerning the
income of Jose, thus providing a basis for fixing the rate of damages incurred by
the heirs of the deceased. Rosita clarified as follows:

Q: Now you said that you brother's stall is just very near, about 4 to 5 meters
away from your stall. Do you know more or less how your brother was
earning by way of income because the stall belongs also to you and
your husband?

there is no reason to doubt the veracity of Rosita's testimony considering that

she owned the very same stall that Jose was operating and managing before his
death. Her testimony on the earning capacity of Jose is enough to establish the
rationale for the award.

A: Yes, sir (italics supplied).

The discrepancy between private respondent Bernardo's claims regarding her

husband's income as contained in the complaint, where she alleged that Jose
was earning no less than P150.00 a day, and her testimony during trial that he
earned P300.00 daily, could not obviate the fact that at the time of his death
Jose was earning a living as a meat vendor. Undoubtedly, his untimely death
deprived his family of his potential earnings. The allegation in the complaint
fixing his income at P150.00 a day was corroborated by the unqualified
declaration of Rosita Noefe that he was earning P150.00 to P200.00 a
day.Obviously the bloated figure of P300.00 given by private respondent
Bernardo was an afterthought perhaps impelled by the prospect of being
awarded a greater sum.

Q: How much more or less would you say was his daily income from the stall,
if you know?
A: P150 to P200 more, sometimes more than P200.
Q: What is this? Monthly, daily, or what?
A: Daily sir.
Q: Now, when you said that he earns sometimes 150 or 200 in a day can
(sic) you tell this court more or less how many in terms of net or in terms
of kilos that he can sell with that amount daily?
A: More than one hundred (100) kilos, sir, or one hundred fifty kilos (150).
Q: By the way what was your brother selling also in that meat stall?
A: Pork and beef, sir.
Q: In terms of how many slaughter(ed) pigs would that be if you know? 100
to 150 kilo
A: Two (2) pigs, sir.
Q: Is this... How about meat, I mean, aside from pigs?
A: About thirty (30) to fifty (50) kilos for beef.
Q: Now, will you tell this court why you know more or less that this is his daily
income?
A: I know it because I experienced it and I only transferred this stall to him.

We now fix Jose's daily gross income at P150.00 or his annual gross income
at P54,000.00. After deducting personal expenses, household and other family
obligations, we can safely assume that his annual net income at the time of
death was P27,000.00 or 50% of his yearly gross earnings of P54,000.00.[12]
Accordingly, in determining the indemnity for the loss of earning capacity, we
multiply the life expectancy of the deceased as reduced to twenty-five (25) years
by the annual net income of P27,000.00 which gives us P675,000.00. Therefore,
we deduce that his net earning capacity is P675,000.00 computed as follows:
[13]
Net Earning Capacity = Life Expectancy x Gross Annual Income - Necessary
Living Expenses. Reduced to simpler form:
Net Earning = Life x Gross Annual - Necessary
Capacity Expectancy Income Living Expenses
= 2 (80 - 33) x (P54,000 - P27,000)
3

Q: And his income, you said, of 150 daily to 200 for the sale of pork and meat
will you know what are his family expenses being your brother and is
living with you in the same place at the slaughter house?

= 31-1/3
(reduced to 25) x 27,000 = 675,000.00

A: About P70.00 to P80.00 a day.

=P675,000.00 NET INCOME LOSS (as reduced)

Q: And what are the other income that your brother derive (sic) aside from
the meat stall after spending these daily expenses?
A: None, sir.
Contrary to the assertion of BENECO, there is ample basis for the fixing of
damages incurred by the heirs of the deceased. Notwithstanding the failure of
private respondent Bernardo to present documentary evidence to support her
claim, the unrebutted testimony of Rosita Noefe supplied this deficiency. Indeed,

Third. BENECO contends that exemplary damages should not be awarded as

the amount claimed was not specified in the body nor in the prayer of the
complaint, in contravention of the mandate in Rule 11 of the Interim Rules and
Guidelines implementing BP 129 which requires the amount of damages to be
specifically alleged apparently for the purpose of computing the docket fees.
BENECO's contention deserves no merit. The amount of exemplary damages
need not be pleaded in the complaint because the same cannot be

predetermined. One can merely ask that it be fixed by the court as the evidence
may warrant and be awarded at its own discretion. [14] In fact, the amount of
exemplary damages need not be proved because its determination is contingent
upon or incidental to the amount of compensatory damages that may be
awarded to the claimant. Moreover, this Court in a number of occasions ruled
that the amount of docket fees to be paid should be computed on the basis of
the amount of the damages stated in the complaint. Where subsequently
however the judgment awarded a claim not specified in the pleading, or if
specified, the same was left for the determination of the court, an additional filing
fee therefor may be assessed and considered to constitute a lien on the
judgment.[15]
We are not unaware of the principle laid down in Tacay v. Regional Trial Court of
Tagum[16]where the trial court was ordered to either expunge the unspecified
claim for exemplary damages or allow the private respondent to amend the
complaint within a reasonable time and specify the amount thereof and then pay
the corresponding docket fees. However, we prefer not to expunge the claim for
exemplary damages and pursue the Tacay lead, for to delete the claim for
exemplary damages would be to give premium to BENECO's gross negligence
while to order the amendment of the complaint would be to unjustly delay the
proceedings and prolong further the almost fifteen-year agony of the intended
beneficiaries.
Exemplary damages are imposed by way of example or correction for the public
good, in addition to moral, temperate, liquidated or compensatory damages. It is
awarded as a deterrent to socially deleterious actions. In quasi-delict, exemplary
damages are awarded when the act or omission which caused injury is attended
by gross negligence.[17] Gross negligence has been defined as negligence
characterized by the want of even slight care, acting or omitting to act in a
situation where there is duty to act, not inadvertently but willfully and
intentionally, with a conscious indifference to consequences in so far as other
persons may be affected.[18]
In the instant case, there is a clear showing of BENECO's gross negligence
when it failed to detect, much less to repair, for an inexcusably long period of
seven (7) years the uninsulated connection which caused the death of Jose
Bernardo. The gravity of its ineptitude was compounded when it installed the
service drop line way below the prescribed minimum vertical clearance of fifteen
(15) feet. Again, precautionary measures were not taken in wanton disregard of
the possible consequences. Under these circumstances, we find no reason to
disturb the finding of respondent court awarding exemplary damages to private
respondent Bernardo in the amount of P20,000.00.
Finally, BENECO questions the grant of moral damages and attorney's fees on
the same ground of non-culpability. It is settled that moral damages are not
intended to enrich the complainant but to serve to obviate his/her spiritual
suffering by reason of the culpable action of the defendant. Its award is aimed at
the restoration of the spiritual status quo ante, and it must be commensurate to
the suffering inflicted. As a result of the accidental death of Jose, his widow

Caridad and their three (3) minor children had to scrounge for a living in order to
keep their heads above water. Caridad had to depend on the generosity of her
relatives which came intermittently and far between and augment whatever she
received from them with her meager income from her small business. She must
have agonized over the prospect of raising her three (3) small children all by
herself given her unstable financial condition. For the foregoing reasons, we
sustain the award of moral damages by respondent court except as to the
amount thereof. In the instant case, we are of the opinion that moral damages in
the amount of P50,000.00 are more in accord with the injury suffered by private
respondent and her children.
As for attorney's fees, we find no legal nor factual basis to overturn the ruling of
respondent court on the matter; accordingly, the grant of P20,000.00 attorney's
fees to private respondent Bernardo is adopted.
WHEREFORE, the assailed Decision of the Court of Appeals dated 5 November
1996 ordering petitioner Benguet Electric Cooperative, Inc., to pay private
respondent Caridad O. Bernardo as guardianad litem for the minors Jojo, Jeffrey
and Jo-an, all surnamed Bernardo, P20,000.00 as exemplary damages,
another P20,000.00 for attorney's fees, and P50,000.00 as indemnity for the
death of Jose Bernardo, is AFFIRMED with the MODIFICATION that
the P864,000.00 as net income loss is reduced to P675,000.00 and
the P100,000.00 as moral damages is also reduced to P50,000.00.
Costs against petitioner.
SO ORDERED.

G.R. No. 156037

May 28, 2007

MERCURY DRUG CORPORATION, Petitioner,

vs.
SEBASTIAN M. BAKING, Respondent.
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari 1 assailing the
Decision2 dated May 30, 2002 and Resolution dated November 5, 2002 of the

Court of Appeals in CA-G.R. CV No. 57435, entitled "Sebastian M. Baking,

plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-appellant."

3. plus % of the cost of the suit.

SO ORDERED.

The facts are:

On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of
Dr. Cesar Sy for a medical check-up. On the following day, after undergoing an
ECG, blood, and hematology examinations and urinalysis, Dr. Sy found that
respondents blood sugar and triglyceride were above normal levels. Dr. Sy then
gave respondent two medical prescriptions Diamicron for his blood sugar and
Benalize tablets for his triglyceride.
Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang
Branch) to buy the prescribed medicines. However, the saleslady misread the
prescription for Diamicron as a prescription for Dormicum. Thus, what was sold
to respondent was Dormicum, a potent sleeping tablet.
Unaware that what was given to him was the wrong medicine, respondent took
one pill of Dormicum on three consecutive days November 6, 1993 at 9:00
p.m., November 7 at 6:00 a.m., and November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine, respondent figured in
a vehicular accident. The car he was driving collided with the car of one Josie
Peralta. Respondent fell asleep while driving. He could not remember anything
about the collision nor felt its impact.
Suspecting that the tablet he took may have a bearing on his physical and
mental state at the time of the collision, respondent returned to Dr. Sys clinic.
Upon being shown the medicine, Dr. Sy was shocked to find that what was sold
to respondent was Dormicum, instead of the prescribed Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC),
Branch 80 of Quezon City a complaint for damages against petitioner, docketed
as Civil Case No. Q-94-20193.
After hearing, the trial court rendered its Decision dated March 18, 1997 in favor
of respondent, thus:
WHEREFORE, premises considered, by preponderance of evidence, the Court
hereby renders judgment in favor of the plaintiff and against the defendant
ordering the latter to pay mitigated damages as follows:
1. P250,000.00 as moral damages;
2. P20,000.00 as attorneys fees and litigation expenses;

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC
judgment. Petitioner filed a motion for reconsideration but it was denied in a
Resolution dated November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals is not in accord
with law or prevailing jurisprudence.
Respondent, on the other hand, maintains that the petition lacks merit and,
therefore, should be denied.
The issues for our resolution are:
1. Whether petitioner was negligent, and if so, whether such negligence
was the proximate cause of respondents accident; and
2. Whether the award of moral damages, attorneys fees, litigation
expenses, and cost of the suit is justified.
Article 2176 of the New Civil Code provides:
Art. 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 is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
To sustain a claim based on the above provision, the following requisites must
concur: (a) damage suffered by the plaintiff; (b) fault or negligence of the
defendant; and, (c) connection of cause and effect between the fault or
negligence of the defendant and the damage incurred by the plaintiff. 3
There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued with public
interest. The health and safety of the people will be put into jeopardy if drugstore
employees will not exercise the highest degree of care and diligence in selling
medicines. Inasmuch as the matter of negligence is a question of fact, we defer
to the findings of the trial court affirmed by the Court of Appeals.

Obviously, petitioners employee was grossly negligent in selling to respondent

Dormicum, instead of the prescribed Diamicron. Considering that a fatal mistake
could be a matter of life and death for a buying patient, the said employee
should have been very cautious in dispensing medicines. She should have
verified whether the medicine she gave respondent was indeed the one
prescribed by his physician. The care required must be commensurate with the
danger involved, and the skill employed must correspond with the superior
knowledge of the business which the law demands.41awphi1.nt
Petitioner contends that the proximate cause of the accident was respondents
negligence in driving his car.
We disagree.
Proximate cause is defined as any cause that produces injury in a natural and
continuous sequence, unbroken by any efficient intervening cause, such that the
result would not have occurred otherwise. Proximate cause is determined from
the facts of each case, upon a combined consideration of logic, common sense,
policy, and precedent.5
Here, the vehicular accident could not have occurred had petitioners employee
been careful in reading Dr. Sys prescription. Without the potent effects of
Dormicum, a sleeping tablet, it was unlikely that respondent would fall asleep
while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code which states:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for
ones own acts or omissions, but also for those of persons for whom one is
responsible.
xxx
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed the diligence of a good father of a family to
prevent damage.
It is thus clear that the employer of a negligent employee is liable for the
damages caused by the latter. When an injury is caused by the negligence of an
employee, there instantly arises a presumption of the law that there has been
negligence on the part of the employer, either in the selection of his employee or
in the supervision over him, after such selection. The presumption, however,
may be rebutted by a clear showing on the part of the employer that he has
exercised the care and diligence of a good father of a family in the selection and
supervision of his employee.6 Here, petitioner's failure to prove that it exercised
the due diligence of a good father of a family in the selection and supervision of
its employee will make it solidarily liable for damages caused by the latter.
As regards the award of moral damages, we hold the same to be in order. Moral
damages may be awarded whenever the defendants wrongful act or omission is
the proximate cause of the plaintiffs physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury in the cases specified or analogous to those
provided in Article 2219 of the Civil Code.7
Respondent has adequately established the factual basis for the award of moral
damages when he testified that he suffered mental anguish and anxiety as a
result of the accident caused by the negligence of petitioners employee.
There is no hard-and-fast rule in determining what would be a fair and
reasonable amount of moral damages, since each case must be governed by its
own peculiar facts. However, it must be commensurate to the loss or injury
suffered.8 Taking into consideration the attending circumstances here, we are
convinced that the amount awarded by the trial court is exorbitant. Thus, we
reduce the amount of moral damages from P250,000.00 toP50,000.00 only.
In addition, we also deem it necessary to award exemplary damages. Article
2229 allows the grant of exemplary damages by way of example or correction
for the public good. As mentioned earlier, the drugstore business is affected with
public interest. Petitioner should have exerted utmost diligence in the selection
and supervision of its employees. On the part of the employee concerned, she
should have been extremely cautious in dispensing pharmaceutical products.
Due to the sensitive nature of its business, petitioner must at all times maintain a
high level of meticulousness. Therefore, an award of exemplary damages in the
amount of P25,000.00 is in order.1awphi1.nt

xxx
On the matter of attorneys fees and expenses of litigation, it is settled that the
reasons or grounds for the award thereof must be set forth in the decision of the
court.9 Since the trial courts decision did not give the basis of the award, the

same must be deleted. In Vibram Manufacturing Corporation v. Manila Electric

Company,10 we held:
Likewise, the award for attorneys fees and litigation expenses should be
deleted. Well-enshrined is that "an award for attorneys fees must be stated in
the text of the courts decision and not in the dispositive portion
only"(Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals,
286 SCRA 257 [1998]). This is also true with the litigation expenses where the
body of the decision discussed nothing for its basis.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution
of the Court of Appeals in CA-G.R. CV No. 57435 are AFFIRMED with
modification in the sense that (a) the award of moral damages to respondent is
reduced from P250,000.00 to P50,000.00; (b) petitioner is likewise ordered to
pay said respondent exemplary damages in the amount of P25,000.00; and (c)
the award of attorneys fees and litigation expenses is deleted.
Costs against petitioner.
SO ORDERED.

G.R. No. 105410

July 25, 1994

PILIPINAS BANK, petitioner,

vs.
HON. COURT OF APPEALS AND FLORENCIO REYES, respondents.
Gella Reyes Danguilan & Associates for petitioner.

Santos V. Pampolina, Jr. for private respondent.

PUNO, J.:
This is a petition for review of the Decision of the respondent court 1 in CA-G.R.
CV No. 29524 dated May 13, 1992 which ordered petitioner to pay the private
respondent the sum of P50,000.00 as moral damages, P25,000.00 as attorney's
fees and cost of suit.
The facts as found both by the trial court 2 and the respondent court are:
As payments for the purchased shoe materials and rubber
shoes, Florencio Reyes issued postdated checks to Winner
Industrial Corporation for P20,927.00 and Vicente Tui, for
P11,419.50, with due dates on October 10 and 12, 1979,
respectively.
To cover the face value of the checks, plaintiff, on October 10,
1979, requested PCIB Money Shop's manager Mike Potenciano
to effect the withdrawal of P32,000.00 from his savings account
therein and have it deposited with his current account with
Pilipinas Bank (then Filman Bank), Bian Branch. Roberto
Santos was requested to make the deposit.
In depositing in the name of FLORENCIO REYES, he inquired
from the teller the current account number of Florencio Reyes to
complete the deposit slip he was accomplishing. He was
informed that it was "815" and so this was the same current
account number he placed on the deposit slip below the
depositor's name FLORENCIO REYES.
Nothing that the account number coincided with the name
Florencio, Efren Alagasi, then Current Account Bookkeeper of
Pilipinas Bank, thought it was for Florencio Amador who owned
the listed account number. He, thus, posted the deposted in the
latter's account not noticing that the depositor's surname in the
deposit slip was REYES.

12, 1979 check in favor of Vicente Tui when presented for

payment on that same date met the same fate but was advised
to try the next clearing. Two days after the October 10 check
was again dishonored, the payee returned the same to
Florencio Reyes and demanded a cash payment of its face
value which he did if only to save his name. The October 12,
1979 check was redeposited on October 18, 1979, but again
dishonored for the reason that the check was drawn against
insufficient fund.
Furious over the incident, he immediately proceeded to the
bank and urged an immediate verification of his account.
Upon verification, the bank noticed the error. The P32,000.00
deposit posted in the account of Florencio Amador was
immediately transferred to the account of Reyes upon being
cleared by Florencio Amador that he did not effect a deposit in
the amount of P32,000.00. The transfer having been effected,
the bank then honored the October 12, 1979, check (Exh. "C").
On the basis of these facts, the trial court ordered petitioner to pay to the private
respondent: (1) P200,000.00 as compensatory damages; (2) P100,000.00 as
moral damages; (3) P25,000.00 as attorney's fees, and (4) the costs of suit. On
appeal to the respondent court, the judgment was modified as aforestated.
In this petition for review, petitioner argues:
I. Respondent Court of Appeals erred on a matter of law, in not
applying the first sentence of Article 2179, New Civil Code, in
view of its own finding that respondent Reyes' own
representative committed the mistake in writing down the
correct account number;
II. Respondent Court of Appeals erred, on a matter of law, in
holding that respondent Reyes has the right to recover moral
damages and in awarding the amount of P50,000.00, when
there is no legal nor factual basis for it;
III. The Honorable Court of Appeals erred, on a matter of law, in
holding petitioner liable for attorney's fees in the amount of
P20,000.00, when there is no legal nor factual basis for it.

On October 11, 1979, the October 10, check in favor of Winner

Industrial Corporation was presented for payment. Since the
ledger of Florencio Reyes indicated that his account had only a
balance of P4,078.43, it was dishonored and the payee was
advised to try it for next clearing.

We find no merit in the petition.

On October 15, 1979, the October 10, 1979 check was

redeposited but was again dishonored. Likewise, the October

First. For Article 2179 3 of the Civil Code to apply, it must be established that
private respondent's own negligence was the immediate and proximate cause of

his injury. The concept of proximate cause is well defined in our corpus of
jurisprudence as "any cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the result complained of
and without which would not have occurred and from which it ought to have
been forseen or reasonably anticipated by a person of ordinary case that the
injury complained of or some similar injury, would result therefrom as a natural
and probable consequence." 4 In the case at bench, the proximate cause of the
injury is the negligence of petitioner's employee in erroneously posting the cash
deposit of private respondent in the name of another depositor who had a similar
first name. As held by the trial court:

deposit slip for the newly-opened joint current account of the

Canlas spouses, that sparked this half-a-million-peso damage
suit against the bank.
While the bank's negligence may not have been attended with
malice and bad faith, nevertheless, it caused serious anxiety,
embarrassment and humiliation to the private respondents for
which they are entitled to recover reasonable moral damages
(American Express International, Inc. IAC, 167 SCRA 209). The
award of reasonable attorney's fees is proper for the private
respondent's were compelled to litigate to protect their interest
(Art. 2208, Civil Code). However, the absence of malice and
bad faith renders the award of exemplary damages improper
(Globe Mackay Cable and Radio Corp. vs. Court of Appeals,
176 SCRA 778).

xxx xxx xxx

Applying the test, the bank employee is, on that basis, deemed
to have failed to exercise the degree of care required in the
performance of his duties. As earlier stated, the bank employee
posted the cash deposit in the account of Florencio Amador
from his assumption that the name Florencio appearing on the
ledger without, however, going through the full name, is the
same Florencio stated in the deposit slip. He should have
continuously gone beyond mere assumption, which was proven
to be erroneous, and proceeded with clear certainty, considering
the amount involved and the repercussions it would create on
the totality of the person notable of which is the credit standing
of the person involved should a mistake happen. The checks
issued by the plaintiff in the course of his business were
dishonored by the bank because the ledger of Florencio Reyes
indicated a balance insufficient to cover the face value of
checks.

IN VIEW WHEREOF, the petition is denied there being no reversible error in the
Decision of the respondent court. Cost against petitioner.
SO ORDERED.

Second. In light of this negligence, the liability of petitioner for moral damages
cannot be impugned. So we held inBank of the Philippine Islands vs. IAC, et al. 5
The bank is not expected to be infallible but, as correctly
observed by respondent Appellate Court, in this instance, it
must bear the blame for not discovering the mistake of its teller
despite the established procedure requiring the papers and
bank books to pass through a battery of bank personnel whose
duty it is to check and countercheck them for possible errors.
Apparently, the officials and employees tasked to do that did not
perform their duties with due care, as may be gathered from the
testimony of the bank's lone witness, Antonio Enciso, who
casually declared that "the approving officer does not have to
see the account numbers and all those things. Those are very
petty things for the approving manager to look into" (p. 78,
Record on Appeal). Unfortunately, it was a "petty thing," like the
incorrect account number that the bank teller wrote on the initial

G.R. No. 130068

October 1, 1998

FAR EASTERN SHIPPING COMPANY, petitioner,

vs.
COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.
G.R. No. 130150 October, 1998

MANILA PILOTS ASSOCIATION, petitioner,

vs.
PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING
COMPANY, respondents.

of the vessel did not slacken. A commotion ensued between the

crew members. A brief conference ensued between Kavankov
and the crew members. When Gavino inquired what was all the
commotion about, Kavankov assured Gavino that there was
nothing to it.

REGALADO, J.:
These consolidated petitions for review on certiorari seek in unison to annul and
set aside the decision 1 of respondent Court of Appeals of November 15, 1996
and its resolution 2 dated July 31, 1997 in CA-G.R. CV No. 24072, entitled
"Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company,
Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which
affirmed with modification the judgment of the trial court holding the defendantsappellants therein solidarily liable for damages in favor of herein private
respondent.
There is no dispute about the facts as found by the appellate court,
thus
. . . On June 20, 1980, the M/V PAVLODAR, flying under the
flagship of the USSR, owned and operated by the Far Eastern
Shipping Company (FESC for brevity's sake), arrived at the Port
of Manila from Vancouver, British Columbia at about 7:00
o'clock in the morning. The vessel was assigned Berth 4 of the
Manila International Port, as its berthing space. Captain Roberto
Abellana was tasked by the Philippine Port Authority to
supervise the berthing of the vessel. Appellant Senen Gavino
was assigned by the Appellant Manila Pilots' Association (MPA
for brevity's sake) to conduct docking maneuvers for the safe
berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage and
stationed himself in the bridge, with the master of the vessel,
Victor Kavankov, beside him. After a briefing of Gavino by
Kavankov of the particulars of the vessel and its cargo, the
vessel lifted anchor from the quarantine anchorage and
proceeded to the Manila International Port. The sea was calm
and the wind was ideal for docking maneuvers.
When the vessel reached the landmark (the big church by the
Tondo North Harbor) one-half mile from the pier, Gavino ordered
the engine stopped. When the vessel was already about 2,000
feet from the pier, Gavino ordered the anchor dropped.
Kavankov relayed the orders to the crew of the vessel on the
bow. The left anchor, with two (2) shackles, were dropped.
However, the anchor did not take hold as expected. The speed

After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then on the
pier apron, noticed that the vessel was approaching the pier
fast. Kavankov likewise noticed that the anchor did not take
hold. Gavino thereafter gave the "full-astern" code. Before the
right anchor and additional shackles could be dropped, the bow
of the vessel rammed into the apron of the pier causing
considerable damage to the pier. The vessel sustained damage
too, (Exhibit "7-Far Eastern Shipping). Kavankov filed his sea
protest (Exhibit "1-Vessel"). Gavino submitted his report to the
Chief Pilot (Exhibit "1-Pilot") who referred the report to the
Philippine Ports Authority (Exhibit 2-Pilot"). Abellana likewise
submitted his report of the incident (Exhibit "B").
Per contract and supplemental contract of the Philippine Ports
Authority and the contractor for the rehabilitation of the
damaged pier, the same cost the Philippine Ports Authority the
amount of P1,126,132.25 (Exhibits "D" and "E"). 3
On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through
the Solicitor General, filed before the Regional Trial Court of Manila, Branch 39,
a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen
C. Gavino and the Manila Pilots' Association, docketed as Civil Case No. 8314958, 4 praying that the defendants therein be held jointly and severally liable to
pay the plaintiff actual and exemplary damages plus costs of suit. In a decision
dated August 1, 1985, the trial court ordered the defendants therein jointly and
severally to pay the PPA the amount of P1,053,300.00 representing actual
damages and the costs of suit. 5
The defendants appealed to the Court of Appeals and raised the following
issues: (1) Is the pilot of a commercial vessel, under compulsory pilotage, solely
liable for the damage caused by the vessel to the pier, at the port of destination,
for his negligence? and (2) Would the owner of the vessel be liable likewise if
the damage is caused by the concurrent negligence of the master of the vessel
and the pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court affirmed the findings of the
court a quo except that if found no employer-employee relationship existing
between herein private respondents Manila Pilots' Association (MPA, for short)
and Capt. Gavino. 6 This being so, it ruled instead that the liability of MPA is
anchored, not on Article 2180 of the Civil Code, but on the provisions of

Customs Administrative Order No. 15-65, 7 and accordingly modified said

decision of the trial court by holding MPA, along with its co-defendants therein,
still solidarily liable to PPA but entitled MPA to reimbursement from Capt. Gavino
for such amount of the adjudged pecuniary liability in excess of the amount
equivalent to seventy-five percent (75%) of its prescribed reserve
fund. 8
Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the
decision of the Court of Appeals and both of them elevated their respective
plaints to us via separate petitions for review on certiorari.
In G. R. No. 130068, which was assigned to the Second Division of this Court,
FESC imputed that the Court of Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots'
Association as the parties solely responsible for the resulting
damages sustained by the pier deliberately ignoring the
established jurisprudence on the matter;
2. in holding that the master had not exercised the required
diligence demanded from him by the circumstances at the time
the incident happened;
3. in affirming the amount of damages sustained by the
respondent Philippine Ports Authority despite a strong and
convincing evidence that the amount is clearly exorbitant and
unreasonable;
4. in not awarding any amount of counterclaim prayed for by the
petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot Senen C.
Gavino and Manila Pilots' Association in the event that it be held
liable. 9
Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage
at the time of the incident, it was the compulsory pilot, Capt. Gavino, who was in
command and had complete control in the navigation and docking of the vessel.
It is the pilot who supersedes the master for the time being in the command and
navigation of a ship and his orders must be obeyed in all respects connected
with her navigation. Consequently, he was solely responsible for the damage
caused upon the pier apron, and not the owners of the vessel. It claims that the
master of the boat did not commit any act of negligence when he failed to
countermand or overrule the orders of the pilot because he did not see any
justifiable reason to do so. In other words, the master cannot be faulted for
relying absolutely on the competence of the compulsory pilot. If the master does

not observe that a compulsory pilot is incompetent or physically incapacitated,

the master is justified in relying on the pilot. 10
Respondent PPA, in its comment, predictably in full agreement with the ruling of
respondent court on the solidary liability of FESC, MPA and Capt. Gavino,
stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt.
Viktor Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary
liability for damages sustained by PPA. It posits that the vessel was being
piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the
bridge of the vessel, as the former took over the helm of MV Pavlodar when it
rammed and damaged the apron of the pier of Berth No. 4 of the Manila
International Port. Their concurrent negligence was the immediate and
proximate cause of the collision between the vessel and the pier Capt.
Gavino, for his negligence in the conduct of docking maneuvers for the safe
berthing of the vessel; and Capt. Kabankov, for failing to countermand the
orders of the harbor pilot and to take over and steer the vessel himself in the
face of imminent danger, as well as for merely relying on Capt. Gavino during
the berthing procedure. 11
On the other hand, in G.R. No. 130150, originally assigned to the Court's First
Division and later transferred to the Third Division. MPA, now as petitioner in this
case, avers that respondent court's errors consisted in disregarding and
misinterpreting Customs Administrative Order No. 15-65 which limits the liability
of MPA. Said pilots' association asseverates that it should not be held solidarily
liable with Capt. Gavino who, as held by respondent court is only a member, not
an employee, thereof. There being no employer-employee relationship, neither
can MPA be held liable for any vicarious liability for the respective exercise of
profession by its members nor be considered a joint tortfeasor as to be held
jointly and severally liable. 12 It further argues that there was erroneous reliance
on Customs Administrative Order No. 15-65 and the constitution and by-laws of
MPA, instead of the provisions of the Civil Code on damages which, being a
substantive law, is higher in category than the aforesaid constitution and by-laws
of a professional organization or an administrative order which bears no
provision classifying the nature of the liability of MPA for the negligence its
member pilots. 13
As for Capt. Gavino, counsel for MPA states that the former had retired from
active pilotage services since July 28, 1994 and has ceased to be a member of
petitioner pilots' association. He is not joined as a petitioner in this case since
his whereabouts are unknown. 14
FESC's comment thereto relied on the competence of the Court of Appeals in
construing provisions of law or administrative orders as bases for ascertaining
the liability of MPA, and expressed full accord with the appellate court's holding
of solidary liability among itself, MPA and Capt. Gavino. It further avers that the
disputed provisions of Customs Administrative Order No. 15-65 clearly
established MPA's solidary liability. 15

On the other hand, public respondent PPA, likewise through representations by

the Solicitor General, assumes the same supportive stance it took in G.R. No.
130068 in declaring its total accord with the ruling of the Court of Appeals that
MPA is solidarily liable with Capt. Gavino and FESC for damages, and in its
application to the fullest extent of the provisions of Customs Administrative
Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the
conditions of and govern their respective liabilities. These provisions are clear
and unambiguous as regards MPA's liability without need for interpretation or
construction. Although Customs Administrative Order No. 15-65 is a mere
regulation issued by an administrative agency pursuant to delegated legislative
authority to fix details to implement the law, it is legally binding and has the
same statutory force as any valid statute. 16
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150, said case
was consolidated with G.R. No. 130068. 18
Prefatorily, on matters of compliance with procedural requirements, it must be
mentioned that the conduct of the respective counsel for FESC and PPA leaves
much to be desired, to the displeasure and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates the former
Circular No. 28-91 which provided for what has come to be known as the
certification against forum shopping as an additional requisite for petitions filed
with the Supreme Court and the Court of Appeals, aside from the other
requirements contained in pertinent provisions of the Rules of Court therefor,
with the end in view of preventing the filing of multiple complaints involving the
same issues in the Supreme Court, Court of Appeals or different divisions
thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42 provides:
xxx xxx xxx
The petitioner shall also submit together with the petition a
certification under oath that he has not theretofore commenced
any other action involving the same issues in the Supreme
Court, the Court of Appeals or different divisions thereof, or any
other tribunal or agency; if there is such other action or
proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of
Appeals or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom. (Emphasis ours.)

For petitions for review filed before the Supreme Court, Section 4(e),
Rule 45 specifically requires that such petition shall contain a sworn
certification against forum shopping as provided in the last paragraph of
Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del Rosario through its
associate, Atty. Herbert A. Tria, is the counsel of record for FESC in both G.R.
No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second Division, commenced
with the filing by FESC through counsel on August 22, 1997 of a verified motion
for extension of time to file its petition for thirty (30) days from August 28, 1997
or until September 27, 1997. 20 Said motion contained the following certification
against forum shopping 21 signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
I/we hereby certify that I/we have not commenced any other
action or proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or agency; that
to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals, or any
other tribunal or agency; that if I/we should thereafter learn that
a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals, or any other
tribunal or agency, I/we undertake to report that fact within five
(5) days therefrom to this Honorable Court.
This motion having been granted, FESC subsequently filed its petition
on September 26, 1997, this time bearing a "verification and certification
against forum-shopping" executed by one Teodoro P. Lopez on
September 24, 1997, 22 to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation
to Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn, depose
and state:

1. That I am the Manager, Claims Department of Filsov Shipping

Company, the local agent of petitioner in this case.
2. That I have caused the preparation of this Petition for Review
on Certiorari.
3. That I have read the same and the allegations therein
contained are true and correct based on the records of this
case.
4. That I certify that petitioner has not commenced any other
action or proceeding involving the same issues in the Supreme
Court or Court of Appeals, or any other tribunal or agency, that
to the best of my own knowledge, no such action or proceeding
is pending in the Supreme Court, the Court of Appeals or any
other tribunal or agency, that if I should thereafter learn that a
similar action or proceeding has been filed or is pending before
the Supreme Court, the Court of Appeals, or any other tribunal
or agency, I undertake to report the fact within five (5) days
therefrom to this Honorable Court. (Italics supplied for
emphasis.)
Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150
then pending with the Third Division was duly filed on August 29, 1997 with a
copy thereof furnished on the same date by registered mail to counsel for
FESC. 23 Counsel of record for MPA. Atty. Jesus P. Amparo, in his verification
accompanying said petition dutifully revealed to the Court that
xxx xxx xxx
3. Petitioner has not commenced any other action or proceeding
involving the same issues in this Honorable Court, the Court of
Appeals or different Divisions thereof, or any other tribunal or
agency,but to the best of his knowledge, there is an action or
proceeding pending in this Honorable Court, entitled Far
Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority
and Court of Appeals with a Motion for Extension of time to file
Petition For Review by Certiorari filed sometime on August 18,
1987. If undersigned counsel will come to know of any other
pending action or claim filed or pending he undertakes to report
such fact within five (5) days to this Honorable
Court. 24 (Emphasis supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail
on August 29, 1997 and taking judicial notice of the average period of time it
takes local mail to reach its destination, by reasonable estimation it would be fair

to conclude that when FESC filed its petition in G.R. No. 130068 on September
26, 1997, it would already have received a copy of the former and would then
have knowledge of the pendency of the other petition initially filed with the First
Division. It was therefore incumbent upon FESC to inform the Court of that fact
through its certification against forum shopping. For failure to make such
disclosure, it would appear that the aforequoted certification accompanying the
petition in G.R. No. 130068 is defective and could have been a ground for
dismissal thereof.
Even assuming that FESC had not yet received its copy of MPA's petition at the
time it filed its own petition and executed said certification, its signatory did state
"that if I should thereafter learn that a similar action or proceeding has been filed
or is pending before the Supreme Court, the Court of Appeals or any other
tribunal or agency, I undertake to report the fact within five (5) days therefrom to
this Honorable Court." 25 Scouring the records page by page in this case, we find
that no manifestation concordant with such undertaking was then or at any other
time thereafter ever filed by FESC nor was there any attempt to bring such
matter to the attention of the Court. Moreover, it cannot feign non-knowledge of
the existence of such other petition because FESC itself filed the motion for
consolidation in G.R. No. 130150 of these two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del
Rosario, displays an unprofessional tendency of taking the Rules for granted, in
this instance exemplified by its pro forma compliance therewith but apparently
without full comprehension of and with less than faithful commitment to its
undertakings to this Court in the interest of just, speedy and orderly
administration of court proceedings.
As between the lawyer and the courts, a lawyer owes candor, fairness and good
faith to the court. 26 He is an officer of the court exercising a privilege which is
indispensable in the administration of justice. 27 Candidness, especially towards
the courts, is essential for the expeditious administration of justice. Courts are
entitled to expect only complete honesty from lawyers appearing and pleading
before them. 28 Candor in all dealings is the very essence of honorable
membership in the legal profession. 29 More specifically, a lawyer is obliged to
observe the rules of procedure and not to misuse them to defeat the ends of
justice. 30 It behooves a lawyer, therefore, to exert every effort and consider it his
duty to assist in the speedy and efficient administration of justice. 31 Being an
officer of the court, a lawyer has a responsibility in the proper administration of
justice. Like the court itself, he is an instrument to advance its ends the
speedy, efficient, impartial, correct and inexpensive adjudication of cases and
the prompt satisfaction of final judgments. A lawyer should not only help attain
these objectives but should likewise avoid any unethical or improper practices
that impede, obstruct or prevent their realization, charged as he is with the
primary task of assisting in the speedy and efficient administration of justice. 32

Sad to say, the members of said law firm sorely failed to observe their duties as
responsible members of the Bar. Their actuations are indicative of their
predisposition to take lightly the avowed duties of officers of the Court to
promote respect for law and for legal processes. 33 We cannot allow this state of
things to pass judicial muster.
In view of the fact that at around the time these petitions were commenced, the
1997 Rules of Civil Procedure had just taken effect, the Court treated infractions
of the new Rules then with relative liberality in evaluating full compliance
therewith. Nevertheless, it would do well to remind all concerned that the penal
provisions of Circular No. 28-91 which remain operative provides, inter alia:
3. Penalties.
xxx xxx xxx
(c) The submission of a false certification under Par. 2 of the
Circular shall likewise constitute contempt of court, without
prejudice to the filing of criminal action against the guilty party.
The lawyer may also be subjected to disciplinary proceedings.
It must be stressed that the certification against forum shopping ordained under
the Rules is to be executed by thepetitioner, and not by counsel. Obviously it is
the petitioner, and not always the counsel whose professional services have
been retained for a particular case, who is in the best position to know whether
he or it actually filed or caused the filing of a petition in that case. Hence, a
certification against forum shopping by counsel is a defective certification. It is
clearly equivalent to non-compliance with the requirement under Section 2, Rule
42 in relation to Section 4, Rule 45, and constitutes a valid cause for dismissal of
the petition.
Hence, the initial certification appended to the motion for extension of time to file
petition in G.R. No. 130068 executed in behalf of FESC by Atty. Tria is
procedurally deficient. But considering that it was a superfluity at that stage of
the proceeding, it being unnecessary to file such a certification with a mere
motion for extension, we shall disregard such error. Besides, the certification
subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect
to a certain extent, despite the inaccuracies earlier pointed out. In the same
vein, we shall consider the verification signed in behalf of MPA by its counsel,
Atty. Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it
served the purpose of the Rules of informing the Court of the pendency of
another action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in the speedy and
efficient administration of justice. They should be used to achieve such end and
not to derail it. 34

Counsel for PPA did not make matters any better. Despite the fact that, save for
the Solicitor General at the time, the same legal team of the Office of the
Solicitor General (OSG, for short) composed of Assistant Solicitor General
Roman G. Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant
Solicitor General Pio C. Guerrero very much later in the proceedings,
represented PPA throughout the appellate proceedings in both G.R. No. 130068
and G.R. No. 130150 and was presumably fully acquainted with the facts and
issues of the case, it took the OSG an inordinately and almost unreasonably
long period of time to file its comment, thus unduly delaying the resolution of
these cases. It took several changes of leadership in the OSG from Silvestre
H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez before the
comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210
days, a warning that no further extensions shall be granted, and personal
service on the Solicitor General himself of the resolution requiring the filing of
such comment before the OSG indulged the Court with the long required
comment on July 10, 1998. 35This, despite the fact that said office was required
to file its comment way back on November 12, 1997. 36 A closer scrutiny of the
records likewise indicates that petitoner FESC was not even furnished a copy of
said comment as required by Section 5, Rule 42. Instead, a copy thereof was
inadvertently furnished to MPA which, from the point of view of G.R. No. 130068,
was a non-party. 37 The OSG fared slightly better in G.R. No. 130150 in that it
took only six (6) extensions, or a total of 180 days, before the comment was
finally filed. 38 And while it properly furnished petitioner MPA with a copy of its
comment, it would have been more desirable and expedient in this case to have
furnished its therein co-respondent FESC with a copy thereof, if only as a matter
of professional courtesy. 39
This undeniably dilatory disinclination of the OSG to seasonably file required
pleadings constitutes deplorable disservice to the tax-paying public and can only
be categorized as censurable inefficiency on the part of the government law
office. This is most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take the inititive of
filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150,
considering its familiarity with the background of the case and if only to make its
job easier by having to prepare and file only one comment. It could not have
been unaware of the pendency of one or the other petition because, being
counsel for respondent in both cases, petitioner is required to furnish it with a
copy of the petition under pain of dismissal of the petition for failure otherwise. 40
Besides, in G.R. 130068, it prefaces its discussions thus
Incidentally, the Manila Pilots' Association (MPA), one of the
defendants-appellants in the case before the respondent Court
of Appeals, has taken a separate appeal from the said decision

to this Honorable Court, which was docketed as G.R. No.

130150 and entitled "Manila Pilots' Association, Petitioner,
versus Philippine Ports Authority and Far Eastern Shipping Co.,
Respondents." 41
Similarly, in G.R. No. 130150, it states
Incidentally, respondent Far Eastern Shipping Co. (FESC) had
also taken an appeal from the said decision to this Honorable
Court, docketed as G.R. No. 130068, entitled "Far Eastern
Shipping Co. vs. Court of Appeals and Philippine Ports
Authority." 42
We find here a lackadaisical attitude and complacency on the part of the OSG in
the handling of its cases and an almost reflexive propensity to move for
countless extensions, as if to test the patience of the Court, before favoring it
with the timely submission of required pleadings.
It must be emphasized that the Court can resolve cases only as fast as the
respective parties in a case file the necessary pleadings. The OSG, by
needlessly extending the pendency of these cases through its numerous
motions for extension, came very close to exhausting this Court's forbearance
and has regrettably fallen short of its duties as the People's Tribune.
The OSG is reminded that just like other members of the Bar, the canons under
the Code of Professional Responsibility apply with equal force on lawyers in
government service in the discharge of their official tasks. 43These ethical duties
are rendered even more exacting as to them because, as government counsel,
they have the added duty to abide by the policy of the State to promote a high
standard of ethics in public service. 44 Furthermore, it is incumbent upon the
OSG, as part of the government bureaucracy, to perform and discharge its
duties with the highest degree of professionalism, intelligence and skill 45 and to
extend prompt, courteous and adequate service to the public. 46
Now, on the merits of the case. After a judicious examination of the records of
this case, the pleadings filed, and the evidence presented by the parties in the
two petitions, we find no cogent reason to reverse and set aside the questioned
decision. While not entirely a case of first impression, we shall discuss the
issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the
matters raised in both petitions beg for validation and updating of well-worn
maritime jurisprudence. Thereby, we shall write finis to the endless fingerpointing in this shipping mishap which has been stretched beyond the limits of
judicial tolerance.

The Port of Manila is within the Manila Pilotage District which is under
compulsory pilotage pursuant to Section 8, Article III of Philippine Ports Authority
Administrative Order No. 03-85, 47 which provides that:
Sec. 8. Compulsor Pilotage Service. For entering a harbor
and anchoring thereat, or passing through rivers or straits within
a pilotage district, as well as docking and undocking at any
pier/wharf, or shifting from one berth or another, every vessel
engaged in coastwise and foreign trade shall be under
compulsory pilotage. . . .
In case of compulsory pilotage, the respective duties and responsibilities of the
compulsory pilot and the master have been specified by the same regulation in
this wise:
Sec. 11. Control of vessels and liability for damage. On
compulsory pilotage grounds, the Harbor Pilot providing the
service to a vessel shall be responsible for the damage caused
to a vessel or to life and property at ports due to his negligence
or fault. He can only be absolved from liability if the accident is
caused by force majeure or natural calamities provided he has
exercised prudence and extra diligence to prevent or minimize
damage.
The Master shall retain overall command of the vessel even on
pilotage grounds whereby he can countermand or overrule the
order or command of the Harbor Pilot on beard. In such event,
any damage caused to a vessel or to life and property at ports
by reason of the fault or negligence of the Master shall be the
responsibility and liability of the registered owner of the vessel
concerned without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its pilots
shall be determined by competent authority in appropriate
proceedings in the light of the facts and circumstances of each
particular case.
Sec. 32. Duties and responsibilities of the Pilot or Pilots'
Association. The duties and responsibilities of the Harbor
Pilot shall be as follows:
xxx xxx xxx
f) a pilot shall be held responsible for the direction of a vessel
from the time he assumes his work as a pilot thereof until he
leaves it anchored or berthed safely; Provided, however, that his

responsibility shall cease at the moment the Master neglects or

refuses to carry out hisorder.
Customs Administrative Order No. 15-65 issued twenty years earlier likewise
provided in Chapter I thereof for the responsibilities of pilots:
Par. XXXIX. A Pilot shall be held responsible for the direction
of a vessel from the time he assumes control thereof until he
leaves it anchored free from shoal: Provided, That his
responsibility shall cease at the moment the master neglects or
refuses to carry out his instructions.
xxx xxx xxx
Par. XLIV. Pilots shall properly and safely secure or anchor
vessels under their control when requested to do so by the
master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious error in not holding
MPA and Capt. Gavino solely responsible for the damages cause to the pier. It
avers that since the vessel was under compulsory pilotage at the time with Capt.
Gavino in command and having exclusive control of the vessel during the
docking maneuvers, then the latter should be responsible for damages caused
to the pier. 48 It likewise holds the appellate court in error for holding that the
master of the ship, Capt. Kabankov, did not exercise the required diligence
demanded by the circumstances. 49
We start our discussion of the successive issues bearing in mind the evidentiary
rule in American jurisprudence that there is a presumption of fault against a
moving vessel that strikes a stationary object such as a dock or navigational aid.
In admiralty, this presumption does more than merely require the ship to go
forward and produce some evidence on the presumptive matter. The moving
vessel must show that it was without fault or that the collision was occasioned by
the fault of the stationary object or was the result of inevitable accident. It has
been held that such vessel must exhaust every reasonable possibility which the
circumstances admit and show that in each, they did all that reasonable care
required. 50 In the absence of sufficient proof in rebuttal, the presumption of fault
attaches to a moving vessel which collides with a fixed object and makes
a prima facie case of fault against the vessel. 51 Logic and experience support
this presumption:
The common sense behind the rule makes the burden a heavy
one. Such accidents simply do not occur in the ordinary course
of things unless the vessel has been mismanaged in some way.

It is nor sufficient for the respondent to produce witnesses who

testify that as soon as the danger became apparent everything
possible was done to avoid an accident. The question remains,
How then did the collision occur? The answer must be either
that, in spite of the testimony of the witnesses, what was done
was too little or too late or, if not, then the vessel was at fault for
being in a position in which an unavoidable collision would
occur. 52
The task, therefore, in these cases is to pinpoint who was negligent
the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a
vessel into or out of ports, or in certain waters. In a broad sense, the term "pilot"
includes both (1) those whose duty it is to guide vessels into or out of ports, or in
particular waters and (2) those entrusted with the navigation of vessels on the
high seas. 53However, the term "pilot" is more generally understood as a person
taken on board at a particular place for the purpose of conducting a ship through
a river, road or channel, or from a port. 54
Under English and American authorities, generally speaking, the pilot
supersedes the master for the time being in the command and navigation of the
ship, and his orders must be obeyed in all matters connected with her
navigation. He becomes the master pro hac vice and should give all directions
as to speed, course, stopping and reversing anchoring, towing and the like. And
when a licensed pilot is employed in a place where pilotage is compulsory, it is
his duty to insist on having effective control of the vessel, or to decline to act as
pilot. Under certain systems of foreign law, the pilot does not take entire charge
of the vessel, but is deemed merely the adviser of the master, who retains
command and control of the navigation even in localities where pilotage is
compulsory. 55
It is quite common for states and localities to provide for compulsory pilotage,
and safety laws have been enacted requiring vessels approaching their ports,
with certain exceptions, to take on board pilots duly licensed under local law.
The purpose of these laws is to create a body of seamen thoroughly acquainted
with the harbor, to pilot vessels seeking to enter or depart, and thus protect life
and property from the dangers of navigation. 56
In line with such established doctrines, Chapter II of Customs Administrative
Order No. 15-65 prescribes the rules for compulsory pilotage in the covered
pilotage districts, among which is the Manila Pilotage District,
viz.
PARAGRAPH I. Pilotage for entering a harbor and anchoring
thereat, as well as docking and undocking in any pier or shifting

from one berth to another shall be compulsory, except

Government vessels and vessels of foreign governments
entitled to courtesy, and other vessels engaged solely in river or
harbor work, or in a daily ferry service between ports which shall
be exempt from compulsory pilotage provisions of these
regulations: provided, however, that compulsory pilotage shall
not apply in pilotage districts whose optional pilotage is allowed
under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4
of the Manila International Port. Upon assuming such office as compulsory pilot,
Capt. Gavino is held to the universally accepted high standards of care and
diligence required of a pilot, whereby he assumes to have skill and knowledge in
respect to navigation in the particular waters over which his license extends
superior to and more to be trusted than that of the master. 57A pilot 57 should
have a thorough knowledge of general and local regulations and physical
conditions affecting the vessel in his charge and the waters for which he is
licensed, such as a particular harbor or river.

It may be said that this is exacting a very high order of ability in

a pilot. But when we consider the value of the lives and property
committed to their control, for in this they are absolute masters,
the high compensation they receive, the care which Congress
has taken to secure by rigid and frequent examinations and
renewal of licenses, this very class of skill, we do not think we
fix the standard too high.
Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to
measure up to such strict standard of care and diligence required of pilots in the
performance of their duties. Witness this testimony of Capt. Gavino:
Court: You have testified before that the reason
why the vessel bumped the pier was because
the anchor was not released immediately or as
soon as you have given the order. Do you
remember having srated that?
A Yes, your Honor.

He is not held to the highest possible degree of skill and care, but must have
and exercise the ordinary skill and care demanded by the circumstances, and
usually shown by an expert in his profession. Under extraordinary
circumstancesm, a pilot must exercise extraordinary care. 58

Q And you gave this order to the captain of the

vessel?
A Yes, your Honor.

In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice Miller
spelled out in great detail the duties of a pilot:

Q By that testimony, you are leading the Court

to understand that if that anchor was released
immediately at the time you gave the order, the
incident would not have happened. Is that
correct?

. . . (T)he pilot of a river steamer, like the harbor pilot, is

selected for his personal knowledge of the topography through
which he steers his vessel. In the long course of a thousand
miles in one of these rivers, he must be familiar with the
appearance of the shore on each side of the river as he goes
along. Its banks, towns, its landings, its houses and trees, are
all landmarks by which he steers his vessel. The compass is of
little use to him. He must know where the navigable channel is,
in its relation to all these external objects, especially in the night.
He must also be familiar with all dangers that are permanently
located in the course of the river, as sand-bars, snags, sunken
rocks or trees or abandoned vessels orbarges. All this he must
know and remember and avoid. To do this, he must be
constantly informed of the changes in the current of the river, of
the sand-bars newly made,of logs or snags, or other objects
newly presented, against which his vessel might be injured.

A Yes, sir, but actually it was only a presumption

on my part because there was a commotion
between the officers who are in charge of the
dropping of the anchor and the captain. I could
not understand their language, it was in
Russian, so I presumed the anchor was not
dropped on time.
Q So, you are not sure whether it was really
dropped on time or not?
A I am not sure, your Honor.

xxx xxx xxx

xxx xxx xxx

Q You are not even sure what could have

caused the incident. What factor could have
caused the incident?
A Well, in this case now, because either the
anchor was not dropped on time or the anchor
did not hold, that was the cause of the incident,
your Honor. 60
It is disconcertingly riddled with too much incertitude and manifests a seeming
indifference for the possibly injurious consequences his commands as pilot may
have. Prudence required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly noted by the trial
court
Moreover, assuming that he did indeed give the command to
drop the anchor on time, as pilot he should have seen to it that
the order was carried out, and he could have done this in a
number of ways, one of which was to inspect the bow of the
vessel where the anchor mechanism was installed. Of course,
Captain Gavino makes reference to a commotion among the
crew members which supposedly caused the delay in the
execution of the command. This account was reflected in the
pilot's report prepared four hours later, but Capt. Kavankov,
while not admitting whether or not such a commotion occurred,
maintained that the command to drop anchor was followed
"immediately and precisely." Hence, the Court cannot give much
weight or consideration to this portion of Gavino's testimony." 61
An act may be negligent if it is done without the competence that a reasonable
person in the position of the actor would recognize as necessary to prevent it
from creating an unreasonable risk of harm to another. 62 Those who undertake
any work calling for special skills are required not only to exercise reasonable
care in what they do but also possess a standard minimum of special knowledge
and ability. 63
Every man who offers his services to another, and is employed, assumes to
exercise in the employment such skills he possesses, with a reasonable degree
of diligence. In all these employments where peculiar skill is requisite, if one
offers his services he is understood as holding himself out to the public as
possessing the degree of skill commonly possessed by others in the same
employment, and if his pretensions are unfounded he commits a species of
fraud on every man who employs him in reliance on his public profession. 64
Furthermore, there is an obligation on all persons to take the care which, under
ordinary circumstances of the case, a reasonable and prudent man would take,

and the omission of that care constitutes negligence. 65Generally, the degree of
care required is graduated according to the danger a person or property
attendant upon the activity which the actor pursues or the instrumentality which
he uses. The greater the danger the greater the degree of care required. What is
ordinary under extraordinary of conditions is dictated by those conditions;
extraordinary risk demands extraordinary care. Similarly, the more imminent the
danger, the higher the degree of care. 66
We give our imprimatur to the bases for the conclusion of the Court of Appeals
that Capt. Gavino was indeed negligent in the performance of his duties:
xxx xxx xxx
. . . As can be gleaned from the logbook, Gavino ordered the left
anchor and two (2) shackles dropped at 8:30 o'clock in the
morning. He ordered the engines of the vessel stopped at 8:31
o'clock. By then,Gavino must have realized that the anchor did
not hit a hard object and was not clawed so as to reduce the
momentum of the vessel. In point of fact, the vessel continued
travelling towards the pier at the same speed. Gavino failed to
react, At 8:32 o'clock, the two (2) tugboats began to push the
stern part of the vessel from the port side bur the momentum of
the vessel was not contained. Still, Gavino did not react. He did
not even order the other anchor and two (2) more shackles
dropped to arrest the momentum of the vessel. Neither did he
order full-astern. It was only at 8:34 o'clock, or four (4) minutes,
after the anchor was dropped that Gavino reacted. But his
reaction was even (haphazard) because instead of arresting
fully the momentum of the vessel with the help of the tugboats,
Gavino ordered merely "half-astern". It took Gavino another
minute to order a "full-astern". By then, it was too late. The
vessel's momentum could no longer be arrested and, barely a
minute thereafter, the bow of the vessel hit the apron of the pier.
Patently, Gavino miscalculated. He failed to react and undertake
adequate measures to arrest fully the momentum of the vessel
after the anchor failed to claw to the seabed. When he reacted,
the same was even (haphazard). Gavino failed to reckon the
bulk of the vessel, its size and its cargo. He erroneously
believed that only one (1) anchor would suffice and even when
the anchor failed to claw into the seabed or against a hard
object in the seabed, Gavino failed to order the other anchor
dropped immediately. His claim that the anchor was dropped
when the vessel was only 1,000 feet from the pier is but a
belated attempt to extricate himself from the quagmire of his
own insouciance and negligence. In sum, then, Appellants'
claim that the incident was caused by "force majeure" is barren
of factual basis.

xxx xxx xxx

The harbor pilots are especially trained for this job. In the
Philippines, one may not be a harbor pilot unless he passed the
required examination and training conducted then by the
Bureau of Custom, under Customs Administrative Order No. 1565, now under the Philippine Ports Authority under PPA
Administrative Order 63-85, Paragraph XXXIX of the Customs
Administrative Order No. 15-65 provides that "the pilot shall be
held responsible for the direction of the vessel from the time he
assumes control thereof, until he leaves it anchored free from
shoal: Provided, that his responsibility shall cease at
the.moment the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the procedure for
docking and undocking the vessel emanates from the harbor
pilot. In the present recourse, Gavino failed to live up to his
responsibilities and exercise reasonable care or that degree of
care required by the exigencies of the occasion. Failure on his
part to exercise the degree of care demanded by the
circumstances is negligence (Reese versus Philadelphia & RR
Co. 239 US 363, 60 L ed. 384, 57 Am Jur, 2d page 418). 67

The master is not wholly absolved from his duties while a pilot is on board his
vessel, and may advise with or offer suggestions to him. He is still in command
of the vessel, except so far as her navigation is concerned, and must cause the
ordinary work of the vessel to be properly carried on and the usual precaution
taken. Thus, in particular, he is bound to see that there is sufficient watch on
deck, and that the men are attentive to their duties, also that engines are
stopped, towlines cast off, and the anchors clear and ready to go at the pilot's
order. 72
A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss
in the discharge of his duties as master of the ship, leaving the entire docking
procedure up to the pilot, instead of maintaining watchful vigilance over this risky
maneuver:
Q Will you please tell us whether you have the
right to intervene in docking of your ship in the
harbor?
A No sir, I have no right to intervene in time of
docking, only in case there is imminent danger
to the vessel and to the pier.

This affirms the findings of the trial court regarding Capt. Gavino's negligence:

Q Did you ever intervene during the time that

your ship was being docked by Capt. Gavino?

This discussion should not however, divert the court from the
fact that negligence in manuevering the vessel must be
attributed to Capt. Senen Gavino. He was an experienced pilot
and by this time should have long familiarized himself with the
depth of the port and the distance he could keep between the
vessel and port in order to berth safely. 68

A No sir, I did not intervene at the time when the

pilot was docking my ship.
Q Up to the time it was actually docked at the
pier, is that correct?

The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no
less responsible for the allision. His unconcerned lethargy as master of the ship
in the face of troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in sole command
of the ship 69 and supersedes the master for the time being in the command and
navigation of a ship and that he becomes master pro hac vice of a vessel piloted
by him, 70 there is overwhelming authority to the effect that the master does not
surrender his vessel to the pilot and the pilot is not the master. The master is still
in command of the vessel notwithstanding the presence of a pilot. There are
occasions when the master may and should interfere and even displace the
pilot, as when the pilot is obviously incompetent or intoxicated and the
circumstances may require the master to displace a compulsory pilot because of
incompetency or physical incapacity. If, however, the master does nor observe
that a compulsory pilot is incompetent or physically incapacitated, the master is
justified in relying on the pilot, but not blindly. 71

A No sir, I did not intervene up to the very

moment when the vessel was docked.
xxx xxx xxx
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was
there anything unusual that happened during
the docking?
A Yes sir, our ship touched ihe pier and the pier
was damaged.

Court (to the witness)

A None Your Honor, I believe that Capt. Gavino

thought that the anchor could keep or hold the
vessel.

Q When you said touched the pier, are you

leading the court to understand that your ship
bumped the pier?

Q You want us to understand, Mr. Witness, that

the dropping of the anchor of the vessel was
nor timely?

A I believe that my vessel only touched the pier

but the impact was very weak.

A I don't know the depth of this port but I think,

if the anchor was dropped earlier and with more
shackles, there could not have been an
incident.

Q Do you know whether the pier was damaged

as a result of that slight or weak impact?
A Yes sir, after the pier was damaged.

Q So you could not precisely tell the court that

the dropping of the anchor was timery because
you are not well aware of the seabed, is that
correct?

xxx xxx xxx

Q Being most concerned with the safety of your
vessel, in the maneuvering of your vessel to the
port, did you observe anything irregular in the
maneuvering by Capt. Gavino at the time he
was trying to cause the vessel to be docked at
the pier?
A You mean the action of Capt. Gavino or his
condition?
Court:
Q Not the actuation that conform to the safety
maneuver of the ship to the harbor?
A No sir, it was a usual docking.

A Yes sir, that is right.

xxx xxx xxx
Q Alright, Capt. Kavankov, did you come to
know later whether the anchor held its ground
so much so that the vessel could not travel?
A It is difficult for me to say definitely. I believe
that the anchor did not hold the ship.
Q You mean you don't know whether the
anchor blades stuck to the ground to stop the
ship from further moving?

Q By that statement of yours, you are leading

the court to understand that there was nothing
irregular in the docking of the ship?

A Yes sir, it is possible.

A Yes sir, during the initial period of the docking,

there was nothing unusual that happened.

A I think, the 2 shackles were not enough to

hold the vessel.

Q What about in the last portion of the docking

of the ship, was there anything unusual or
abnormal that happened?

Q Did you know that the 2 shackles were

dropped?

Q What is possible?

A Yes sir, I knew that.

Q If you knew that the shackles were not

enough to hold the ship, did you not make any
protest to the pilot?

Q All indications necessary for men on the

bridge to be informed of the movements of the
ship?

A No sir, after the incident, that was my

assumption.

A That is right.

Q Did you come to know later whether that

presumption is correct?
A I still don't know the ground in the harbor or
the depths.
Q So from the beginning, you were not
competent whether the 2 shackles were also
dropped to hold the ship?
A No sir, at the beginning, I did not doubt it
because I believe Capt. Gavino to be an
experienced pilot and he should be more aware
as to the depths of the harbor and the ground
and I was confident in his actions.
xxx xxx xxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the
bridge of the vessel before the inicident
happened, were you not?
A Yes sir, all the time, I was standing with the
pilot.
Q And so whatever the pilot saw, you could also
see from that point of view?
A That is right.
Q Whatever the piler can read from the panel of
the bridge, you also could read, is that correct?
A What is the meaning of panel?

Q And whatever sound the captain . . . Capt.

Gavino would hear from the bridge, you could
also hear?
A That is right.
Q Now, you said that when the command to
lower the anchor was given, it was obeyed, is
that right?
A This command was executed by the third
mate and boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you
said that you did not intervene with the duties of
the pilot and that, in your opinion, you can only
intervene if the ship is placed in imminent
danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident
actually happened, did you observe whether or
not the ship, before the actual incident, the ship
was placed in imminent danger?
A No sir, I did not observe.
Q By that answer, are you leading the court to
understand that because you did not intervene
and because you believed that it was your duty
to intervene when the vessel is placed in
imminent danger to which you did not observe
any imminent danger thereof, you have not
intervened in any manner to the command of
the pilot?

A That is right, sir.

A I was close to him, I was hearing his

command and being executed.

xxx xxx xxx

Q And that you were also alert for any possible
mistakes he might commit in the maneuvering
of the vessel?

Q Assuminp that you disagreed with the pilot

regarding the step being taken by the pilot in
maneuvering the vessel, whose command will
prevail, in case of imminent danger to the
vessel?

A Yes sir, that is right.

Q But at no time during the maneuver did you
issue order contrary to the orders Capt. Gavino
made?

A I did nor consider the situation as having an

imminent danger. I believed that the vessel will
dock alongside the pier.

A No sir.
Q You want us to understand that you did not
see an imminent danger to your ship, is that
what you mean?

Q So that you were in full accord with all of

Capt. Gavino's orders?

A Yes sir, up to the very last moment, I believed

that there was no imminent danger.

A Yes sir.
Q Because, otherwise, you would have issued
order that would supersede his own order?

Q Because of that, did you ever intervene in the

command of the pilot?

A In that case, I should t,ke him away from his

command or remove the command from him.

A Yes sir, I did not intervene because I believed

that the command of the pilot to be correct.

Court (to the witness)

Solicitor Abad (to the witness)

Q You were in full accord with the steps being

taken by Capt. Gavino because you relied on
his knowledge, on his familiarity of the seabed
and shoals and other surroundings or
conditions under the sea, is that correct?

Q As a captain of M/V Pavlodar, you consider

docking maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port
or pier, but also the safety of the vessel and the
cargo, is it not?

A Yes sir, that is right.

xxx xxx xxx

A That is right.

Solicitor Abad (to the witness)

Q So that, I assume that you were watching

Capt. Gavino very closely at the time he was
making his commands?

Q And so after the anchors were ordered

dropped and they did not take hold of the
seabed, you were alerted that there was danger
already on hand?

A No sir, there was no imminent danger to the

vessel.

May I ask that the question . . .

Solicitor Abad:

Q Do you mean to tell us that even if the anchor

was supposed to take hold of the bottom and it
did not, there was no danger to the ship?
A Yes sir, because the anchor dragged on the
ground later.

Never mind, I will reform the question.

xxx xxx xxx
Solicitor Abad (to the witness)

Q And after a few moments when the anchor

should have taken hold the seabed bur not
done (sic), as you expected, you already were
alerted that there was danger to the ship, is that
correct?

Q Is it not a fact that the vessel bumped the

pier?

A Yes sir, I was alerted but there was no

danger.

Q For the main reason that the anchor of the

vessel did not hold the ground as expected?

Q And you were alerted that somebody was

wrong?

A Yes sir, that is my opinion. 73

A Yes sir, I was alerted.

Q And this alert vou assumed was the ordinary
alertness that you have for normal docking?
A Yes sir, I mean that it was usual condition of
any man in time of docking to be alert.
Q And that is the same alertness when the
anchor did not hold onto the ground, is that
correct?
A Yes sir, me and Capt. Gavino (thought) that
the anchor will hold the ground.
Q Since, as you said that you agreed all the
while with the orders of Capt. Gavino, you also
therefore agreed with him in his failure to take
necessary precaution against the eventuality
that the anchor will not hold as expected?
Atty. Del Rosario:

A That is right, it bumped the pier.

Further, on redirect examination, Capt. Kabankov fortified his apathetic

assessment of the situation:
Q Now, after the anchor was dropped, was
there any point in time that you felt that the
vessel was in imminent danger.
A No, at that time, the vessel was not in
imminent, danger, sir. 74
This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal
to Capt. Gavino's anxious assessment of the situation:
Q When a pilot is on board a vessel, it is the
piler's command which should be followed at
that moment until the vessel is, or goes to port
or reaches port?
A Yes, your Honor, but it does not take away
from the Captain his prerogative to
countermand the pilot.
Q In what way?

A In any case, which he thinks the pilot is not

maneuvering correctly, the Captain always has
the prerogative to countermand the pilot's order.

Atty. Catris:
But in this instance of docking of the MV
Pavlodar, do you remember of a time during the
course of the docking that the MV Pavlodar was
in imminent danger of bumping the pier?

Q But insofar as competence, efficiency and

functional knowledee of the seabed which are
vital or decisive in the safety (sic) bringing of a
vessel to the port, he is not competent?

A When we were about more than one

thousand meters from the pier, I think, the
anchor was not holding, so I immediately
ordered to push the bow at a fourth quarter, at
the back of the vessel in order to swing the bow
away from the pier and at the same time, I
ordered for a full astern of the engine. 75

A Yes, your Honor. That is why they hire a pilot

in an advisory capacity, but still, the safety of
the vessel rest(s) upon the Captain, the Master
of the vessel.
Q In this case, there was not a disagreement
between you and the Captain of the vessel in
the bringing of the vessel to port?

These conflicting reactions can only imply, at the very least, unmindful
disregard or, worse, neglectful relinquishment of duty by the shipmaster,
tantamount to negligence.

A No, your Honor.

The findings of the trial court on this aspect is noteworthy:
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here
that he was all along in conformity with the
orders you, gave to him, and, as matter of fact,
as he said, he obeyed all your orders. Can you
tell, if in the course of giving such normal orders
for the saf(e) docking of the MV Pavlodar, do
you remember of any instance that the Master
of the vessel did not obey your command for
the safety docking of the MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court
that there was no disagreement insofar as the
bringing of the vessel safely to the port.

For, while the pilot Gavino may indeed have been charged with
the task of docking the vessel in the berthing space, it is
undisputed that the master of the vessel had the corresponding
duty to countermand any of the orders made by the pilot, and
even maneuver the vessel himself, in case of imminent danger
to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all
throughour the man(eu)vering procedures he did not notice
anything was going wrong, and even observed that the order
given to drop the anchor was done at the proper time. He even
ventured the opinion that the accident occurred because the
anchor failed to take hold but that this did not alarm him
because.there was still time to drop a second anchor.
Under normal circumstances, the abovementioned facts would
have caused the master of a vessel to take charge of the
situation and see to the man(eu)vering of the vessel himself.
Instead, Capt. Kavankov chose to rely blindly upon his pilot,
who by this time was proven ill-equipped to cope with the
situation.
xxx xxx xxx

It is apparent that Gavino was negligent but Far Eastern's

employee Capt. Kavankov was no lesss responsible for as
master of the vessel he stood by the pilot during the
man(eu)vering procedures and was privy to every move the
latter made, as well as the vessel's response to each of the
commands. His choice to rely blindly upon the pilot's skills, to
the point that despite being appraised of a notice of alert he
continued to relinquish control of the vessel to Gavino, shows
indubitably that he was not performing his duties with the
diligence required of him and therefore may be charged with
negligence along with defend;int Gavino. 76

The stark incompetence of Kavankov is competent evidence to

prove the unseaworthiness of the vessel. It has been held that
the incompetence of the navigator, the master of the vessel or
its crew makes the vessel unseaworthy (Tug Ocean Prince
versus United States of America, 584 F. 2nd, page 1151).
Hence, the Appellant FESC is likewise liable for the damage
sustained by the Appellee. 77
We find strong and well-reasoned support in time-tested American maritime
jurisprudence, on which much of our laws and jurisprudence on the matter are
based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino
and Capt. Kabankov negligent.

As correctly affirmed by the Court of Appeals

We are in full accord with the findings and disquisitions of the
Court a quo.
In the present recourse, Captain Viktor Kavankov had been a
mariner for thirty-two years before the incident. When Gavino
was (in) the command of the vessel, Kavankov was beside
Gavino, relaying the commands or orders of Gavino to the
crewmembers-officers of the vessel concerned. He was thus
fully aware of the docking maneuvers and procedure Gavino
undertook to dock the vessel. Irrefragably, Kavankov was fully
aware of the bulk and size of the vessel and its cargo as well as
the weight of the vessel. Kavankov categorically admitted that,
when the anchor and two (2) shackles were dropped to the sea
floor, the claws of the anchor did not hitch on to any hard object
in the seabed. The momentum of the vessel was not arrested.
The use of the two (2) tugboats was insufficient. The momentum
of the vessel, although a little bit arrested, continued (sic) the
vessel going straightforward with its bow towards the port
(Exhibit "A-1 ). There was thus a need for the vessel to move
"full-astern" and to drop the other anchor with another shackle
or two (2), for the vessel to avoid hitting the pier. Kavankov
refused to act even as Gavino failed to act. Even as Gavino
gave mere "half-astern" order, Kavankov supinely stood by. The
vessel was already about twenty (20) meters away from the pier
when Gavino gave the "full-astern" order. Even then, Kavankov
did nothing to prevent the vessel from hitting the pier simply
because he relied on the competence and plan of Gavino. While
the "full-astern'' maneuver momentarily arrested the momentum
of the vessel, it was, by then, too late. All along, Kavankov stood
supinely beside Gavino, doing nothing but relay the commands
of Gavino. Inscrutably, then, Kavankov was negligent.
xxx xxx xxx

As early as 1869, the U.S. Supreme Court declared, through Mr. Justice
Swayne, in The Steamship China vs. Walsh, 78 that it is the duty of the master to
interfere in cases of the pilot's intoxication or manifest incapacity, in cases of
danger which he does not foresee, and in all cases of great necessity. The
master has the same power to displace the pilot that he has to remove any
subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown,
emphatically ruled that:
Nor are rye satisfied with the conduct of the master in leaving
the pilot in sole charge of the vessel. While the pilot doubtless
supersedes the master for the time being in the command and
navigation of the ship, and his orders must be obeyed in all
matters connected with her navigation, the master is not wholly
absolved from his duties while the pilot is on board, and may
advise with him, and even displace him in case he is intoxicated
or manifestly incompetent. He is still in command of the vessel,
except so far as her navigation is concerned, and bound to see
that there is a sufficient watch on deck, and that the men are
attentive to their duties.
. . . (N)orwithstanding the pilot has charge, it is the duty of the
master to prevent accident, and not to abandon the vessel
entirely to the pilot; but that there are certain duties he has to
discharge (notwithstanding there is a pilot on board) for the
benefit of the owners. . . . that in well conducted ships the
master does not regard the presence of a duly licensed pilot in
compulsory pilot waters as freeing him from every, obligation to
attend to the safety of the vessel; but that, while the master
sees that his officers and crew duly attend to the pilot's
orders, he himself is bound to keep a vigilant eye on the
navigation of the vessel, and, when exceptional circumstances

exist, not only to urge upon the pilot to use every precaution,
but to insist upon such being taken. 79 (Italics for emphasis.)
In Jure vs. United Fruit Co., 80 which, like the present petitions, involved
compulsory pilotage, with a similar scenario where at and prior to the time of
injury, the vessel was in the charge of a pilot with the master on the bridge of the
vessel beside said pilot, the court therein ruled:
The authority of the master of a vessel is not in complete
abeyance while a pilot, who is required by law to be accepted, is
in discharge of his functions. . . . It is the duty of the master to
interfere in cases of the pilot's intoxication or manifest
incapacity, in cases of danger which he does not foresee, and in
all cases of great necessity. The master has the same power to
displace the pilot that he has to remove any subordinate officer
of the vessel. He may exercise it, or not, according to his
discretion. There was evidence to support findings that piaintiff's
injury was due to the negligent operation of the Atenas, and that
the master of that vessel was negligent in failing to take action
to avoid endangering a vessel situated as the City of Canton
was and persons or property thereon.
A phase of the evidence furnished support for the inferences . . .
that he negligently failed to suggest to the pilot the danger
which was disclosed, and means of avoiding such danger; and
that the master's negligence in failing to give timelt admonition
to the pilot proximately contributed to the injury complained of.
We are of opinion that the evidence mentioned tended to prove
conduct of the pilot, known to the master, giving rise to a case of
danger or great necessity, calling for the intervention of the
master. A master of a vessel is not without fault in acquiescing
in canduct of a pilot which involves apparent and avoidable
danger, whether such danger is to the vessel upon which the
pilot is, or to another vessel, or persons or property thereon or
on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the captain of a vessel
alongside the compulsory pilot was deemed to be negligent, since, in the words
of the court, "he was in a position to exercise his superior authority if he had
deemed the speed excessive on the occasion in question. I think it was clearly
negligent of him not to have recognized the danger to any craft moored at
Gravell Dock and that he should have directed the pilot to reduce his speed as
required by the local governmental regulations. His failure amounted to
negligence and renders the respondent liable." 81 (Emphasis supplied.) Though
a compulsory pilot might be regarded as an independent contractor, he is at all
times subject to the ultimate control of the ship's master. 82

In sum, where a compulsory pilot is in charge of a ship, the master being

required to permit him to navigate it, if the master observes that the pilot is
incompetent or physically incapable, then it is the dury of the master to refuse to
permit the pilot to act. But if no such reasons are present, then the master is
justified in relying upon the pilot, but not blindly. Under the circumstances of this
case, if a situation arose where the master, exercising that reasonable vigilance
which the master of a ship should exercise, observed, or should have observed,
that the pilot was so navigating the vessel that she was going, or was likely to
go, into danger, and there was in the exercise of reasonable care and vigilance
an opportunity for the master to intervene so as to save the ship from danger,
the master should have acted accordingly. 83 The master of a vessel must
exercise a degree of vigilance commensurate with the circumstances. 84
Inasmuch as the matter of negligence is a question of fact, 85 we defer to the
findings of the trial court, especially as this is affirmed by the Court of
Appeals. 86 But even beyond that, our own evaluation is that Capt. Kabankov's
shared liability is due mainly to the fact that he failed to act when the perilous
situation should have spurred him into quick and decisive action as master of
the ship. In the face of imminent or actual danger, he did not have to wait for the
happenstance to occur before countermanding or overruling the pilot. By his
own admission, Capt. Kabankov concurred with Capt. Gavino's decisions, and
this is precisely the reason why he decided not to countermand any of the
latter's orders. Inasmuch as both lower courts found Capt. Gavino negligent, by
expressing full agreement therewith Capt. Kabankov was just as negligent as
Capt. Gavino.
In general, a pilot is personally liable for damages caused by his own negligence
or default to the owners of the vessel, and to third parties for damages sustained
in a collision. Such negligence of the pilot in the performance of duty constitutes
a maritime tort. 87 At common law, a shipowner is not liable for injuries inflicted
exclusively by the negligence of a pilot accepted by a vessel compulsorily. 88 The
exemption from liability for such negligence shall apply if the pilot is actually in
charge and solely in fault. Since, a pilot is responsible only for his own personal
negligence, he cannot be held accountable for damages proximately caused by
the default of others, 89 or, if there be anything which concurred with the fault of
the pilot in producing the accident, the vessel master and owners are liable.
Since the colliding vessel is prima facie responsible, the burden of proof is upon
the party claiming benefit of the exemption from liability. It must be shown
affirmatively that the pilot was at fault, and that there was no fault on the part of
the officers or crew, which might have been conducive to the damage. The fact
that the law compelled the master to take the pilot does not exonerate the vessel
from liability. The parties who suffer are entitled to have their remedy against the
vessel that occasioned the damage, and are not under necessity to look to the
pilot from whom redress is not always had for compensation. The owners of the
vessel are responsible to the injured party for the acts of the pilot, and they must
be left to recover the amount as well as they can against him. It cannot be

maintained that the circumstance of having a pilot on board, and acting in

conformity to his directions operate as a discharge of responsibility of the
owners. 90 Except insofar as their liability is limited or exempted by statute, the
vessel or her owner are liable for all damages caused by the negligence or other
wrongs of the owners or those in charge of the vessel. Where the pilot of a
vessel is not a compulsory one in the sense that the owner or master of the
vessel are bound to accept him, but is employed voluntarily, the owners of the
vessel are, all the more, liable for his negligent act. 91
In the United States, the owners of a vessel are not personally liable for the
negligent acts of a compulsory pilot, but by admiralty law, the fault or negligence
of a compulsory pilot is imputable to the vessel and it may be held liable
therefor in rem. Where, however, by the provisions of the statute the pilot is
compulsory only in the sense that his fee must be paid, and is not in compulsory
charge of the vessel, there is no exemption from liability. Even though the pilot is
compulsory, if his negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the owners are
liable. 92 But the liability of the ship in rem does not release the pilot from the
consequences of his own negligence. 93 The rationale for this rule is that the
master is not entirely absolved of responsibility with respect to navigation when
a compulsory pilot is in charge. 94
By way of validation and in light of the aforecited guidepost rulings in American
maritime cases, we declare that our rulings during the early years of this century
in City of Manila vs. Gambe, 95 China Navigation Co., Ltd. vs. Vidal,96 and Yap
Tica & Co. vs. Anderson, et al. 97 have withstood the proverbial test of time and
remain good and relevant case law to this day.
City of Manila stands for the doctrine that the pilot who was in command and
complete control of a vessel, and not the owners, must be held responsible for
an accident which was solely the result of the mistake of the pilot in not giving
proper orders, and which did not result from the failure of the owners to equip
the vessel with the most modern and improved machinery. In China Navigation
Co., the pilot deviated from the ordinary and safe course, without heeding the
warnings of the ship captain. It was this careless deviation that caused the
vessel to collide with a pinnacle rock which, though uncharted, was known to
pilots and local navigators. Obviously, the captain was blameless. It was the
negligence of the pilot alone which was the proximate cause of the collision. The
Court could not but then rule that
The pilot in the case at bar having deviated from the usual and
ordinary course followed by navigators in passing through the
strait in question, without a substantial reason, was guilty of
negligence, and that negligence having been the proximate
cause of the damages, he is liable for such damages as usually
and naturally flow therefrom. . . .

. . . (T)he defendant should have known of the existence and

location of the rock upon which the vessel struck while under his
control and management. . . . .
Consistent with the pronouncements in these two earlier cases, but on a slightly
different tack, the Court in Yap Tico & Co. exonerated the pilot from liability for
the accident where the orders of the pilot in the handling of the ship were
disregarded by the officers and crew of the ship. According to the Court, a pilot
is ". . . responsible for a full knowledge of the channel and the navigation only so
far as he can accomplish it through the officers and crew of the ship, and I don't
see chat he can be held responsible for damage when the evidence shows, as it
does in this case, that the officers and crew of the ship failed to obey his orders."
Nonetheless, it is possible for a compulsory pilot and the master of the vessel to
be concurrently negligent and thus share the blame for the resulting damage as
joint tortfeasors, 98 but only under the circumstances obtaining in and
demonstrated by the instant petitions.
It may be said, as a general rule, that negligence in order to render a person
liable need not be the sole cause of an injury. It is sufficient that his negligence,
concurring with one or more efficient causes other than piaintiff's, is the
proximate cause of the injury. Accordingly, where several causes combine to
produce injuries, a person is not relieved from liability because he is responsible
for only one of them, it being sufficient that the negligence of the person charged
with injury is an efficient cause without which the injury would not have resulted
to as great an extent, and that such cause is not attributable to the person
injured. It is no defense to one of the concurrent tortfeasors that the injury would
not have resulted from his negligence alone, without the negligence or wrongful
acts of the other concurrent rortfeasor. 99 Where several causes producing an
injury are concurrent and each is an efficient cause without which the injury
would not have happened, the injury may be attributed to all or any of the
causes and recovery may be had against any or all of the responsible persons
although under the circumstances of the case, it may appear that one of them
was more culpable, and that the duty owed by them to the injured person was
not the same. No actor's negligence ceases to be a proximate cause merely
because it does not exceed the negligence of other actors. Each wrongdoer is
responsible for the entire result and is liable as though his acts were the sole
cause of the injury. 100
There is no contribution between joint tortfeasors whose liability is solidary since
both of them are liable for the total damage. Where the concurrent or successive
negligent acts or omissions of two or more persons, although acting
independently, are in combination the direct and proximate cause of a single
injury to a third person, it is impossible to determine in what proportion each
contributed to the injury and either of them is responsible for the whole injury.
Where their concurring negligence resulted in injury or damage to a third party,
they become joint tortfeasors and are solidarily liable for the resulting damage
under Article 2194 101 of the Civil Code. 102

As for the amount of damages awarded by the trial court, we find the same to be
reasonable. The testimony of Mr. Pascual Barral, witness for PPA, on cross and
redirect examination, appears to be grounded on practical considerations:

A Yes sir.
Q May it not happen that by natural factors, the
existing damage in 1980 was aggravated for
the 2 year period that the damage portion was
not repaired?

Q So that the cost of the two additional piles as

well as the (two) square meters is already
included in this P1,300,999.77.

A I don't think so because that area was at once

marked and no vehicles can park, it was closed.

A Yes sir, everything. It is (the) final cost

already.

Q Even if or even natural elements cannot

affect the damage?

Q For the eight piles.

A Including the reduced areas and other
reductions.

A Cannot, sir.
xxx xxx xxx

Q (A)nd the two square meters.

A Yes sir.
Q In other words, this P1,300,999.77 does not
represent only for the six piles that was
damaged as well as the corresponding two
piles.
A The area was corresponding, was increased
by almost two in the actual payment. That was
why the contract was decreased, the real
amount was P1,124,627.40 and the final one is
P1,300,999.77.
Q Yes, but that P1,300,999.77 included the
additional two new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It
took place in 1980 and you started the repair
and reconstruction in 1982, that took almost two
years?

Q You said in the cross-examination that there

were six piles damaged by the accident, but
that in the reconstruction of the pier, PPA drove
and constructed 8 piles. Will you explain to us
why there was change in the number of piles
from the original number?
A In piers where the piles are withdrawn or
pulled out, you cannot re-drive or drive piles at
the same point. You have to redesign the
driving of the piles. We cannot drive the piles at
the same point where the piles are broken or
damaged or pulled out. We have to redesign,
and you will note that in the reconstruction, we
redesigned such that it necessitated 8 plies.
Q Why not, why could you not drive the same
number of piles and on the same spot?
A The original location was already disturbed.
We cannot get required bearing capacity. The
area is already disturbed.
Q Nonetheless, if you drove the original number
of piles, six, on different places, would not that
have sustained the same load?
A It will not suffice, sir. 103

We quote the findings of the lower court with approval.

With regards to the amount of damages that is to be awarded to
plaintiff, the Court finds that the amount of P1,053,300.00 is
justified. Firstly, the doctrine of res ipsa loquitur best expounded
upon in the landmark case of Republic vs. Luzon Stevedoring
Corp. (21 SCRA 279) establishes the presumption that in the
ordinary course of events the ramming of the dock would not
have occurred if proper care was used.
Secondly, the various estimates and plans justify the cost of the
port construction price. The new structure constructed not only
replaced the damaged one but was built of stronger materials to
forestall the possibility of any similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an award
of P1,053,300.00 which represents actual damages caused by
the damage to Berth 4 of the Manila International Port. Codefendants Far Eastern Shipping, Capt. Senen Gavino and
Manila Pilots Association are solidariiy liable to pay this amount
to plaintiff. 104
The Solicitor General rightly commented that the adjudicated amount of
damages represents the proportional cost of repair and rehabilitation of
the damaged section of the pier. 105
Except insofar as their liability is limited or exempted by statute, the vessel or
her owners are liable for all damages caused by the negligence or other wrongs
of the owners or those in charge of the vessel. As a general rule, the owners or
those in possession and control of a vessel and the vessel are liable for all
natural and proximate damages caused to persons or property by reason of her
negligent management or navigation. 106
FESC's imputation of PPA's failure to provide a safe and reliable berthing place
is obtuse, not only because it appears to be a mere afterthought, being tardily
raised only in this petition, but also because there is no allegation or evidence
on record about Berth No. 4 being unsafe and unreliable, although perhaps it is
a modest pier by international standards. There was, therefore, no error on the
part of the Court of Appeals in dismissing FESC's counterclaim.

Administrative Order No. 15-65, as basis for the adjudged solidary liability of
MPA and Capt. Gavino.
The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65
are:
PAR. XXVII. In all pilotage districts where pilotage is
compulsory, there shall be created and maintained by the pilots
or pilots' association, in the manner hereinafter prescribed, a
reserve fund equal to P1,000.00 for each pilot thereof for the
purpose of paying claims for damages to vessels or property
caused through acts or omissions of its members while
rendered in compulsory pilotage service. In Manila, the reserve
fund shall be P2,000.00 for each pilot.
PAR. XXVIII. A pilots' association shall not be liable under
these regulations for damage to any vessel, or other property,
resulting from acts of a member of an association in the actual
performance of his duty for a greater amount than seventy-five
per centum (75%) of its prescribed reserve fund; it being
understood that if the association is held liable for an amount
greater than the amount above-stated, the excess shall be paid
by the personal funds of the member concerned.
PAR. XXXI. If a payment is made from the reserve fund of an
association on account of damages caused by a member
thereof, and he shall have been found at fault, such member
shall reimburse the association in the amount so paid as soon
as practicable; and for this purpose, not less than twenty-five
per centum of his dividends shall be retained each month until
the full amount has been returned to the reserve fund.
PAR. XXXIV. Nothing in these regulations shall relieve any
pilots' association or members thereof, individually or
collectively, from civil responsibility for damages to life or
property resulting from the acts of members in the performance
of their duties.
Correlatively, the relevant provisions of PPA Administrative Order No. 03-85,
which timery amended this applicable maritime regulation, state:

II. G.R. No. 130150

Art. IV
This consolidated case treats on whether the Court of Appeals erred in holding
MPA jointly and solidarily liable with its member pilot. Capt. Gavino, in the
absence of employer-employee relationship and in applying Customs

Sec. 17. Pilots' Association The Pilots in a Pilotage District

shall organize themselves into a Pilots' Association or firm, the
members of which shall promulgate their own By-Laws not in

conflict with the rules and regulations promulgated by the

Authority. These By-Laws shall be submitted not later than one
(1) month after the organization of the Pilots' Association for
approval by the General Manager of the Authority. Subsequent
amendments thereto shall likewise be submitted for approval.
Sec. 25. Indemnity Insurance and Reserve Fund
a) Each Pilots' Association shall
collectively
insure
its
membership at the rate of
P50,000.00 each member to
cover in whole or in part any
liability arising from any
accident resulting in damage to
vessel(s), port facilities and
other properties and/or injury to
persons or death which any
member may have caused in
the course of his performance
of pilotage duties. . . . .
b) The Pilotage Association
shall likewise set up and
maintain a reserve fund which
shall answer for any part of the
liability referred to in the
immediately
preceding
paragraph
which
is
left
unsatisfied by the insurance
proceeds, in the following
manner:
1) Each pilot in the
Association
shall
contribute from his own
account an amount of
P4,000.00 (P6,000.00
in the Manila Pilotage
District) to the reserve
fund. This fund shall
not be considered part
of the capital of the
Association
nor
charged as an expense
thereof.

2) Seventy-five percent
(75 %) of the reserve
fund shall be set aside
for use in the payment
of damages referred to
above incurred in the
actual performance of
pilots' duties and the
excess shall be paid
from
the
personal
funds of the member
concerned.
xxx xxx xxx
5) If payment is made
from the reserve fund
of an Association on
account of damage
caused by a member
thereof who is found at
fault,
he
shall
reimburse
the
Association
in
the
amount so paid as
soon as practicable;
and for this purpose,
not less than twentyfive percentum (25 %)
of his dividend shall be
retained each month
until the full amount
has been returned to
the
reserve
fund.
Thereafter, the pilot
involved
shall
be
entitled to his full
dividend.
6)
When
the
reimbursement
has
been completed as
prescribed
in
the
preceding paragraph,
the ten percentum
(10%) and the interest
withheld
from
the

shares of the other

pilots in accordance
with paragraph (4)
hereof
shall
be
returned to them.
c)
Liability
of
Pilots'
Association Nothing in these
regulations shall relieve any
Pilots' Association or members
thereof,
individually
or
collectively, from any civil,
administrative and/or criminal
responsibility for damages to
life or property resulting from
the individual acts of its
members as well as those of
the Association's employees
and crew in the performance of
their duties.
The Court of Appeals, while affirming the trial court's finding of solidary liability
on the part of FESC, MPA and Capt. Gavino, correctly based MPA' s liability not
on the concept of employer-employee relationship between Capt. Gavino and
itself, but on the provisions of Customs Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and
disquisitions of the Court a quo, the Appellant Gavino was not
and has never been an employee of the MPA but was only a
member thereof. The Court a quo, it is noteworthy, did not state
the factual basis on which it anchored its finding that Gavino
was the employee of MPA. We are in accord with MPA's pose.
Case law teaches Us that, for an employer-employee
relationship to exist, the confluence of the following elements
must be established: (1) selection and engagement of
employees; (2) the payment of wages; (3) the power of
dismissal; (4) the employer's power to control the employees
with respect to the means and method by which the work is to
be performed (Ruga versus NLRC, 181 SCRA 266).

There being no employer-employee relationship, clearly Article 2180 108 of the

Civil Code is inapplicable since there is no vicarious liability of an employer to
speak of. It is so stated in American law, as follows:
The well established rule is that pilot associations are immune
to vicarious liability for the tort of their members. They are not
the employer of their members and exercise no control over
them once they take the helm of the vessel. They are also not
partnerships because the members do not function as agents
for the association or for each other. Pilots' associations are
also not liable for negligently assuring the competence of their
members because as professional associations they made no
guarantee of the professional conduct of their members to the
general public. 109
Where under local statutes and regulations, pilot associations lack the
necessary legal incidents of responsibility, they have been held not liable for
damages caused by the default of a member pilot. 110 Whether or not the
members of a pilots' association are in legal effect a copartnership depends
wholly on the powers and duties of the members in relation to one another under
the provisions of the governing statutes and regulations. The relation of a pilot to
his association is not that of a servant to the master, but of an associate
assisting and participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual member depend largely
upon the constitution, articles or by-laws of the association, subject to
appropriate government regulations. 111
No reliance can be placed by MPA on the cited American rulings as to immunity
from liability of a pilots' association in ljght of existing positive regulation under
Philippine law. The Court of Appeals properly applied the clear and unequivocal
provisions of Customs Administrative Order No. 15-65. In doing so, it was just
being consistent with its finding of the non-existence of employer-employee
relationship between MPA and Capt. Gavino which precludes the application of
Article 2180 of the Civil Code.
True. Customs Administrative Order No. 15-65 does not categorically
characterize or label MPA's liability as solidary in nature. Nevertheless, a careful
reading and proper analysis of the correlated provisions lead to the conclusion
that MPA is solidarily liable for the negligence of its member pilots, without
prejudice to subsequent reimbursement from the pilot at fault.

xxx xxx xxx

The liability of MPA for damages is not anchored on Article 2180
of the New Civil Code as erroneously found and declared by the
Court a quo but under the provisions of Customs Administrative
Order No. 15-65, supra, in tandem with the by-laws of the
MPA. 107

Art. 1207 of the Civil Code provides that there is solidary liability only when the
obligation expressly so states, or when the law or the nature of the obligation
requires solidarity. Plainly, Customs Administrative Order No. 15-65, which as an
implementing rule has the force and effect of law, can validly provide for solidary
liability.We note the Solicitor General's comment hereon, to wit:

. . . Customs Administrative Order No. 15-65 may be a mere

rule and regulation issued by an administrative agency pursuant
to a delegated authority to fix "the details" in the execution or
enforcement of a policy set out in the law itself. Nonetheless,
said administrative order, which adds to the procedural or
enforcing provisions of substantive law, is legally binding and
receives the same statutory force upon going into effect. In that
sense, it has equal, not lower, statutory force and effect as a
regular statute passed by the legislature. 112
MPA's prayer for modification of the appellate court's decision under review by
exculpating petitioner MPA "from liability beyond seventy-five percent (75 %) of
Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of
Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent
(75 %) of its prescribed reserve fund, any amount of liability beyond that being
for the personal account of the erring pilot and subject to reimbursement in case
of a finding of fault by the member concerned. This is clarified by the Solicitor
General:
Moreover, contrary to petitioner's pretensions, the provisions of
Customs Administrative Order No. 15-65 do not limit the liability
of petitioner as a pilots' association to an absurdly small amount
of seventy-five per centum (75 %) of the member pilots'
contribution of P2,000.00 to the reserve fund. The law speaks of
the entire reserve fund required to be maintained by the pilots'
association to answer (for) whatever liability arising from the
tortious act of its members. And even if the association is held
liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be liable
only up to seventy-five per centum (75 %) of the reserve fund
because in such instance it has the right to be reimbursed by
the offending member pilot for the excess. 113
WHEREFORE, in view of all of the foregoing, the consolidated petitions for
review are DENIED and the assailed decision of the Court of Appeals is
AFFIRMED in toto.
Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its
associate, Atty. Herbert A. Tria, is REPRIMANDED and WARNED that a
repetition of the same or similar acts of heedless disregard of its undertakings
under the Rules shall be dealt with more severely.
The original members of the legal team of the Office of the Solicitor General
assigned to this case, namely, Assistant Solicitor General Roman G. Del Rosario
and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition
of the same or similar acts of unduly delaying proceedings due to delayed filing
of required pleadings shall also be dealt with more stringently.

The Solicitor Genral is DIRECTED to look into the circumstances of this case
and to adopt provident measures to avoid a repetition of this incident and which
would ensure prompt compliance with orders of this Court regarding the timely
filing of requisite pleadings, in the interest of just, speedy and orderly
administration of justice.
Let copies of this decision be spread upon the personal records of the lawyers
named herein in the Office of the Bar Confidant.
SO ORDERED.

G.R. No. L-15674

October 17, 1921

CONSOLACION GABETO, in her own right and as guardian ad litem of her

three children, plaintiff-appellee,
vs.
AGATON ARANETA, defendant-appellant.
Jose E. Locsin for appellant.
Block, Johnston and Greenbaum for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Iloilo by Consolacion
Gabeto, in her own right as widow of Proceso Gayetano, and as guardian ad
litem of the three children, Conchita Gayetano, Rosita Gayetano, and Fermin
Gayetano, for the purpose of recovering damages incurred by the plaintiff as a
result of the death of the said Proceso Gayetano, supposedly cause by the

wrongful act of the defendant Agaton Araneta. Upon hearing the evidence, his
Honor, Judge L. M. Southworth, awarded damages to the plaintiff in the amount
of P3,000, from which judgment the defendant appealed.
It appears in evidence that on August 4, 1918. Basilio Ilano and Proceso
Gayetano took a carromata near Plaza Gay, in the City of Iloilo, with a view to
going to a cockpit on Calle Ledesma in the same City. When the driver of the
carromata had turned his horse and started in the direction indicated, the
defendant, Agaton Araneta, stepped out into the street, and laying his hands on
the reins, stopped the horse, at the same time protesting to the driver that he
himself had called this carromata first. The driver, one Julio Pagnaya, replied to
the effect that he had not heard or seen the call of Araneta, and that he had
taken up the two passengers then in the carromata as the first who had offered
employment. At or about the same time Pagnaya pulled on the reins of the bridle
to free the horse from the control of Agaton Araneta, in order that the vehicle
might pass on. Owing, however, to the looseness of the bridle on the horse's
head or to the rottenness of the material of which it was made, the bit came out
of the horse's mouth; and it became necessary for the driver to get out, which he
did, in order to find the bridle. The horse was then pulled over to near the curb,
by one or the other it makes no difference which and Pagnaya tried to fix
the bridle.
While he was thus engaged, the horse, being free from the control of the bit,
became disturbed and moved forward, in doing which he pulled one of the
wheels of the carromata up on the sidewalk and pushed Julio Pagnaya over.
After going a few years further the side of the carromata struck a police
telephone box which was fixed to a post on the sidewalk, upon which the box
came down with a crash and frightened the horse to such an extent that he set
out at full speed up the street.
Meanwhile one of the passengers, to wit. Basilio Ilano, had alighted while the
carromata was as yet alongside the sidewalk; but the other, Proceso Gayetano,
had unfortunately retained his seat, and after the runaway horse had proceeded
up the street to a point in front of the Mission Hospital, the said Gayetano
jumped or fell from the rig, and in so doing received injuries from which he soon
died.
As to the facts above stated the evidence cannot be said to be materially in
conflict; but there is decided conflict upon the point of the exact relation of the
defendant Agaton Araneta, to the runaway. The evidence for the plaintiff on this
point consists chiefly of the testimony of Julio Pagnaya and of Basilio Ilano.
They both say that while yet in the middle of the street, the defendant jerked the
bridle, which caused the bit to come out of the horse's mouth, and Julio says
that at that juncture the throat latch of the bridle was broken. Be this as it may,
we are of the opinion that the mere fact that the defendant interfered with the
carromata by stopping the horse in the manner stated would not make him liable
for the death of Proceso Gayetano; because it is admitted by Julio Pagnaya that

he afterwards got out of the carromata and went to the horse's head to fix the
bridle. The evidence is furthermore convincing to the effect that, after Julio
Pagnaya alighted, the horse was conducted to the curb and that an appreciable
interval of time elapsed same witnesses say several minutes before the
horse started on his career up the street. 1awph!l.net
It is therefore evident that the stopping of the rig by Agaton Araneta in the middle
of the street was too remote from the accident that presently ensued to be
considered the legal or proximate cause thereof. Moreover, by getting out and
taking his post at the head of the horse, the driver was the person primarily
responsible for the control of the animal, and the defendant cannot be charged
with liability for the accident resulting from the action of the horse thereafter.
Julio Pagnaya testifies to one fact which, if it were fully accredited, would
possibly put a different complexion on the case; for he says that when the horse
was pulled over to the curb, the defendant, by way of emphasizing his verbal
denunciation of Pagnaya, gesticulated with one of his arms and incidentally
brought his hand down on the horse's nose. This, according to Pagnaya, is what
made the horse run away. There is no other witness who testifies to this; and it is
noteworthy that Basilio Ilano does not mention it. A decided preponderance of
the evidence in our opinion is against it.
The evidence indicates that the bridle was old, and the leather of which it was
made was probably so weak as to be easily broken. Julio Pagnaya had a natural
interest in refuting this fact, as well as in exculpating himself in other respects;
and we are of the opinion that the several witnesses who testified for the
defendant gave a more credible account of the affair than the witnesses for the
plaintiff. According to the witnesses for the defendant, it was Julio who jerked the
rein, thereby causing the bit it come out of the horse's mouth; and they say that
Julio, after alighting, led the horse over to the curb, and proceeded to fix the
bridle; and that in so doing the bridle was slipped entirely off, when the horse,
feeling himself free from control, started to go away as previously stated.
Upon the whole we are constrained to hold that the defendant is not legally
responsible for the death of Proceso Gayetano; and though reluctant to interfere
with the findings of fact of a trial court when there is a conflict of testimony, the
evidence in this case so clearly preponderates in favor of the defendant, that we
have no recourse but to reverse the judgment.
The judgment will therefore be reversed, and the defendant will be absolved
from the complaint; and it is so ordered, without express finding as to costs of
either instance. So ordered.

G.R. No. L-8328

May 18, 1956

MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in

his own behalf and as guardian of the minors MANUEL, BENJAMIN,
NESTOR, MILAGROS, CORAZON, CLEMENTE and AURORA, all surnamed
MAGNO, SALUD MAGNO, and the COURT OF APPEALS (Second
Division), Respondents.
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio
Pealoza, his stepbrother, located on Rodriguez Lanuza Street, Manila, to repair
a media agua said to be in a leaking condition. The media agua was just
below the window of the third story. Standing on said media agua, Magno
received from his son thru that window a 3 X 6 galvanized iron sheet to cover
the leaking portion, turned around and in doing so the lower end of the iron
sheet came into contact with the electric wire of the Manila Electric Company

(later referred to as the Company) strung parallel to the edge of the media
agua and 2 1/2 feet from it, causing his death by electrocution. His widow and
children fled suit to recover damages from the company. After hearing, the trial
court rendered judgment in their favor P10,000 as compensatory damages;
as actual damages; P2,000 as moral and exemplary damages; and P3,000 as
attorneys fees, with costs. On appeal to the Court of Appeals, the latter affirmed
the judgment with slight modification by reducing the attorneys fees from
P3,000 to P1,000 with costs. The electric company has appealed said decision
to us.
The findings of fact made by the Court of Appeals which are conclusive are
stated in the following portions of its decision which we reproduce below:
The electric wire in question was an exposed, uninsulated primary wire
stretched between poles on the street and carrying a charge of 3,600 volts. It
was installed there some two years before Pealozas house was constructed.
The record shows that during the construction of said house a similar incident
took place, although fortunate]y with much less tragic consequences. A piece of
wood which a carpenter was holding happened to come in contact with the
same wire, producing some sparks. The owner of the house forthwith
complained to Defendant about the danger which the wire presented, and as a
result Defendant moved one end of the wire farther from the house by means of
a brace, but left the other end where it was.
At any rate, as revealed by the ocular inspection of the premises ordered by the
trial court, the distance from the electric wire to the edge of the media agua on
which the deceased was making repairs was only 30 inches or 2 1/2 feet.
Regulations of the City of Manila required that all wires be kept three feet from
the building. Appellant contends that in applying said regulations to the case at
bar the reckoning should not be from the edge of the media agua but from the
side of the house and that, thus measured, the distance was almost 7 feet, or
more then the minimum prescribed. This contention is manifestly groundless, for
not only is a media agua an integral part of the building to which it is attached
but to exclude it in measuring the distance would defeat the purpose of the
regulation. Appellant points out, nevertheless, that even assuming that the
distance, within the meaning of the city regulations, should be measured from
the edge of the media agua, the fact that in the case of the house involved
herein such distance was actually less than 3 feet was due to the fault of the
owner of said house, because the city authorities gave him a permit to construct
a media agua only one meter or 39 1/2 inches wide, but instead he built one
having a width of 65 3/4 inches, 17 3/8 inches more than the width permitted by
the authorities, thereby reducing the distance to the electric wire to less than the
prescribed minimum of 3 feet.
It is a fact that the owner of the house exceeded the limit fixed in the permit
given to him by the city authorities for the construction of the media agua, and
that if he had not done so Appellantswire would have been 11 3/8 (inches) more
than the required distance of three feet from the edge of the media agua. It is
also a fact, however, that after the media agua was constructed the owner was
given a final permit of occupancy of the house.

The wire was an exposed, high tension wire carrying a load of 3,600 volts.
There was, according to Appellant, no insulation that could have rendered it
safe, first, because there is no insulation material in commercial use for such
kind of wire; chan roblesvirtualawlibraryand secondly, because the only
insulation material that may be effective is still in the experimental stage of
development and, anyway, its costs would be prohibitive
The theory followed by the appellate court in finding for the Plaintiff is that
although the owner of the house in constructing the media agua in question
exceeded the limits fixed in the permit, still, after making that media agua, its
construction though illegal, was finally approved because he was given a final
permit to occupy the house; chan roblesvirtualawlibrarythat it was the company
that was at fault and was guilty of negligence because although the electric wire
in question had been installed long before the construction of the house and in
accordance with the ordinance fixing a minimum of 3 feet, mere compliance with
the regulations does not satisfy the requirement of due diligence nor avoid the
need for adopting such other precautionary measures as may be
warranted; chan roblesvirtualawlibrarythat negligence cannot be determined by
a simple matter of inches; that all that the city did was to prescribe certain
minimum conditions and that just because the ordinance required that primary
electric wires should be not less than 3 feet from any house, the obligation of
due diligence is not fulfilled by placing such wires at a distance of 3 feet and one
inch, regardless of other factors. The appellate court, however, refrained from
stating or suggesting what other precautionary measures could and should have
been adopted.
After a careful study and discussion of the case and the circumstances
surrounding the same, we are inclined to agree to the contention
of Petitioner Company that the death of Magno was primarily caused by his own
negligence and in some measure by the too close proximity of the media agua
or rather its edge to the electric wire of the company by reason of the violation of
the original permit given by the city and the subsequent approval of said illegal
construction of the media agua. We fail to see how the Company could be held
guilty of negligence or as lacking in due diligence. Although the city ordinance
called for a distance of 3 feet of its wires from any building, there was actually a
distance of 7 feet and 2 3/4 inches of the wires from the side of the house of
Pealoza. Even considering said regulation distance of 3 feet as referring not to
the side of a building, but to any projecting part thereof, such as a media agua,
had the house owner followed the terms of the permit given him by the city for
the construction of his media agua, namely, one meter or 39 3/8 inches wide,
the distance from the wires to the edge of said media agua would have been 3
feet and 11 3/8 inches. In fixing said one meter width for the media agua the
city authorities must have wanted to preserve the distance of at least 3 feet
between the wires and any portion of a building. Unfortunately, however, the
house owner disregarding the permit, exceeded the one meter fixed by the
same by 17 3/8 inches and leaving only a distance of 2 1/2 feet between the
Media agua as illegally constructed and the electric wires. And added to this
violation of the permit by the house owner, was its approval by the city through
its agent, possibly an inspector. Surely we cannot lay these serious violations of

a city ordinance and permit at the door of the Company, guiltless of breach of
any ordinance or regulation. The Company cannot be expected to be always on
the lookout for any illegal construction which reduces the distance between its
wires and said construction, and after finding that said distance of 3 feet had
been reduced, to change the stringing or installation of its wires so as to
preserve said distance. It would be much easier for the City, or rather it is its
duty, to be ever on the alert and to see to it that its ordinances are strictly
followed by house owners and to condemn or disapprove all illegal
constructions. Of course, in the present case, the violation of the permit for the
construction of the media agua was not the direct cause of the accident. It
merely contributed to it. Had said media agua been only one meter wide as
allowed by the permit, Magno standing on it, would instinctively have stayed
closer to or hugged the side of the house in order to keep a safe margin
between the edge of the media agua and the yawning 2-story distance or
height from the ground, and possibly if not probably avoided the fatal contact
between the lower end of the iron sheet and the wires.

touch them. A boy named Astudillo, placing one foot on a projection, reached out
and actually grasped the electric wire and was electrocuted. The person
electrocuted in said case was a boy who was in no position to realize the
danger. In the present case, however, the wires were well high over the street
where there was no possible danger to pedestrians. The only possible danger
was to persons standing on the media agua, but a media agua can hardly be
considered a public place where persons usually gather. Moreover, a person
standing on the media agua could not have reached the wires with his hands
alone. It was necessary as was done by Magno to hold something long enough
to reach the wire. Furthermore, Magno was not a boy or a person immature but
the father of a family, supposedly a tinsmith trained and experienced in the
repair of galvanized iron roofs and media agua. Moreover, in that very case of
Astudillo vs. Manila Electric Co., supra, the court said that although it is a wellestablished rule that the liability of electric companies for damages or personal
injuries is governed by the rules of negligence, nevertheless such companies
are not insurers of the safety of the public.

We realize that the presence of the wires in question quite close to the house or
its media agua was always a source of danger considering their high voltage
and uninsulated as they were, but the claim of the company and the reasons
given by it for not insulating said wires were unrefuted as we gather from the
findings of the Court of Appeals, and so we have to accept them as satisfactory.
Consequently, we may not hold said company as guilty of negligence or wanting
in due diligence in failing to insulate said wires. As to their proximity to the house
it is to be supposed that distance of 3 feet was considered sufficiently safe by
the technical men of the city such as its electrician or engineer. Of course, a
greater distance of say 6 feet or 12 feet would have increased the margin of
safety but other factors had to be considered such as that the wires could not be
strung or the posts supporting them could not be located too far toward the
middle of the street. Thus, the real cause of the accident or death was the
reckless or negligent act of Magno himself. When he was called by his
stepbrother to repair the media agua just below the third story window, it is to
be presumed that due to his age and experience he was qualified to do so.
Perhaps he was a tinsmith or carpenter and had training and experience for the
job. So, he could not have been entirely a stranger to electric wires and the
danger lurking in them. But unfortunately, in the instant care, his training and
experience failed him, and forgetting where he was standing, holding the 6-feet
iron sheet with both hands and at arms length, evidently without looking, and
throwing all prudence and discretion to the winds, he turned around swinging his
arms with the motion of his body, thereby causing his own electrocution.

But even assuming for a moment that under the facts of the present case
the Defendant electric company could be considered negligent in installing its
electric wires so close to the house and media agua in question, and in failing
to properly insulate those wires (although according to the unrefuted claim of
said company it was impossible to make the insulation of that kind of wire),
nevertheless to hold the Defendant liable in damages for the death of Magno,
such supposed negligence of the company must have been the proximate and
principal cause of the accident, because if the act of Magno in turning around
and swinging the galvanized iron sheet with his hands was the proximate and
principal cause of the electrocution, then his heirs may not recover. Such was
the holding of this Court in the case of Taylor vs. Manila Electric Railroad and
Light Company, 16 Phil., 8. In that case, the electric company was found
negligent in leaving scattered on its premises fulminating caps which Taylor, a
15- year old boy found and carried home. In the course of experimenting with
said fulminating caps, he opened one of them, held it out with his hands while
another boy applied a lighted match to it, causing it to explode and injure one of
his eyes eventually causing blindness in said eye. Said this Tribunal in denying
recovery for the injury:

In support of its theory and holding that Defendant-Appellant was liable for
damages the Court of Appeals cites the case of Astudillo vs. Manila Electric Co.,
55 Phil., 427. We do not think the case is exactly applicable. There, the
premises involved was that elevated portion or top of the walls of Intramuros,
Manila, just above the Sta. Lucia Gate. In the words of the Court, it was a public
place where persons come to stroll, to rest and to enjoy themselves. The
electric company was clearly negligent in placing its wires so near the place that
without much difficulty or exertion, a person by stretching his hand out could

cralaw, so that while it may be true that these injuries would not have been
incurred but for the negligent act of the Defendant in leaving the caps exposed
on its premises, neverthelessPlaintiffs own act was the proximate and principal
cause of the accident which inflicted the injury.
To us it is clear that the principal and proximate cause of the electrocution was
not the electric wire, evidently a remote cause, but rather the reckless and
negligent act of Magno in turning around and swinging the galvanized iron sheet
without taking any precaution, such as looking back toward the street and at the
wire to avoid its contacting said iron sheet, considering the latters length of 6
feet. For a better understanding of the rule on remote and proximate cause with
respect to injuries, we find the following citation helpful:

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. pp. 931332.).
We realize that the stringing of wires of such high voltage (3,600 volts),
uninsulated and so close to houses is a constant source of danger, even death,
especially to persons who having occasion to be near said wires, do not adopt
the necessary precautions. But may be, the City of Manila authorities and the
electric company could get together and devise means of minimizing this danger
to the public. Just as the establishment of pedestrian lanes in city thoroughfares
may greatly minimize danger to pedestrians because drivers of motor vehicles
may expect danger and slow down or even stop and take other necessary
precaution upon approaching said lanes, so, a similar way may possibly be
found. Since these high voltage wires cannot be properly insulated and at
reasonable cost, they might perhaps be strung only up to the outskirts of the city
where there are few houses and few pedestrians and there step-down to a
voltage where the wires carrying the same to the city could be properly insulated
for the better protection of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is
hereby reversed and the complaint filed against the Company is hereby
dismissed. No costs.

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 defendant-third 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 motion for reconsideration was filed by
private respondents;
(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 plaintiff-husband 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.

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.
SO ORDERED.

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 non-submission 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

G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the

HEIRS OF DOMINGA ONG,petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of
Appeals, which affirmed that of the Court of First Instance of Manila dismissing
petitioners' second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It
appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex
service station at the corner of Antipolo street and Rizal Avenue, Manila. It
started while gasoline was being hosed from a tank truck into the underground
storage, right at the opening of the receiving tank where the nozzle of the hose
was inserted. The fire spread to and burned several neighboring houses,
including the personal properties and effects inside them. Their owners, among
them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren,
the first as alleged owner of the station and the second as its agent in charge of
operation. Negligence on the part of both of them was attributed as the cause of
the fire.
The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and
with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on the
fire prepared by the Manila Police and Fire Departments and by a certain
Captain Tinio of the Armed Forces of the Philippines. Portions of the first two
reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948,
while Leandro Flores was transferring gasoline from a tank
truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and
Antipolo Street, this City, an unknown Filipino lighted a cigarette
and threw the burning match stick near the main valve of the
said underground tank. Due to the gasoline fumes, fire suddenly
blazed. Quick action of Leandro Flores in pulling off the gasoline
hose connecting the truck with the underground tank prevented
a terrific explosion. However, the flames scattered due to the
hose from which the gasoline was spouting. It burned the truck
and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic) subleased
for the installation of a coca-cola and cigarette stand, the complainants

furnished this Office a copy of a photograph taken during the fire and
which is submitted herewith. it appears in this picture that there are in
the premises a coca-cola cooler and a rack which according to
information gathered in the neighborhood contained cigarettes and
matches, installed between the gasoline pumps and the underground
tanks.
The report of Captain Tinio reproduced information given by a certain Benito
Morales regarding the history of the gasoline station and what the chief of the
fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of
Appeals and hence inadmissible. This ruling is now assigned as error. It is
contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly
"for Salvador Capacillo," the latter was presented as witness but respondents
waived their right to cross-examine him although they had the opportunity to do
so; and thirdly, that in any event the said reports are admissible as an exception
to the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing
of September 17, 1953 (pp. 167-170) shows that the reports in question, when
offered as evidence, were objected to by counsel for each of respondents on the
ground that they were hearsay and that they were "irrelevant, immaterial and
impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6
were admitted without objection; the admission of the others, including the
disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the witness stand, he
was not examined and he did not testify as to the facts mentioned in his alleged
report (signed by Detective Zapanta). All he said was that he was one of those
who investigated "the location of the fire and, if possible, gather witnesses as to
the occurrence, and that he brought the report with him. There was nothing,
therefore, on which he need be cross-examined; and the contents of the report,
as to which he did not testify, did not thereby become competent evidence. And
even if he had testified, his testimony would still have been objectionable as far
as information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without
further testimonial evidence on their contents, fall within the scope of section 35,
Rule 123, which provides that "entries in official records made in the
performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law, are prima facie evidence of
the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that
the entry was made by a public officer, or by another person specially enjoined
by law to do so; (b) that it was made by the public officer in the performance of
his duties, or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person had sufficient
knowledge of the facts by him stated, which must have been acquired by him
personally or through official information (Moran, Comments on the Rules of
Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and
circumstances of the fire were not within the personal knowledge of the officers
who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources
thereof are not even identified. Others are attributed to Leopoldo Medina,
referred to as an employee at the gas station were the fire occurred; to Leandro
Flores, driver of the tank truck from which gasoline was being transferred at the
time to the underground tank of the station; and to respondent Mateo Boquiren,
who could not, according to Exhibit V-Africa, give any reason as to the origin of
the fire. To qualify their statements as "official information" acquired by the
officers who prepared the reports, the persons who made the statements not
only must have personal knowledge of the facts stated but must have the duty to
give such statements for record.1
The reports in question do not constitute an exception to the hearsay rule; the
facts stated therein were not acquired by the reporting officers through official
information, not having been given by the informants pursuant to any duty to do
so.
The next question is whether or not, without proof as to the cause and origin of
the fire, the doctrine of res ipsa loquitur should apply so as to presume
negligence on the part of appellees. Both the trial court and the appellate court
refused to apply the doctrine in the instant case on the grounds that "as to (its)
applicability ... in the Philippines, there seems to he nothing definite," and that
while the rules do not prohibit its adoption in appropriate cases, "in the case at
bar, however, we find no practical use for such doctrine." The question deserves
more than such summary dismissal. The doctrine has actually been applied in
this jurisdiction, in the case of Espiritu vs. Philippine Power and Development
Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the
Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other
companions were loading grass between the municipalities of Bay and
Calauan, in the province of Laguna, with clear weather and without any

wind blowing, an electric transmission wire, installed and maintained by

the defendant Philippine Power and Development Co., Inc. alongside
the road, suddenly parted, and one of the broken ends hit the head of
the plaintiff as he was about to board the truck. As a result, plaintiff
received the full shock of 4,400 volts carried by the wire and was
knocked unconscious to the ground. The electric charge coursed
through his body and caused extensive and serious multiple burns from
skull to legs, leaving the bone exposed in some parts and causing
intense pain and wounds that were not completely healed when the
case was tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had
failed to show any specific act of negligence, but the appellate court overruled
the defense under the doctrine of res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's evidence to
place appellant on its defense. While it is the rule, as contended by the
appellant, that in case of noncontractual negligence, or culpa aquiliana,
the burden of proof is on the plaintiff to establish that the proximate
cause of his injury was the negligence of the defendant, it is also a
recognized principal that "where the thing which caused injury, without
fault of the injured person, is under the exclusive control of the
defendant and the injury is such as in the ordinary course of things does
not occur if he having such control use proper care, it affords
reasonable evidence, in the absence of the explanation, that the injury
arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that he has
observed due care and diligence. (San Juan Light & Transit Co. v.
Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name
of res ipsa loquitur (the transaction speaks for itself), and is peculiarly
applicable to the case at bar, where it is unquestioned that the plaintiff
had every right to be on the highway, and the electric wire was under the
sole control of defendant company. In the ordinary course of events,
electric wires do not part suddenly in fair weather and injure people,
unless they are subjected to unusual strain and stress or there are
defects in their installation, maintenance and supervision; just as barrels
do not ordinarily roll out of the warehouse windows to injure passersby,
unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159
Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is
admittedly not present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its installation, care and
maintenance. Thereafter, as observed by Chief Baron Pollock, "if there
are any facts inconsistent with negligence, it is for the defendant to
prove."

It is true of course that decisions of the Court of Appeals do not lay down
doctrines binding on the Supreme Court, but we do not consider this a reason
for not applying the particular doctrine of res ipsa loquitur in the case at bar.
Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of man. A case
strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation,
et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which
in the year 1934 was leased to the Shell Petroleum Corporation for a
gasoline filling station. On October 8, 1934, during the term of the lease,
while gasoline was being transferred from the tank wagon, also
operated by the Shell Petroleum Corporation, to the underground tank
of the station, a fire started with resulting damages to the building
owned by Jones. Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation for the recovery
of that amount. The judge of the district court, after hearing the
testimony, concluded that plaintiff was entitled to a recovery and
rendered judgment in his favor for $427.82. The Court of Appeals for the
First Circuit reversed this judgment, on the ground the testimony failed
to show with reasonable certainty any negligence on the part of the
Shell Petroleum Corporation or any of its agents or employees. Plaintiff
applied to this Court for a Writ of Review which was granted, and the
case is now before us for decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence one
relating to the cause of the fire and the other relating to the spreading of
the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building
by the fire, no witnesses were placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire,
we find it established by the record that the filling station and the tank
truck were under the control of the defendant and operated by its agents
or employees. We further find from the uncontradicted testimony of
plaintiff's witnesses that fire started in the underground tank attached to
the filling station while it was being filled from the tank truck and while
both the tank and the truck were in charge of and being operated by the
agents or employees of the defendant, extended to the hose and tank
truck, and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of

defendant's failure to explain the cause of the fire or to show its lack of
knowledge of the cause, plaintiff has evoked the doctrine of res ipsa
loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to be
under the management of defendant or his servants and the accident is
such as in the ordinary course of things does not happen if those who
have its management or control use proper care, it affords reasonable
evidence, in absence of explanation by defendant, that the accident
arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved
and adopted by the courts of last resort. Some of the cases in this
jurisdiction in which the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake
Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am.
St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892;
Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here.
The gasoline station, with all its appliances, equipment and employees, was
under the control of appellees. A fire occurred therein and spread to and burned
the neighboring houses. The persons who knew or could have known how the
fire started were appellees and their employees, but they gave no explanation
thereof whatsoever. It is a fair and reasonable inference that the incident
happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police
Department (Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline
Station complained of occupies a lot approximately 10 m x 10 m at the
southwest corner of Rizal Avenue and Antipolo. The location is within a
very busy business district near the Obrero Market, a railroad crossing
and very thickly populated neighborhood where a great number of
people mill around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette cannot be
excluded and this constitute a secondary hazard to its operation which
in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the

concrete walls south and west adjoining the neighborhood are only 21/2 meters high at most and cannot avoid the flames from leaping over it
in case of fire.
Records show that there have been two cases of fire which caused not
only material damages but desperation and also panic in the
neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service
station is also used by its operator as a garage and repair shop for his
fleet of taxicabs numbering ten or more, adding another risk to the
possible outbreak of fire at this already small but crowded gasoline
station.
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal observation of the
facts reported, may properly be considered as an exception to the hearsay rule.
These facts, descriptive of the location and objective circumstances surrounding
the operation of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their face they called
for more stringent measures of caution than those which would satisfy the
standard of due diligence under ordinary circumstances. There is no more
eloquent demonstration of this than the statement of Leandro Flores before the
police investigator. Flores was the driver of the gasoline tank wagon who, alone
and without assistance, was transferring the contents thereof into the
underground storage when the fire broke out. He said: "Before loading the
underground tank there were no people, but while the loading was going on,
there were people who went to drink coca-cola (at the coca-cola stand) which is
about a meter from the hole leading to the underground tank." He added that
when the tank was almost filled he went to the tank truck to close the valve, and
while he had his back turned to the "manhole" he, heard someone shout "fire."

to be true certainly any unfavorable inference from the admission may be

taken against Boquiren it does not extenuate his negligence. A decision of the
Supreme Court of Texas, upon facts analogous to those of the present case,
states the rule which we find acceptable here. "It is the rule that those who
distribute a dangerous article or agent, owe a degree of protection to the public
proportionate to and commensurate with a danger involved ... we think it is the
generally accepted rule as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate to bring about harm to
another, the fact that the active and substantially simultaneous operation of the
effects of a third person's innocent, tortious or criminal act is also a substantial
factor in bringing about the harm, does not protect the actor from liability.'
(Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way,
"The intention of an unforeseen and unexpected cause, is not sufficient to
relieve a wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in the resulting
injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused
to appellants. This issue depends on whether Boquiren was an independent
contractor, as held by the Court of Appeals, or an agent of Caltex. This question,
in the light of the facts not controverted, is one of law and hence may be passed
upon by this Court. These facts are: (1) Boquiren made an admission that he
was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline
station and all the equipment therein; (3) Caltex exercised control over Boquiren
in the management of the state; (4) the delivery truck used in delivering gasoline
to the station had the name of CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex, which paid the license fees.
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit YAfrica).

Even then the fire possibly would not have spread to the neighboring houses
were it not for another negligent omission on the part of defendants, namely,
their failure to provide a concrete wall high enough to prevent the flames from
leaping over it. As it was the concrete wall was only 2-1/2 meters high, and
beyond that height it consisted merely of galvanized iron sheets, which would
predictably crumple and melt when subjected to intense heat. Defendants'
negligence, therefore, was not only with respect to the cause of the fire but also
with respect to the spread thereof to the neighboring houses.

In Boquiren's amended answer to the second amended complaint, he denied

that he directed one of his drivers to remove gasoline from the truck into the tank
and alleged that the "alleged driver, if one there was, was not in his employ, the
driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the
gasoline station." It is true that Boquiren later on amended his answer, and that
among the changes was one to the effect that he was not acting as agent of
Caltex. But then again, in his motion to dismiss appellants' second amended
complaint the ground alleged was that it stated no cause of action since under
the allegations thereof he was merely acting as agent of Caltex, such that he
could not have incurred personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the complaint.

There is an admission on the part of Boquiren in his amended answer to the

second amended complaint that "the fire was caused through the acts of a
stranger who, without authority, or permission of answering defendant, passed
through the gasoline station and negligently threw a lighted match in the
premises." No evidence on this point was adduced, but assuming the allegation

Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in question
was owned and operated by Boquiren. But Caltex did not present any contract
with Boquiren that would reveal the nature of their relationship at the time of the
fire. There must have been one in existence at that time. Instead, what was

presented was a license agreement manifestly tailored for purposes of this case,
since it was entered into shortly before the expiration of the one-year period it
was intended to operate. This so-called license agreement (Exhibit 5-Caltex)
was executed on November 29, 1948, but made effective as of January 1, 1948
so as to cover the date of the fire, namely, March 18, 1948. This retroactivity
provision is quite significant, and gives rise to the conclusion that it was
designed precisely to free Caltex from any responsibility with respect to the fire,
as shown by the clause that Caltex "shall not be liable for any injury to person or
property while in the property herein licensed, it being understood and agreed
that LICENSEE (Boquiren) is not an employee, representative or agent of
LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren would
pay Caltex the purely nominal sum of P1.00 for the use of the premises and all
the equipment therein. He could sell only Caltex Products. Maintenance of the
station and its equipment was subject to the approval, in other words control, of
Caltex. Boquiren could not assign or transfer his rights as licensee without the
consent of Caltex. The license agreement was supposed to be from January 1,
1948 to December 31, 1948, and thereafter until terminated by Caltex upon two
days prior written notice. Caltex could at any time cancel and terminate the
agreement in case Boquiren ceased to sell Caltex products, or did not conduct
the business with due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to Boquiren. These
provisions of the contract show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to
the company and the latter could remove him or terminate his services
at will; that the service station belonged to the company and bore its
tradename and the operator sold only the products of the company; that
the equipment used by the operator belonged to the company and were
just loaned to the operator and the company took charge of their repair
and maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's gasoline
and service station; that the price of the products sold by the operator
was fixed by the company and not by the operator; and that the receipts
signed by the operator indicated that he was a mere agent, the finding
of the Court of Appeals that the operator was an agent of the company
and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not
bound to rely upon the name or title given it by the contracting parties,
should thereby a controversy as to what they really had intended to
enter into, but the way the contracting parties do or perform their
respective obligations stipulated or agreed upon may be shown and
inquired into, and should such performance conflict with the name or

title given the contract by the parties, the former must prevail over the
latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance
Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating
the apparent relationship of employer and independent contractor, and
of avoiding liability for the negligence of the employees about the
station; but the company was not satisfied to allow such relationship to
exist. The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted for should
be performed. By reserving the right to terminate the contract at will, it
retained the means of compelling submission to its orders. Having
elected to assume control and to direct the means and methods by
which the work has to be performed, it must be held liable for the
negligence of those performing service under its direction. We think the
evidence was sufficient to sustain the verdict of the jury. (Gulf Refining
Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to
Boquiren. But no cash invoices were presented to show that Boquiren had
bought said gasoline from Caltex. Neither was there a sales contract to prove
the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after
deducting the amount of P2,000.00 collected by them on the insurance of the
house. The deduction is now challenged as erroneous on the ground that Article
2207 of the New Civil Code, which provides for the subrogation of the insurer to
the rights of the insured, was not yet in effect when the loss took place.
However, regardless of the silence of the law on this point at that time, the
amount that should be recovered be measured by the damages actually
suffered, otherwise the principle prohibiting unjust enrichment would be violated.
With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the
lower court on the basis of the assessed value of the property destroyed,
namely, P1,500.00, disregarding the testimony of one of the Ong children that
said property was worth P4,000.00. We agree that the court erred, since it is of
common knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are therefore entitled to
P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees
are held liable solidarily to appellants, and ordered to pay them the aforesaid
sum of P9,005.80 and P10,000.00, respectively, with interest from the filing of
the complaint, and costs.

G.R. No. L-52732

August 29, 1988

F.F. CRUZ and CO., INC., petitioner,

vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife
LUZ ALMONTE MABLE and children DOMING, LEONIDAS, LIGAYA,
ELENA, GREGORIO, JR., SALOME, ANTONIO, and BERNARDO all
surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.
CORTES, J.:

This petition to review the decision of the Court of Appeals puts in issue the
application of the common law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was situated
adjacent to the residence of private respondents. Sometime in August 1971,
private respondent Gregorio Mable first approached Eric Cruz, petitioner's plant
manager, to request that a firewall be constructed between the shop and private
respondents' residence. The request was repeated several times but they fell on
deaf ears. In the early morning of September 6, 1974, fire broke out in
petitioner's shop. Petitioner's employees, who slept in the shop premises, tried
to put out the fire, but their efforts proved futile. The fire spread to private
respondents' house. Both the shop and the house were razed to the ground.
The cause of the conflagration was never discovered. The National Bureau of
Investigation found specimens from the burned structures negative for the
presence of inflammable substances.
Subsequently, private respondents collected P35,000.00 on the insurance on
their house and the contents thereof.
On January 23, 1975, private respondents filed an action for damages against
petitioner, praying for a judgment in their favor awarding P150,000.00 as actual
damages, P50,000.00 as moral damages, P25,000.00 as exemplary damages,
P20,000.00 as attorney's fees and costs. The Court of First Instance held for
private respondents:
WHEREFORE, the Court hereby renders judgment, in favor of
plaintiffs, and against the defendant:
1. Ordering the defendant to pay to the plaintiffs the amount of
P80,000.00 for damages suffered by said plaintiffs for the loss
of their house, with interest of 6% from the date of the filing of
the Complaint on January 23, 1975, until fully paid;
2. Ordering the defendant to pay to the plaintiffs the sum of
P50,000.00 for the loss of plaintiffs' furnitures, religious images,
silverwares, chinawares, jewelries, books, kitchen utensils,
clothing and other valuables, with interest of 6% from date of
the filing of the Complaint on January 23, 1975, until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum of
P5,000.00 as moral damages, P2,000.00 as exemplary
damages, and P5,000.00 as and by way of attorney's fees;
4. With costs against the defendant;

5. Counterclaim is ordered dismissed, for lack of merit. [CA

Decision, pp. 1-2; Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on November 19,
1979, affirmed the decision of the trial court but reduced the award of damages:
WHEREFORE, the decision declaring the defendants liable is
affirmed. The damages to be awarded to plaintiff should be
reduced to P70,000.00 for the house and P50,000.00 for the
furniture and other fixtures with legal interest from the date of
the filing of the complaint until full payment thereof. [CA
Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was denied in a
resolution dated February 18, 1980. Hence, petitioner filed the instant petition for
review on February 22, 1980. After the comment and reply were filed, the Court
resolved to deny the petition for lack of merit on June 11, 1980.
However, petitioner filed a motion for reconsideration, which was granted, and
the petition was given due course on September 12, 1980. After the parties filed
their memoranda, the case was submitted for decision on January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private respondents recovered
on the insurance on their house, from the award of damages.
2. In awarding excessive and/or unproved damages.
3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.
The pivotal issue in this case is the applicability of the common law doctrine
of res ipsa loquitur, the issue of damages being merely consequential. In view
thereof, the errors assigned by petitioner shall be discussed in the reverse order.
1. The doctrine of res ipsa loquitur, whose application to the instant case
petitioner objects to, may be stated as follows:
Where the thing which caused the injury complained of is shown
to be under the management of the defendant or his servants
and the accident is such as in the ordinary course of things
does not happen if those who have its management or control
use proper care, it affords reasonable evidence, in the absence
of explanation by the defendant, that the accident arose from

want of care. [Africa v. Caltex (Phil.), Inc., G.R. No. L-12986,

March 31, 1966, 16 SCRA 448.]

The Court of Appeals, therefore, had more than adequate basis to find petitioner
liable for the loss sustained by private respondents.

Thus, in Africa, supra, where fire broke out in a Caltex service station while
gasoline from a tank truck was being unloaded into an underground storage tank
through a hose and the fire spread to and burned neighboring houses, this
Court, applying the doctrine of res ipsa loquitur, adjudged Caltex liable for the
loss.

2. Since the amount of the loss sustained by private respondents constitutes a

finding of fact, such finding by the Court of Appeals should not be disturbed by
this Court [M.D. Transit & Taxi Co., Inc. v. Court of Appeals, G.R. No. L-23882,
February 17, 1968, 22 SCRA 559], more so when there is no showing of
arbitrariness.

The facts of the case likewise call for the application of the doctrine, considering
that in the normal course of operations of a furniture manufacturing shop,
combustible material such as wood chips, sawdust, paint, varnish and fuel and
lubricants for machinery may be found thereon.

In the instant case, both the CFI and the Court of Appeals were in agreement as
to the value of private respondents' furniture and fixtures and personal effects
lost in the fire (i.e. P50,000.00). With regard to the house, the Court of Appeals
reduced the award to P70,000.00 from P80,000.00. Such cannot be categorized
as arbitrary considering that the evidence shows that the house was built in
1951 for P40,000.00 and, according to private respondents, its reconstruction
would cost P246,000.00. Considering the appreciation in value of real estate
and the diminution of the real value of the peso, the valuation of the house at
P70,000.00 at the time it was razed cannot be said to be excessive.

It must also be noted that negligence or want of care on the part of petitioner or
its employees was not merely presumed. The Court of Appeals found that
petitioner failed to construct a firewall between its shop and the residence of
private respondents as required by a city ordinance; that the fire could have
been caused by a heated motor or a lit cigarette; that gasoline and alcohol were
used and stored in the shop; and that workers sometimes smoked inside the
shop [CA Decision, p. 5; Rollo, p. 33.]
Even without applying the doctrine of res ipsa loquitur, petitioner's failure to
construct a firewall in accordance with city ordinances would suffice to support a
finding of negligence.
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent omission
on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping
over it. As it was the concrete wall was only 2-1/2 meters high,
and beyond that height it consisted merely of galvanized iron
sheets, which would predictably crumble and melt when
subjected to intense heat. Defendant's negligence, therefore,
was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses. [Africa
v. Caltex (Phil.), Inc., supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty of
negligence since it had failed to construct a firewall between its property and
private respondents' residence which sufficiently complies with the pertinent city
ordinances. The failure to comply with an ordinance providing for safety
regulations had been ruled by the Court as an act of negligence [Teague v.
Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]

3. While this Court finds that petitioner is liable for damages to private
respondents as found by the Court of Appeals, the fact that private respondents
have been indemnified by their insurer in the amount of P35,000.00 for the
damage caused to their house and its contents has not escaped the attention of
the Court. Hence, the Court holds that in accordance with Article 2207 of the
Civil Code the amount of P35,000.00 should be deducted from the amount
awarded as damages. Said article provides:
Art. 2207. If the plaintiffs property has been insured, and he has
received indemnity from the insurance company for the injury or
loss arising out of the wrong or breach of contract complained
of, the insurance company is subrogated to the rights of the
insured against the wrongdoer or the person who violated the
contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be
entitled to recover the deficiency from the person causing the
loss or injury. (Emphasis supplied.]
The law is clear and needs no interpretation. Having been indemnified by their
insurer, private respondents are only entitled to recover the deficiency from
petitioner.
On the other hand, the insurer, if it is so minded, may seek reimbursement of the
amount it indemnified private respondents from petitioner. This is the essence of
its right to be subrogated to the rights of the insured, as expressly provided in
Article 2207. Upon payment of the loss incurred by the insured, the insurer is
entitled to be subrogated pro tanto to any right of action which the insured may

have against the third person whose negligence or wrongful act caused the loss
[Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7,
1976, 70 SCRA 323.]
Under Article 2207, the real party in interest with regard to the indemnity
received by the insured is the insurer [Phil. Air Lines, Inc. v. Heald Lumber Co.,
101 Phil. 1031, (1957).] Whether or not the insurer should exercise the rights of
the insured to which it had been subrogated lies solely within the former's sound
discretion. Since the insurer is not a party to the case, its identity is not of record
and no claim is made on its behalf, the private respondent's insurer has to claim
his right to reimbursement of the P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is
hereby AFFIRMED with the following modifications as to the damages awarded
for the loss of private respondents' house, considering their receipt of
P35,000.00 from their insurer: (1) the damages awarded for the loss of the
house is reduced to P35,000.00; and (2) the right of the insurer to subrogation
and thus seek reimbursement from petitioner for the P35,000.00 it had paid
private respondents is recognized.
SO ORDERED.

G.R. No. 137873

April 20, 2001

D. M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of
D. M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his
death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy
and filed a report dated November 25, 1990, stating that:

5. P20,000.00 as attorneys fees, plus the costs of suit.

SO ORDERED.2

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig,

Metro Manila where he was pronounced dead on arrival (DOA) by the
attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same
date.
Investigation disclosed that at the given time, date and place, while
victim Jose A. Juego together with Jessie Jaluag and Delso Destajo
[were] performing their work as carpenter[s] at the elevator core of the
14thfloor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires attached to its
four corners and hooked at the 5 ton chain block, when suddenly, the
bolt or pin which was merely inserted to connect the chain block with the
[p]latform, got loose xxx causing the whole [p]latform assembly and the
victim to fall down to the basement of the elevator core, Tower D of the
building under construction thereby crushing the victim of death, save
his two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the
[p]latform he was then on board and performing work, fell. And the
falling of the [p]latform was due to the removal or getting loose of the pin
which was merely inserted to the connecting points of the chain block
and [p]latform but without a safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court
(RTC) of Pasig a complaint for damages against the deceaseds employer, D.M.
Consunji, Inc. The employer raised, among other defenses, the widows prior
availment of the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The
dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay
plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of

the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following
grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT THE

POLICE REPORT WAS ADMISSIBLE EVIDENCE OF THE
ALLEGED NEGLIGENCE OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT THE

DOCTRINE OF RES IPSA LOQUITOR[sic] IS APPLICABLE TO
PROVE NEGLIGENCE ON THE PART OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT

PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE
2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT

RESPONDENT IS NOT PRECLUDED FROM RECOVERING
DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and,
therefore, inadmissible. The CA ruled otherwise. It held that said report, being an
entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which
he knows of his personal knowledge, that is, which are derived from his
perception.4 A witness, therefore, may not testify as what he merely learned from
others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he
has learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that
excludes hearsay as evidence applies to written, as well as oral statements. 6

2. P10,000.00 as actual and compensatory damages.

3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.

The theory of the hearsay rule is that the many possible deficiencies,
suppressions, sources of error and untrustworthiness, which lie underneath the
bare untested assertion of a witness, may be best brought to light and exposed
by the test of cross-examiantion. 7 The hearsay rule, therefore, excludes
evidence that cannot be tested by cross-examination. 8

The Rules of Court allow several exceptions to the rule, 9 among which are
entries in official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in
the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law areprima
facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief
Justice Moran, enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person
specially enjoined by law to do so;
(b) that it was made by the public officer in the performance of his
duties, or by such other person in the performance of a duty specially
enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the
facts by him stated, which must have been acquired by him personally
or through official information.
The CA held that the police report meets all these requisites. Petitioner contends
that the last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also
testified before the trial court. InRodriguez vs. Court of Appeals,11 which involved
a Fire Investigation Report, the officer who signed the fire report also testified
before the trial court. This Court held that the report was inadmissible for the
purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who
executed the report.
x x x. Since Major Enriquez himself took the witness stand and was
available for cross-examination, the portions of the report which were of
his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the
summary of the statements of the parties based on their sworn
statements (which were annexed to the Report) as well as the latter,
having been included in the first purpose of the offer [as part of the
testimony of Major Enriquez], may then be considered as independently
relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to
prove the truth thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact

that it has been made is relevant, the hearsay rule does not
apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on
his Report and made himself available for cross-examination by the
adverse party, the Report, insofar as it proved that certain utterances
were made (but not their truth), was effectively removed from the ambit
of the aforementioned Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of the officer who
made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in
evidence as prima facie evidence of the facts therein stated. The
underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily
needed; the occasions in which the officials would be
summoned from his ordinary duties to declare as a witness are
numberless. The public officers are few in whose daily work
something is not done in which testimony is not needed from
official sources. Were there no exception for official statements,
hosts of officials would be found devoting the greater part of
their time to attending as witnesses in court or delivering
deposition before an officer. The work of administration of
government and the interest of the public having business with
officials would alike suffer in consequence. For these reasons,
and for many others, a certain verity is accorded such
documents, which is not extended to private documents. (3
Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it
presumes they will discharge their several trusts with accuracy
and fidelity; and, therefore, whatever acts they do in discharge
of their duty may be given in evidence and shall be taken to be
true under such a degree of caution as to the nature and
circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not
presented to testify on his report. In that case the applicability of Section
44 of Rule 143 would have been ripe for determination, and this Court
would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied.
The statements given by the sources of information of Major Enriquez

failed to qualify as "official information," there being no showing that, at

the very least, they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving
the truth of the statements contained therein but is admissible insofar as it
constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which
were of his personal knowledge suffice to prove that Jose Juego indeed died as
a result of the elevator crash. PO3 Villanueva had seen Juegos remains at the
morgue,12 making the latters death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself. 14 He observed that the platform was
crushed15 and that it was totally damaged. 16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon inspection,
he noticed that the chain was detached from the lifting machine, without any pin
or bolt.17
What petitioner takes particular exception to is PO3 Villanuevas testimony that
the cause of the fall of the platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is mere opinion. Subject to
certain exceptions,18 the opinion of a witness is generally not admissible.19
Petitioners contention, however, loses relevance in the face of the application
of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a
presumption or inference that the mere fall of the elevator was a result of the
person having charge of the instrumentality was negligent. As a rule of evidence,
the doctrine of res ipsa loquituris peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof
and furnishes a substitute for specific proof of negligence. 20
The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the
mere happening of an accident or injury will not generally give rise to an
inference or presumption that it was due to negligence on defendants
part, under the doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction, that the thing
or instrumentality speaks for itself, the facts or circumstances
accompanying an injury may be such as to raise a presumption, or at
least permit an inference of negligence on the part of the defendant, or
some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the
injury complained of was under the control or management of the
defendant, and that the occurrence resulting in the injury was such as in

the ordinary course of things would not happen if those who had its
control or management used proper care, there is sufficient evidence,
or, as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused
by the defendants want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary
evidence is absent or not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the
defendant in charge of the instrumentality which causes the injury either
knows the cause of the accident or has the best opportunity of
ascertaining it and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general terms and to rely
upon the proof of the happening of the accident in order to establish
negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or
innocent, is practically accessible to the defendant but inaccessible to
the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge
by which a plaintiff, without knowledge of the cause, reaches over to
defendant who knows or should know the cause, for any explanation of
care exercised by the defendant in respect of the matter of which the
plaintiff complains. The res ipsa loquitur doctrine, another court has
said, is a rule of necessity, in that it proceeds on the theory that under
the peculiar circumstances in which the doctrine is applicable, it is within
the power of the defendant to show that there was no negligence on his
part, and direct proof of defendants negligence is beyond plaintiffs
power. Accordingly, some court add to the three prerequisites for the
application of the res ipsa loquitur doctrine the further requirement that
for the res ipsa loquitur doctrine to apply, it must appear that the injured
party had no knowledge or means of knowledge as to the cause of the
accident, or that the party to be charged with negligence has superior
knowledge or opportunity for explanation of the accident. 23
The CA held that all the requisites of res ipsa loquitur are present in the case at
bar:
There is no dispute that appellees husband fell down from the 14 th floor
of a building to the basement while he was working with appellants
construction project, resulting to his death. The construction site is within
the exclusive control and management of appellant. It has a safety
engineer, a project superintendent, a carpenter leadman and others who
are in complete control of the situation therein. The circumstances of
any accident that would occur therein are peculiarly within the
knowledge of the appellant or its employees. On the other hand, the

appellee is not in a position to know what caused the accident.Res ipsa

loquitur is a rule of necessity and it applies where evidence is absent or
not readily available, provided the following requisites are present: (1)
the accident was of a kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality or agency which caused
the injury was under the exclusive control of the person charged with
negligence; and (3) the injury suffered must not have been due to any
voluntary action or contribution on the part of the person injured. x x x.
No worker is going to fall from the 14 th floor of a building to the
basement while performing work in a construction site unless someone
is negligent[;] thus, the first requisite for the application of the rule of res
ipsa loquitur is present. As explained earlier, the construction site with all
its paraphernalia and human resources that likely caused the injury is
under the exclusive control and management of appellant[;] thus[,] the
second requisite is also present. No contributory negligence was
attributed to the appellees deceased husband[;] thus[,] the last requisite
is also present. All the requisites for the application of the rule of res
ipsa loquitur are present, thus a reasonable presumption or inference of
appellants negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application
of res ipsa loquitur, but argues that the presumption or inference that it was
negligent did not arise since it "proved that it exercised due care to avoid the
accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As
stated earlier, the defendants negligence is presumed or inferred 25 when the
plaintiff establishes the requisites for the application of res ipsa loquitur. Once
the plaintiff makes out a prima facie case of all the elements, the burden then
shifts to defendant to explain.26 The presumption or inference may be rebutted
or overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the
inference.27 It is not for the defendant to explain or prove its defense to prevent
the presumption or inference from arising. Evidence by the defendant of say,
due care, comes into play only after the circumstances for the application of the
doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro
executed before the police investigator as evidence of its due care. According to
Fabros sworn statement, the company enacted rules and regulations for the
safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due
care but, in arguing that private respondent failed to prove negligence on the

part of petitioners employees, also assails the same statement for being
hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible.
Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant
is placed on the witness stand to testify thereon. 28 The inadmissibility of this sort
of evidence is based not only on the lack of opportunity on the part of the
adverse party to cross-examine the affiant, but also on the commonly known fact
that, generally, an affidavit is not prepared by the affiant himself but by another
who uses his own language in writing the affiants statements which may either
be omitted or misunderstood by the one writing them. 29 Petitioner, therefore,
cannot use said statement as proof of its due care any more than private
respondent can use it to prove the cause of her husbands death. Regrettably,
petitioner does not cite any other evidence to rebut the inference or presumption
of negligence arising from the application of res ipsa loquitur, or to establish any
defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the
death benefits provided under the Labor Code and is, therefore, precluded from
claiming from the deceaseds employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless otherwise provided, the liability of
the State Insurance Fund under this Title shall be exclusive and in place
of all other liabilities of the employer to the employee, his dependents or
anyone otherwise entitled to receive damages on behalf of the
employee or his dependents. The payment of compensation under this
Title shall not bar the recovery of benefits as provided for in Section 699
of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred
ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four
as amended, and other laws whose benefits are administered by the
System or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens
Compensation Act, provided that:
Section 5. Exclusive right to compensation. The rights and remedies
granted by this Act to an employee by reason of a personal injury
entitling him to compensation shall exclude all other rights and remedies
accruing to the employee, his personal representatives, dependents or
nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.

Whether Section 5 of the Workmens Compensation Act allowed recovery under

said Act as well as under the Civil Code used to be the subject of conflicting
decisions. The Court finally settled the matter in Floresca vs.Philex Mining
Corporation,30 which involved a cave-in resulting in the death of the employees
of the Philex Mining Corporation. Alleging that the mining corporation, in
violation of government rules and regulations, failed to take the required
precautions for the protection of the employees, the heirs of the deceased
employees filed a complaint against Philex Mining in the Court of First Instance
(CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack of
jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of
the Court En Banc,31 following the rule in Pacaa vs. Cebu Autobus Company,
held in the affirmative.
WE now come to the query as to whether or not the injured employee or
his heirs in case of death have a right of selection or choice of action
between availing themselves of the workers right under the Workmens
Compensation Act and suing in the regular courts under the Civil Code
for higher damages (actual, moral and exemplary) from the employers
by virtue of the negligence or fault of the employers or whether they may
avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmens Compensation Act and sue in
addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus
Company, 32 SCRA 442, ruled thatan injured worker has a choice of
either to recover from the employer the fixed amounts set by the
Workmens Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot pursue both
courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed
with their suit under the Civil Code despite having availed of the benefits
provided under the Workmens Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion
to dismiss dated May 14, 1968 before the court a quo, that the heirs of
the deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio
Lanuza, Lorenzo Isla and Saturnino submitted notices and claims for
compensation to the Regional Office No. 1 of the then Department of
Labor and all of them have been paid in full as of August 25, 1967,
except Saturnino Martinez whose heirs decided that they be paid in
installments x x x. Such allegation was admitted by herein petitioners in
their opposition to the motion to dismiss dated may 27, 1968 x x x in the
lower court, but they set up the defense that the claims were filed under
the Workmens Compensation Act before they learned of the official

report of the committee created to investigate the accident which

established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive
Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits
under the Workmens Compensation Act, such my not preclude them
from bringing an action before the regular court because they became
cognizant of the fact that Philex has been remiss in its contractual
obligations with the deceased miners only after receiving compensation
under the Act. Had petitioners been aware of said violation of
government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmens Compensation
Commission which awarded a lesser amount for compensation. The
choice of the first remedy was based on ignorance or a mistake of fact,
which nullifies the choice as it was not an intelligent choice. The case
should therefore be remanded to the lower court for further proceedings.
However, should the petitioners be successful in their bid before the
lower court, the payments made under the Workmens Compensation
Act should be deducted from the damages that may be decreed in their
favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was
reiterated in Ysmael Maritime Corporation vs. Avelino,32 Vda. De Severo vs.
Feliciano-Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last case, the
Court again recognized that a claimant who had been paid under the Act could
still sue under the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by
workers in the course of their employment could be filed only under the
Workmens Compensation Law, to the exclusion of all further claims
under other laws. In Floresca, this doctrine was abrogated in favor of the
new rule that the claimants may invoke either the Workmens
Compensation Act or the provisions of the Civil Code, subject to the
consequence that the choice of one remedy will exclude the other and
that the acceptance of compensation under the remedy chosen will
preclude a claim for additional benefits under the other remedy. The
exception is where a claimant who has already been paid under the
Workmens Compensation Act may still sue for damages under the Civil
Code on the basis of supervening facts or developments occurring after
he opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondents case came under the exception
because private respondent was unaware of petitioners negligence when she
filed her claim for death benefits from the State Insurance Fund. Private
respondent filed the civil complaint for damages after she received a copy of the
police investigation report and the Prosecutors Memorandum dismissing the

criminal complaint against petitioners personnel. While stating that there was no
negligence attributable to the respondents in the complaint, the prosecutor
nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged
negligence of appellant as early as November 25, 1990, the date of the
police investigators report. The appellee merely executed her sworn
statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the
accident. She did not file the complaint for "Simple Negligence Resulting
to Homicide" against appellants employees. It was the investigator who
recommended the filing of said case and his supervisor referred the
same to the prosecutors office. This is a standard operating procedure
for police investigators which appellee may not have even known. This
may explain why no complainant is mentioned in the preliminary
statement of the public prosecutor in her memorandum dated February
6, 1991, to wit: "Respondent Ferdinand Fabro x x x are being charged
by complainant of "Simple Negligence Resulting to Homicide." It is also
possible that the appellee did not have a chance to appear before the
public prosecutor as can be inferred from the following statement in said
memorandum: "Respondents who were notified pursuant to Law waived
their rights to present controverting evidence," thus there was no reason
for the public prosecutor to summon the appellee. Hence, notice of
appellants negligence cannot be imputed on appellee before she
applied for death benefits under ECC or before she received the first
payment therefrom. Her using the police investigation report to support
her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the
Prosecutors Office dismissing the criminal complaint for insufficiency of
evidence, stating therein that: "The death of the victim is not attributable
to any negligence on the part of the respondents. If at all and as shown
by the records this case is civil in nature." (Underscoring supplied.)
Considering the foregoing, We are more inclined to believe appellees
allegation that she learned about appellants negligence only after she
applied for and received the benefits under ECC. This is a mistake of
fact that will make this case fall under the exception held in
the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts,
but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only
elementary school for her educational attainment; that she did not know
what damages could be recovered from the death of her husband; and
that she did not know that she may also recover more from the Civil
Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent

"failed to allege in her complaint that her application and receipt of benefits from
the ECC were attended by ignorance or mistake of fact. Not being an issue
submitted during the trial, the trial court had no authority to hear or adjudicate
that issue."
Petitioner also claims that private respondent could not have been ignorant of
the facts because as early as November 28, 1990, private respondent was the
complainant in a criminal complaint for "Simple Negligence Resulting to
Homicide" against petitioners employees. On February 6, 1991, two months
before the filing of the action in the lower court, Prosecutor Lorna Lee issued a
resolution finding that, although there was insufficient evidence against
petitioners employees, the case was "civil in nature." These purportedly show
that prior to her receipt of death benefits from the ECC on January 2, 1991 and
every month thereafter, private respondent also knew of the two choices of
remedies available to her and yet she chose to claim and receive the benefits
from the ECC.
When a party having knowledge of the facts makes an election between
inconsistent remedies, the election is final and bars any action, suit, or
proceeding inconsistent with the elected remedy, in the absence of fraud by the
other party. The first act of election acts as a bar. 37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to
both parties. It rests on the moral premise that it is fair to hold people
responsible for their choices. The purpose of the doctrine is not to prevent any
recourse to any remedy, but to prevent a double redress for a single wrong. 38
The choice of a party between inconsistent remedies results in a waiver by
election. Hence, the rule in Florescathat a claimant cannot simultaneously
pursue recovery under the Labor Code and prosecute an ordinary course of
action under the Civil Code. The claimant, by his choice of one remedy, is
deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has
knowledge of its rights, but chooses not to assert them. It must be
generally shown by the party claiming a waiver that the person against
whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the partys rights or of all material facts
upon which they depended. Where one lacks knowledge of a right, there
is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given
under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person

knows that a right exists and has adequate knowledge upon which to
make an intelligent decision.

There is also no showing that private respondent knew of the remedies available
to her when the claim before the ECC was filed. On the contrary, private
respondent testified that she was not aware of her rights.

Waiver requires a knowledge of the facts basic to the exercise of the

right waived, with an awareness of its consequences. That a waiver is
made knowingly and intelligently must be illustrated on the record or by
the evidence.40

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the
law excuses no one from compliance therewith. As judicial decisions applying or
interpreting the laws or the Constitution form part of the Philippine legal system
(Article 8, Civil Code), private respondent cannot claim ignorance of this Courts
ruling inFloresca allowing a choice of remedies.

That lack of knowledge of a fact that nullifies the election of a remedy is the
basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as
plaintiff, to allege in her complaint that she had availed of benefits from the ECC.
It is, thus, erroneous for petitioner to burden private respondent with raising
waiver as an issue. On the contrary, it is the defendant who ought to plead
waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial
court had no jurisdiction over the issue when petitioner itself pleaded waiver in
the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her
husbands death and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake
of fact. In this case, the "fact" that served as a basis for nullifying the waiver is
the negligence of petitioners employees, of which private respondent
purportedly learned only after the prosecutor issued a resolution stating that
there may be civil liability. InFloresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or
violation of government rules and regulations, for that matter, however, is not a
fact, but aconclusion of law, over which only the courts have the final say. Such
a conclusion binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact nullifies a waiver
has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband
died in the elevator crash when on November 15, 1990 she accomplished her
application for benefits from the ECC. The police investigation report is dated
November 25, 1990, 10 days after the accomplishment of the form. Petitioner
filed the application in her behalf on November 27, 1990.

The argument has no merit. The application of Article 3 is limited to mandatory

and prohibitory laws. 42 This may be deduced from the language of the provision,
which, notwithstanding a persons ignorance, does not excuse his or
her compliance with the laws. The rule in Floresca allowing private respondent a
choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records
do not indicate the total amount private respondent ought to receive from the
ECC, although it appears from Exhibit "K" 43 that she received P3,581.85 as
initial payment representing the accrued pension from November 1990 to March
1991. Her initial monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40. Whether the total
amount she will eventually receive from the ECC is less than the sum of
P644,000.00 in total damages awarded by the trial court is subject to
speculation, and the case is remanded to the trial court for such determination.
Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be
deducted from the trial court' award of damages. Consistent with our ruling
in Floresca, this adjudication aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig
City to determine whether the award decreed in its decision is more than that of
the ECC. Should the award decreed by the trial court be greater than that
awarded by the ECC, payments already made to private respondent pursuant to
the Labor Code shall be deducted therefrom. In all other respects, the Decision
of the Court of Appeals is AFFIRMED.
SO ORDERED.

G.R. No. 157906

November 2, 2006

JOAQUINITA
P.
CAPILI, Petitioner,
vs.
SPS. DOMINADOR CARDAA and ROSALITA CARDAA, Respondents.
QUISUMBING, J.:
Before us is a petition for review assailing the Decision 1 dated October 18, 2002
of the Court of Appeals in CA-G.R. CV. No. 54412, declaring petitioner liable for
negligence that resulted in the death of Jasmin Cardaa, a school child aged 12,
enrolled in Grade 6, of San Roque Elementary School, where petitioner is the
principal. Likewise assailed is the Resolution2 dated March 20, 2003 denying
reconsideration.

The facts are as follows:

On February 1, 1993, Jasmin Cardaa was walking along the perimeter fence of
the San Roque Elementary School when a branch of a caimito tree located
within the school premises fell on her, causing her instantaneous death. Thus,
her parents - Dominador and Rosalita Cardaa - filed a case for damages
before the Regional Trial Court of Palo, Leyte against petitioner.
The Cardaas alleged in their complaint that even as early as December 15,
1992, a resident of the barangay, Eufronio Lerios, reported on the possible
danger the tree posed to passersby. Lerios even pointed to the petitioner the
tree that stood near the principals office. The Cardaas averred that petitioners
gross negligence and lack of foresight caused the death of their daughter.
Petitioner denied the accusation and said that at that time Lerios had only
offered to buy the tree. She also denied knowing that the tree was dead and
rotting. To prove her point, she presented witnesses who attested that she had
brought up the offer of Lerios to the other teachers during a meeting on
December 15, 1992 and assigned Remedios Palaa to negotiate the sale.
In a Decision3 dated February 5, 1996, the trial court dismissed the complaint for
failure of the respondents to establish negligence on the part of the petitioner.
On appeal, the Court of Appeals reversed the trial courts decision. The
appellate court found the appellee (herein petitioner) liable for Jasmins death,
as follows:
Foregoing premises considered, the instant appeal is GRANTED. Appellee
Joaquinita Capili is hereby declared liable for negligence resulting to the death
of Jasmin D. Cardaa. She is hereby ordered to indemnify appellants, parents of
Jasmin, the following amounts:
1. For the life of Jasmin D. Cardaa P50,000.00;
2. For burial expenses 15,010.00;
3. For moral damages 50,000.00;
4.
For
expenses

attorneys

fees

and

litigation

10,000.00.

SO ORDERED.4
Petitioners motion for reconsideration was denied. Petitioner now comes before
us submitting the following issues for our resolution:

WHETHER OR NOT THE COURT OF APPEALS VIS--VIS THE SET

OF FACTS STATED IN THE CHALLENGED DECISION, ERRED IN
FINDING THE PETITIONER NEGLIGENT AND THEREFORE LIABLE
FOR DAMAGES UNDER ARTICLE 2206 OF THE CIVIL CODE AND IN
ORDERING THE PETITIONER TO PAY DAMAGES TO THE
RESPONDENTS; AND
II
WHETHER OR NOT THE COURT OF APPEALS ERRED IN DENYING
PETITIONERS MOTION FOR RECONSIDERATION.5
On the other hand, respondents posit the following issue:
Whether or not the Decision of the Honorable Court of Appeals, Twelfth Division,
in CA G.R. CV. No. 54412 promulgated on October 18, 2002 should be
affirmed and respected, thus remain undisturbed.6
Primarily, the issue is whether petitioner is negligent and liable for the death of
Jasmin Cardaa.
Petitioner asserts that she was not negligent about the disposal of the tree since
she had assigned her next-in-rank, Palaa, to see to its disposal; that despite
her physical inspection of the school grounds, she did not observe any indication
that the tree was already rotten nor did any of her 15 teachers inform her that
the tree was already rotten;7 and that moral damages should not be granted
against her since there was no fraud nor bad faith on her part.
On the other hand, respondents insist that petitioner knew that the tree was
dead and rotting, yet, she did not exercise reasonable care and caution which
an ordinary prudent person would have done in the same situation.
To begin, we have to point out that whether petitioner was negligent or not is a
question of fact which is generally not proper in a petition for review, and when
this determination is supported by substantial evidence, it becomes conclusive
and binding on this Court. 8 However, there is an exception, that is, when the
findings of the Court of Appeals are incongruent with the findings of the lower
court.9 In our view, the exception finds application in the present case.
The trial court gave credence to the claim of petitioner that she had no
knowledge that the tree was already dead and rotting and that Lerios merely
informed her that he was going to buy the tree for firewood. It ruled that
petitioner exercised the degree of care and vigilance which the circumstances
require and that there was an absence of evidence that would require her to use

a higher standard of care more than that required by the attendant

circumstances.10 The Court of Appeals, on the other hand, ruled that petitioner
should have known of the condition of the tree by its mere sighting and that no
matter how hectic her schedule was, she should have had the tree removed and
not merely delegated the task to Palaa. The appellate court ruled that the
deadcaimito tree was a nuisance that should have been removed soon after
petitioner had chanced upon it.11

In the case of D.M. Consunji, Inc. v. Court of Appeals,15 this Court held:

A negligent act is an inadvertent act; it may be merely carelessly done from a

lack of ordinary prudence and may be one which creates a situation involving an
unreasonable risk to another because of the expectable action of the other, a
third person, an animal, or a force of nature. A negligent act is one from which
an ordinary prudent person in the actors position, in the same or similar
circumstances, would foresee such an appreciable risk of harm to others as to
cause him not to do the act or to do it in a more careful manner.12

While negligence is not ordinarily inferred or presumed, and while the mere
happening of an accident or injury will not generally give rise to an inference or
presumption that it was due to negligence on defendants part, under the
doctrine of res ipsa loquitur, which means, literally, the thing or transaction
speaks for itself, or in one jurisdiction, that the thing or instrumentality speaks for
itself, the facts or circumstances accompanying an injury may be such as to
raise a presumption, or at least permit an inference of negligence on the part of
the defendant, or some other person who is charged with negligence.

The probability that the branches of a dead and rotting tree could fall and harm
someone is clearly a danger that is foreseeable. As the school principal,
petitioner was tasked to see to the maintenance of the school grounds and
safety of the children within the school and its premises. That she was unaware
of the rotten state of a tree whose falling branch had caused the death of a child
speaks ill of her discharge of the responsibility of her position.
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove
by a preponderance of evidence: (1) the damages suffered by the plaintiff; (2)
the fault or negligence of the defendant or some other person for whose act he
must respond; and (3) the connection of cause and effect between the fault or
negligence and the damages incurred.13
The fact, however, that respondents daughter, Jasmin, died as a result of the
dead and rotting tree within the schools premises shows that the tree was
indeed an obvious danger to anyone passing by and calls for application of the
principle of res ipsa loquitur.
The doctrine of res ipsa loquitur applies where (1) the accident was of such
character as to warrant an inference that it would not have happened except for
the defendants negligence; (2) the accident must have been caused by an
agency or instrumentality within the exclusive management or control of the
person charged with the negligence complained of; and (3) the accident must
not have been due to any voluntary action or contribution on the part of the
person injured.14
The effect of the doctrine of res ipsa loquitur is to warrant a presumption or
inference that the mere falling of the branch of the dead and rotting tree which
caused the death of respondents daughter was a result of petitioners
negligence, being in charge of the school.

As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of
negligence which recognizes thatprima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of negligence.
The concept of res ipsa loquitur has been explained in this wise:

x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that
the occurrence resulting in the injury was such as in the ordinary course of
things would not happen if those who had its control or management used
proper care, there is sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant, that the injury arose
from or was caused by the defendants want of care.
The procedural effect of the doctrine of res ipsa loquitur is that petitioners
negligence is presumed once respondents established the requisites for the
doctrine to apply. Once respondents made out a prima facie case of all
requisites, the burden shifts to petitioner to explain. The presumption or
inference may be rebutted or overcome by other evidence and, under
appropriate circumstances a disputable presumption, such as that of due care or
innocence, may outweigh the inference.16
Was petitioners explanation as to why she failed to have the tree removed
immediately sufficient to exculpate her?
As the school principal, petitioner was tasked to see to the maintenance of the
school grounds and safety of the children within the school and its premises.
That she was unaware of the rotten state of the tree calls for an explanation on
her part as to why she failed to be vigilant.
Petitioner contends she was unaware of the state of the dead and rotting tree
because Lerios merely offered to buy the tree and did not inform her of its
condition. Neither did any of her teachers inform her that the tree was an
imminent danger to anyone. She argues that she could not see the immediate
danger posed by the tree by its mere sighting even as she and the other

teachers conducted ground inspections. She further argues that, even if she
should have been aware of the danger, she exercised her duty by assigning the
disposition of the tree to another teacher.
We find petitioners explanation wanting. As school principal, petitioner is
expected to oversee the safety of the schools premises.1wphi1 The fact that
she failed to see the immediate danger posed by the dead and rotting tree
shows she failed to exercise the responsibility demanded by her position.
Moreover, even if petitioner had assigned disposal of the tree to another teacher,
she exercises supervision over her assignee.17 The record shows that more than
a month had lapsed from the time petitioner gave instruction to her assistant
Palaa on December 15, 1992, to the time the incident occurred on February 1,
1993. Clearly, she failed to check seasonably if the danger posed by the rotting
tree had been removed. Thus, we cannot accept her defense of lack of
negligence.
Lastly, petitioner questions the award of moral damages. Moral damages are
awarded if the following elements exist in the case: (1) an injury clearly
sustained by the claimant; (2) a culpable act or omission factually established;
(3) a wrongful act or omission by the defendant as the proximate cause of the
injury sustained by the claimant; and (4) the award of damages predicated on
any of the cases stated in Article 2219 of the Civil Code. 18However, the person
claiming moral damages must prove the existence of bad faith by clear and
convincing evidence for the law always presumes good faith. It is not enough
that one merely suffered sleepless nights, mental anguish, and serious anxiety
as the result of the actuations of the other party. Invariably, such action must be
shown to have been willfully done in bad faith or with ill motive. 19 Under the
circumstances, we have to concede that petitioner was not motivated by bad
faith or ill motive vis--vis respondents daughters death. The award of moral
damages is therefore not proper.
In line with applicable jurisprudence, we sustain the award by the Court of
Appeals of P50,000 as indemnity for the death of Jasmin, 20 and P15,010 as
reimbursement of her burial expenses.21
WHEREFORE, the petition is DENIED. The Decision dated October 18, 2002
and the Resolution dated March 20, 2003, of the Court of Appeals in CA-G.R.
CV. No. 54412 are AFFIRMED with MODIFICATION such that the award of
moral damages is hereby deleted.
Costs against petitioner.
SO ORDERED.

G.R. No. 132266

December 21, 1999

CASTILEX INDUSTRIAL CORPORATION, petitioner, vs. VICENTE

VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU DOCTORS HOSPITAL,
INC.,respondents.
DAVIDE, JR., C.J.:
The pivotal issue in this petition is whether an employer may be held
vicariously liable for the death resulting from the negligent operation by a
managerial employee of a company-issued vehicle.
The antecedents, as succinctly summarized by the Court of Appeals, are
as follows:
On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So
Vasquez, was driving a Honda motorcycle around Fuente Osmea
Rotunda. He was traveling counter-clockwise, (the normal flow of traffic in

a rotunda) but without any protective helmet or goggles. He was also only
carrying a Students Permit to Drive at the time. Upon the other hand,
Benjamin Abad [was a] manager of Appellant Castilex Industrial
Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no.
GBW-794. On the same date and time, Abad drove the said company car
out of a parking lot but instead of going around the Osmea rotunda he
made a short cut against [the] flow of the traffic in proceeding to his route
to General Maxilom St. or to Belvic St.
In the process, the motorcycle of Vasquez and the pick-up of Abad collided
with each other causing severe injuries to the former. Abad stopped his
vehicle and brought Vasquez to the Southern Islands Hospital and later to
the Cebu Doctors Hospital.
On September 5, 1988, Vasquez died at the Cebu Doctors Hospital. It was
there that Abad signed an acknowledgment of Responsible Party (Exhibit
K) wherein he agreed to pay whatever hospital bills, professional fees and
other incidental charges Vasquez may incur.
After the police authorities had conducted the investigation of the accident,
a Criminal Case was filed against Abad but which was subsequently
dismissed for failure to prosecute. So, the present action for damages was
commenced by Vicente Vasquez, Jr. and Luisa So Vasquez, parents of the
deceased Romeo So Vasquez, against Jose Benjamin Abad and Castilex
Industrial Corporation. In the same action, Cebu Doctors Hospital
intervened to collect unpaid balance for the medical expense given to
Romeo So Vasquez.[1]
The trial court ruled in favor of private respondents Vicente and Luisa
Vasquez and ordered Jose Benjamin Abad (hereafter ABAD) and petitioner
Castilex Industrial Corporation (hereafter CASTILEX) to pay jointly and
solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial
expenses; P50,000.00 as moral damages; P10,000.00 as attorneys fees;
and P778,752.00 for loss of earning capacity; and (2) Cebu Doctors
Hospital, the sum of P50,927.83 for unpaid medical and hospital bills at
3% monthly interest from 27 July 1989 until fully paid, plus the costs of
litigation.[2]
CASTILEX and ABAD separately appealed the decision.
In its decision[3] of 21 May 1997, the Court of Appeals affirmed the ruling of
the trial court holding ABAD and CASTILEX liable but held that the liability
of the latter is only vicarious and not solidary with the former. It reduced
the award of damages representing loss of earning capacity
from P778,752.00 to P214,156.80; and the interest on the hospital and
medical bills, from 3% per month to 12% per annum from 5 September
1988 until fully paid.

Upon CASTILEXs motion for reconsideration, the Court of Appeals

modified its decision by (1) reducing the award of moral damages
from P50,000 to P30,000 in view of the deceaseds contributory
negligence; (b) deleting the award of attorneys fees for lack of evidence;
and (c) reducing the interest on hospital and medical bills to 6% per annum
from 5 September 1988 until fully paid.[4]
Hence, CASTILEX filed the instant petition contending that the Court of
Appeals erred in (1) applying to the case the fifth paragraph of Article 2180
of the Civil Code, instead of the fourth paragraph thereof; (2) that as a
managerial employee, ABAD was deemed to have been always acting
within the scope of his assigned task even outside office hours because he
was using a vehicle issued to him by petitioner; and (3) ruling that
petitioner had the burden to prove that the employee was not acting within
the scope of his assigned task.
Jose Benjamin ABAD merely adopted the statement of facts of petitioner
which holds fast on the theory of negligence on the part of the deceased.
On the other hand, respondents Spouses Vasquez argue that their sons
death was caused by the negligence of petitioners employee who was
driving a vehicle issued by petitioner and who was on his way home from
overtime work for petitioner; and that petitioner is thus liable for the
resulting injury and subsequent death of their son on the basis of the fifth
paragraph of Article 2180. Even if the fourth paragraph of Article 2180
were applied, petitioner cannot escape liability therefor. They moreover
argue that the Court of Appeals erred in reducing the amount of
compensatory damages when the award made by the trial court was borne
both by evidence adduced during the trial regarding deceaseds wages and
by jurisprudence on life expectancy. Moreover, they point out that the
petition is procedurally not acceptable on the following grounds: (1) lack of
an explanation for serving the petition upon the Court of Appeals by
registered mail, as required under Section 11, Rule 13 of the Rules of Civil
Procedure; and (2) lack of a statement of the dates of the expiration of the
original reglementary period and of the filing of the motion for extension of
time to file a petition for review.
For its part, respondent Cebu Doctors Hospital maintains that petitioner
CASTILEX is indeed vicariously liable for the injuries and subsequent
death of Romeo Vasquez caused by ABAD, who was on his way home
from taking snacks after doing overtime work for petitioner. Although the
incident occurred when ABAD was not working anymore the inescapable
fact remains that said employee would not have been situated at such time
and place had he not been required by petitioner to do overtime work.
Moreover, since petitioner adopted the evidence adduced by ABAD, it
cannot, as the latters employer, inveigle itself from the ambit of liability, and
is thus estopped by the records of the case, which it failed to refute.
We shall first address the issue raised by the private respondents
regarding some alleged procedural lapses in the petition.

Private respondents contention of petitioners violation of Section 11 of

Rule 13 and Section 4 of Rule 45 of the 1997 Rules of Civil Procedure
holds no water.
Section 11 of Rule 13 provides:
SEC. 11. Priorities in modes of service and filing. -- Whenever practicable,
the service and filing of pleadings and other papers shall be done
personally. Except with respect to papers emanating from the court, a
resort to other modes must be accompanied by a written explanation why
the service or filing was not done personally. A violation of this Rule may
be cause to consider the paper as not filed.
The explanation why service of a copy of the petition upon the Court of
Appeals was done by registered mail is found on Page 28 of the
petition. Thus, there has been compliance with the aforequoted provision.
As regards the allegation of violation of the material data rule under
Section 4 of Rule 45, the same is unfounded. The material dates required
to be stated in the petition are the following: (1) the date of receipt of the
judgment or final order or resolution subject of the petition; (2) the date of
filing of a motion for new trial or reconsideration, if any; and (3) the date of
receipt of the notice of the denial of the motion. Contrary to private
respondents claim, the petition need not indicate the dates of the
expiration of the original reglementary period and the filing of a motion for
extension of time to file the petition. At any rate, aside from the material
dates required under Section 4 of Rule 45, petitioner CASTILEX also
stated in the first page of the petition the date it filed the motion for
extension of time to file the petition.
Now on the merits of the case.
The negligence of ABAD is not an issue at this instance. Petitioner
CASTILEX presumes said negligence but claims that it is not vicariously
liable for the injuries and subsequent death caused by ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code
should only apply to instances where the employer is not engaged in
business or industry. Since it is engaged in the business of manufacturing
and selling furniture it is therefore not covered by said provision. Instead,
the fourth paragraph should apply.
Petitioners interpretation of the fifth paragraph is not accurate. The phrase
even though the former are not engaged in any business or industry found
in the fifth paragraph should be interpreted to mean that it is not necessary
for the employer to be engaged in any business or industry to be liable for
the negligence of his employee who is acting within the scope of his
assigned task.[5]

A distinction must be made between the two provisions to determine what

is applicable. Both provisions apply to employers: the fourth paragraph, to
owners and managers of an establishment or enterprise; and the fifth
paragraph, to employers in general, whether or not engaged in any
business or industry. The fourth paragraph covers negligent acts of
employees committed either in the service of the branches or on the
occasion of their functions, while the fifth paragraph encompasses
negligent acts of employees acting within the scope of their assigned
task. The latter is an expansion of the former in both employer coverage
and acts included. Negligent acts of employees, whether or not the
employer is engaged in a business or industry, are covered so long as they
were acting within the scope of their assigned task, even though
committed neither in the service of the branches nor on the occasion of
their functions. For, admittedly, employees oftentimes wear different
hats. They perform functions which are beyond their office, title or
designation but which, nevertheless, are still within the call of duty.
This court has applied the fifth paragraph to cases where the employer
was engaged in a business or industry such as truck operators [6] and
banks.[7] The Court of Appeals cannot, therefore, be faulted in applying the
said paragraph of Article 2180 of the Civil Code to this case.
Under the fifth paragraph of Article 2180, whether or not engaged in any
business or industry, an employer is liable for the torts committed by
employees within the scope of his assigned tasks. But it is necessary to
establish the employer-employee relationship; once this is done, the
plaintiff must show, to hold the employer liable, that the employee was
acting within the scope of his assigned task when the tort complained of
was committed. It is only then that the employer may find it necessary to
interpose the defense of due diligence in the selection and supervision of
the employee.[8]
It is undisputed that ABAD was a Production Manager of petitioner
CASTILEX at the time of the tort occurrence. As to whether he was acting
within the scope of his assigned task is a question of fact, which the
court a quo and the Court of Appeals resolved in the affirmative.
Well-entrenched in our jurisprudence is the rule that the factual findings of
the Court of Appeals are entitled to great respect, and even finality at
times. This rule is, however, subject to exceptions such as when the
conclusion is grounded on speculations, surmises, or conjectures. [9] Such
exception obtain in the present case to warrant review by this Court of the
finding of the Court of Appeals that since ABAD was driving petitioners
vehicle he was acting within the scope of his duties as a manager.
Before we pass upon the issue of whether ABAD was performing acts
within the range of his employment, we shall first take up the other reason
invoked by the Court of Appeals in holding petitioner CASTILEX vicariously
liable for ABADs negligence, i.e., that the petitioner did not present
evidence that ABAD was not acting within the scope of his assigned tasks

at the time of the motor vehicle mishap. Contrary to the ruling of the Court
of Appeals, it was not incumbent upon the petitioner to prove the same. It
was enough for petitioner CASTILEX to deny that ABAD was acting within
the scope of his duties; petitioner was not under obligation to prove this
negative averment. Ei incumbit probatio qui dicit, non qui negat (He who
asserts, not he who denies, must prove). The Court has consistently
applied the ancient rule that if the plaintiff, upon whom rests the burden of
proving his cause of action, fails to show in a satisfactory manner facts
which he bases his claim, the defendant is under no obligation to prove his
exception or defense.[10]
Now on the issue of whether the private respondents have sufficiently
established that ABAD was acting within the scope of his assigned tasks.
ABAD, who was presented as a hostile witness, testified that at the time of
the incident, he was driving a company-issued vehicle, registered under
the name of petitioner. He was then leaving the restaurant where he had
some snacks and had a chat with his friends after having done overtime
work for the petitioner.
No absolutely hard and fast rule can be stated which will furnish the
complete answer to the problem of whether at a given moment, an
employee is engaged in his employers business in the operation of a
motor vehicle, so as to fix liability upon the employer because of the
employees action or inaction; but rather, the result varies with each state of
facts.[11]
In Filamer Christian Institute v. Intermediate Appellate Court,[12] this Court
had the occasion to hold that acts done within the scope of the employees
assigned tasks includes any act done by an employee in furtherance of the
interests of the employer or for the account of the employer at the time of
the infliction of the injury or damages.
The court a quo and the Court of Appeals were one in holding that the
driving by a manager of a company-issued vehicle is within the scope of
his assigned tasks regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at
the time of the injurious incident is not of itself sufficient to charge
petitioner with liability for the negligent operation of said vehicle unless it
appears that he was operating the vehicle within the course or scope of his
employment.
The following are principles in American Jurisprudence on the employers
liability for the injuries inflicted by the negligence of an employee in the use
of an employers motor vehicle:
I. Operation of Employers Motor Vehicle in Going to or from Meals
It has been held that an employee who uses his employers vehicle in
going from his work to a place where he intends to eat or in returning to

work from a meal is not ordinarily acting within the scope of his
employment in the absence of evidence of some special business benefit
to the employer. Evidence that by using the employers vehicle to go to and
from meals, an employee is enabled to reduce his time-off and so devote
more time to the performance of his duties supports the finding that an
employee is acting within the scope of his employment while so driving the
vehicle.[13]
II. Operation of Employers Vehicle in Going to or from Work
In the same vein, traveling to and from the place of work is ordinarily a
personal problem or concern of the employee, and not a part of his
services to his employer. Hence, in the absence of some special benefit to
the employer other than the mere performance of the services available at
the place where he is needed, the employee is not acting within the scope
of his employment even though he uses his employers motor vehicle. [14]
The employer may, however, be liable where he derives some special
benefit from having the employee drive home in the employers vehicle as
when the employer benefits from having the employee at work earlier and,
presumably, spending more time at his actual duties. Where the
employees duties require him to circulate in a general area with no fixed
place or hours of work, or to go to and from his home to various outside
places of work, and his employer furnishes him with a vehicle to use in his
work, the courts have frequently applied what has been called the special
errand or roving commission rule, under which it can be found that the
employee continues in the service of his employer until he actually reaches
home. However, even if the employee be deemed to be acting within the
scope of his employment in going to or from work in his employers vehicle,
the employer is not liable for his negligence where at the time of the
accident, the employee has left the direct route to his work or back home
and is pursuing a personal errand of his own.
III. Use of Employers Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an employee for the latters
personal use outside of regular working hours is generally not liable for the
employees negligent operation of the vehicle during the period of
permissive use, even where the employer contemplates that a regularly
assigned motor vehicle will be used by the employee for personal as well
as business purposes and there is some incidental benefit to the
employer. Even where the employees personal purpose in using the
vehicle has been accomplished and he has started the return trip to his
house where the vehicle is normally kept, it has been held that he has not
resumed his employment, and the employer is not liable for the employees
negligent operation of the vehicle during the return trip. [15]
The foregoing principles and jurisprudence are applicable in our
jurisdiction albeit based on the doctrine of respondeat superior, not on the
principle of bonus pater familias as in ours. Whether the fault or

negligence of the employee is conclusive on his employer as in American

law or jurisprudence, or merely gives rise to the presumption juris
tantum of negligence on the part of the employer as in ours, it is
indispensable that the employee was acting in his employers business or
within the scope of his assigned task.[16]
In the case at bar, it is undisputed that ABAD did some overtime work at
the petitioners office, which was located in Cabangcalan, Mandaue
City. Thereafter, he went to Goldies Restaurant in Fuente Osmea, Cebu
City, which is about seven kilometers away from petitioners place of
business.[17] A witness for the private respondents, a sidewalk vendor,
testified that Fuente Osmea is a lively place even at dawn because
Goldies Restaurant and Back Street were still open and people were
drinking thereat. Moreover, prostitutes, pimps, and drug addicts littered the
place.[18]
At the Goldies Restaurant, ABAD took some snacks and had a chat with
friends. It was when ABAD was leaving the restaurant that the incident in
question occurred. That same witness for the private respondents testified
that at the time of the vehicular accident, ABAD was with a woman in his
car, who then shouted: Daddy, Daddy![19] This woman could not have been
ABADs daughter, for ABAD was only 29 years old at the time.
To the mind of this Court, ABAD was engaged in affairs of his own or was
carrying out a personal purpose not in line with his duties at the time he
figured in a vehicular accident. It was then about 2:00 a.m. of 28 August
1988, way beyond the normal working hours. ABADs working day had
ended; his overtime work had already been completed. His being at a
place which, as petitioner put it, was known as a haven for prostitutes,
pimps, and drug pushers and addicts, had no connection to petitioners
business; neither had it any relation to his duties as a manager. Rather,
using his service vehicle even for personal purposes was a form of a fringe
benefit or one of the perks attached to his position.
Since there is paucity of evidence that ABAD was acting within the scope
of the functions entrusted to him, petitioner CASTILEX had no duty to
show that it exercised the diligence of a good father of a family in providing
ABAD with a service vehicle. Thus, justice and equity require that
petitioner be relieved of vicarious liability for the consequences of the
negligence of ABAD in driving its vehicle.[20]
WHEREFORE, the petition is GRANTED, and the appealed decision and
resolution of the Court of Appeals is AFFIRMED with the modification that
petitioner Castilex Industrial Corporation be absolved of any liability for the
damages caused by its employee, Jose Benjamin Abad.

G.R. No. L-10181

March 2, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
MARIANO CRAME, defendant-appellant.
Alfredo Chicote for appellant.
Office of the Solicitor-General for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of Manila
convicting the accused of the crime of serious physical injuries through reckless
negligence.
The information under which he was tried and convicted is as follows:

SO ORDERED.
That on or about the 10th day of February, 1914, in the city of Manila,
Philippine Islands, the said Mariano Crame, being then and there the
chauffeur of a motor vehicle, did then and there unlawfully, with reckless

imprudence and in violation of the regulations, conduct and drive the

said motor vehicle along Calle Herran in said city without using
reasonable care and diligence to prevent injury to persons and property
and without paying any attention to the pedestrians occupying and
crossing said street, thus colliding with, running over, and by his neglect
and imprudence in the management and lack of control thereof, causing
the said automobile guided and conducted by the said accused as
aforesaid, to knock down, drag, and run over the body of one George B.
Coombs, a private in the United States Army, who was then and there
occupying and crossing the said Calle Herran, thereby causing injuries,
wounds, and bruises upon the person of the said George B. Coombs,
which said injuries, wounds, and bruises have deranged the mental
faculties of the said George B. Coombs and have incapacitated him, the
said George B. Coombs, from further performance of his duties as a
soldier of the said United States Army.
It appears from the evidence that on the night of the 10th of February, 1914,
between 11 and 12 o'clock, the accused, Mariano Crame, a duly-licensed
chauffeur, was driving an automobile, in which, at the time, were Thomas M. Bill,
a sailor belonging to the United States Navy, and Indalecio Rabonsa, an
apprentice to the accused who, at the time of the accident, was sitting at his side
on the front seat. The automobile was passing from Santa Ana to Manila and, at
the time of the accident, was going in a northwesterly direction. At the same time
there were two automobile on the way from Manila to Santa Ana, one belonging
to Mr. Stuart, driven by himself, and the other a machine without passengers
driven by a chauffeur by the name of Miranda. The automobile driven by Stuart
was a modern Cadillac with high-powered electric lights. The accused states
that this fact added to the other fact that he was near the Damas Bridge at the
time, induced him to reduce the speed of the automobile at that point so that he
was, at the time of the accident, going only about 10 miles an hour. He asserts
that he suddenly saw the form of a man in front of his automobile and that, on
seeing him, he altered the course of the machine as much as possible in order
to avoid a collision; but that he was unable to do so, the right side of the
machine hitting the man and knocking him to the ground. He asserted that at the
time it struck the man, the machine was almost at a standstill, it coming to a
complete stop within about 6 feet of where the injured man lay.
Crame, Rabonsa, and Bill placed the injuries man in the automobile and carried
him to the hospital. Afterwards they went to the police station at Paco and gave
an account of the accident. Immediately thereafter Crame also went to the office
of the superintendent of automobiles of the Bureau of Public Works and reported
the accident.
Relative to the injuries resulting to Coombs from the accident, it appears that he
received a heavy blow in the lower part of the back of the head which caused
ecchymosis and coagulation of blood. As a result of the blow he was rendered
unconscious and has since remained in state of great mental debility, with

severe pains in the head, almost complete loss of memory, being unable to
remember anything that occurred during the accident and, it times forgetting the
names and countenances of his most continual attendance. He is described by
the physician who examined and treated him as an incurable and hopeless
imbecile.
The learned trial court convicted the accused of the crime of producing serious
physical injuries by imprudencia temeraria, setting forth as the grounds of the
conviction the following reasons:
First, in that [before the occurrence] the accused, having seen the
coldier Coombs crossing the street at a certain distance in front of the
automobile, did not reduce the speed of the automobile sufficiently, nor
attempt to stop the machinery entirely, if that was necessary, to avoid an
accident. Second, in that it does not appear that the accused sounded
his horn or whistle or used his voice to call the attention of the person
who was crossing the street or notify him that he should stop and avoid
being struck by the automobile. Third and last, in that the accused was
driving in the center, or little to the right of the center of the street
instead of on the left side thereof:
Discussing these point the court said:
With reference to the first ground of negligence, the accused alleges
that he was unable to stop his machine suddenly; but to this it may be
answered that if he had begun to stop the machine the first moment that
he saw the soldier the accident would undoubtedly have been avoided. .
. . What the court desires to say is that with a speed of only 12 to 20
mile an hour, if the accused had begun to reduce speed in time, there is
no doubt whatever that the accident would have been avoided and he
would have been able easily to stop his machine in time.
Relative to the second ground of negligence, or the failure, in order to
prevent the injury, to sound the horn and arrest the attention of the
soldier who was crossing the street, there is nowhere in the case any
proof or even an allegation in front of the accused. He testified as a
witness in his own behalf, but he never mentioned having sounded the
horn, nor did he give any reason why he did not do so.
In regard to the third ground of negligence, the accused and his
witnesses sought to establish the fact that, at the place where the
accident occurred, the automobile could not pass along the left side of
the street because the street-car rails are upon that side, and if he had
attempted to pass upon the left side of the rails the automobile would
have been thrown into the ditch, as the street upon that side of the
street-car tracks is very uneven and as a result the chauffeur and his

passenger would have been exposed to a greater danger than the one
that they tried to avoid. The court nevertheless, is of the opinion that this
claim is not sustainable in view of the fact that, at the place where the
accident occurred, as has already been said, there are two street-car
tracks. One of those track, it is true, is very close to the extreme left side
of the street, but the other is located about the center of the street. The
accused should not have been required to drive his automobile upon the
left said of the farther track; but it is evident that he could have passed
between this track and the track in the center of the street. If the
accident had occurred under such circumstances the court would have
said that it was an unavoidable accident. But as the collision occurred
outside of the tack in the center of the street and on the right hand side
of the street, the court believes that the accused is the cause of said
accident.
The court, in company with the prosecuting attorney, the attorney of the
accused and Mariano Crame himself, examined the place where the
accident occurred and, from a careful examination of the place,
compared with the testimony of the seaman Bill and the witness Stuart,
the Court is convinced that the place where the soldier was hit is not the
place indicated by the accused that is, between the Damas Bridge
and the McKinley Junction, just opposite a wooden post, but at the place
marked in the plan Exhibit A by the witness Stuart.
We are satisfied from an examination of the record that the conclusions of the
trial court are more than sustained. The accused did not see the soldier whom
he ran down until it was too late, although the street at that point was brilliantly
lighted; he did not sound his horn or give notice of his approach in any other
manner; he did not apply the brake or make any effort whatever to stop; he was
traveling on the wrong side of the street at the time of the collision.
In defense of the accused counsel says:
At what distance did the accused see the soldier? From the testimony of
the accused and the witness Rabonsa, which is all the proof there is in
the record in this respect, it is inferred that neither the chauffeur nor his
companion saw the soldier at a sufficient distance to permit them to lose
time in useless or at least doubtful maneuvers; Rabonsa says that he
saw the soldier first at the very moment of the accident; Stuart saw him
only as he was falling to the ground; and the accused says that the
soldier appeared suddenly in front of the machine and that he, accused,
in the face of imminent danger of a collision charged the direction of the
automobile in order not to have the center of the machine strike the
soldier, but that he was unable to avoid hitting him with the rear part of
the machine, thereby party turning him and making him fall to the
ground; that thereupon the accused, in order to prevent the rear wheel
from striking the soldier, again changed the direction of the machine,

thereby avoiding by these two maneuvers the passage of the machine

over the body of the soldier.
This argument is, in our judgment, not a strong one. The fact that the accused
did not see the soldier until the machine was very close to him is strong
evidence of inattention to duty. The street at the place where the accident
occurred is wide and unobstructed. There is no building on either side of the
street. There is no place from which a person desiring to cross the street can
dart out so suddenly and unexpectedly as to give a chauffeur no opportunity to
protect him. The street at the point where the accident occurred was well lighted
by electric light placed on both sides of the street. Besides, it is in close
proximity to McKinley Junction and there are a number of electric lights in and
about the waiting station located at that point. Under such circumstance there is
no reason why the accused did not see that soldier long before he had reached
the position in the street where he was struck down. It is claimed by the accused
himself that the soldier was near the center of the street when the collision
occurred. In that event he must have walked in plain sight of the oncoming
machine for many feet before he arrived at the place where he was struck. He
could not have risen out of the ground nor could he have darted suddenly into
the street from a side street or door. He was walking in an open, level, and
thoroughly lighted street for many feet before he was hit by the automobile; and
the fact that the accused, under such circumstances, did not see him is strong
evidence that he was negligent.
The accused intimates in his testimony that a carromata was approaching him
just before the accident occurred and that it obscured his vision to such an
extent that he did not see that soldier until the very moment of meeting the
carromata. This story is not corroborated by any other witness in the case. No
one else speaks of the presence there of a carromata and no one offers this as
a person why the soldier was not seen in time to avoid the accident. Moreover, if
the soldier were crossing the street the carromata would have obscured him for
a moment only and there would have been abundant time to observe him before
he reached the carromata and after he had passed it. Besides, it is the duty of
automobile drivers in meeting a moving vehicle on the public streets and
highways to use due care and diligence to see to it that person who may be
crossing behind the moving vehicle are not run down by their automobiles.
There is nothing in this story of the accused which, if true, relieves from the
charge of negligence under the other facts and circumstances disclosed by the
evidence. It is to be noted, also that counsel for the accused lays no stress on
this portion of his story and does not make it the basis of an argument in his
behalf.
As we have said, the testimony and the exhibit show that the accident occurred
at or near the McKinley Junction, where there is a waiting station, a kiosko, and
a hydrant, where many persons habitually wait to transfer and where, as a
matter of fact, even up to midnight, many persons stroll about waiting for cars.
The defendant was aware of these facts. Moreover, he testified himself that the

street at that place was not level, that the rails of the street-car track made it
difficult for automobiles to cross or pass over them and that keeping to
the extreme left-hand side of the street would endanger the safety of the
automobile and the passengers. All of these are facts which require care and
diligence on the part of an automobile driver; and such a place should be
approached guardedly, with the machine under control and with ability to stop
with reasonable quickness.
It appears clearly established by the evidence that the accused was driving on
the right-hand side of the street when the accident happened. According to the
law of the road and the custom of the country he should have been on the lefthand side of the street. According to the evidence there was abundant room for
him to drive upon what may properly be called the left-hand side of the street
and still be free from danger or risk. Instead of that he chose to take what
appears from the evidence to have been almost the extreme right-hand side of
the street. Thomas M. Bill, who was a passenger in the automobile which ran
down the soldier, testified that the automobile at the time of the accident was
traveling on the right-hand side of the street. A. R. Stuart, who was driving an
automobile approaching the place of the accident from the opposite direction,
testified that the victim was struck at the point marked "A" on the plan introduced
in evidence and that the automobile was located at the point marked "B", a point
indisputably on the right-hand side of the street; that the automobile, when it
stopped after the collision, was not standing parallel with the street but at an
angle with the center line of the streets, having turned toward the left-hand side
of the street after it had continued upon what was to him the left-hand side of the
street, he would have run over the body of the soldier. The testimony showing
that the accused was driving on the right-hand side of the street is corroborated
by the fact that the witness Rabonsa, who testified on the trial that the accused
was driving on the left-hand side of the street, first declared, in his statement to
the prosecuting attorney, that, at the time of the accident, the automobile was
being driven on the right-hand side of the street.
While it is true that the law does not draw an inference of negligence from the
mere showing that there was a collision between a man and an automobile on a
public street but that negligence must be proved, nevertheless, we believe it to
be the rule that testimony that plaintiff, while driving on the right-hand side of a
wide road, was overtaken by an automobile which struck the hind wheel of his
wagon, establishes a case of negligence. (Salminen vs. Ross, 185 Fed., 997.)
And a bicyclist has the burden of disproving his negligence when he rides up
behind another who is walking where he has a right to walk and, without giving
any warning strikes him with his vehicle. (Myers vs. hinds, 110 Mich ., 300.) And
we have held in the case of Cahpman vs. Underwood (27 Phil., Rep., 374), that
where, in the an action to recover damages for having been run down by
defendant's automobile, it appeared that the automobile, at the time the injury
was produced, was being driven on the wrong side of the street, the burden of
proof was on defendant to establish that the accident occurred through other
causes than his negligence.

There is no evidence in the case which shows negligence on the part of the
injured soldier. The mere fact that he was run down by an automobile does not
signify that he was negligent. At the time he was struck he was, speaking from
the direction in which the accused was driving the automobile at the time, on the
right-hand side of the street where he had a right to be and where the law fully
protested him from vehicles traveling in the direction in which tested him from
vehicles traveling in the direction in which the accused was driving at the time of
the injury. The rule which requires travelers to look out for trains at railroad
crossings by stopping, looking and listening before they pass over the tracks
does not fix the measure of care which a pedestrian attempting to cross a street
must use in looking out for automobiles. Negligence and contributory negligence
are matters to be proved, and the burden is on the one alleging injury from
negligence to establish it and upon the other alleging immunity because of
contributory negligence to establish it, unless soldier cannot be held to have
been negligent except upon evidence establishing that fact. The beggar on his
crutches has the same right to the use of the streets of the city as has the man
in his automobile. Each is bound to the exercise of ordinary care for his own
safety and the prevention of injury to others, in the use thereof. (Millsaps vs.
Brogdon, 32 L.R.A. (N.S.), 1177.) This is especially true when we take into
consideration the assertion of the accused that, by reason of the position of the
street-car tracks, he was unable to take the left-hand side of the street, which is
the side which the law requires him to take, but that it was necessary for him to
pass in the middle of the street or a little to the right of the middle in other to
make a safe passage for the automobile and its passengers. We have held in
the case of Chapman vs. Underwood (27 Phil., Rep., 374), a case in which the
defendant's chauffeur was driving on the wrong side of the street at the time
accident, which was the basis of the action, occurred, that 'defendant's driver
was guilty of negligence in running upon and over the plaintiff. He was passing
an oncoming car upon the wrong side. The plaintiff, in coming out to board the
car, was not obliged, for his own protection, to observe whether a car was
coming upon him from his left hand. He had only to guard against those coming
from the right. he knew that, according to the law of the road, no automobile or
other vehicle coming from his left hand should pass upon his side of the car. He
needed only to watch for cars coming from his right, as they were the only ones
under the law permitted to pass upon that side of the street car."
We regard it as clear from the record that the accused was driving much faster
than he claims he was or else he was negligent in not watching the street for
foot passengers, or in the handing of hid automobile. It is a matter of common
knowledge that an automobile being driven at 10 miles an hour can be stopped
if, necessity requires it, within 10 or 15 feet at the most. That rate of speed is
extremely low for an automobile and , with such a sped, it can be stopped
almost instantly. If, therefore, the accused was going at the rate of 10 miles an
hour only and saw the soldiers 20 feet ahead of him, he could, without difficulty,
have stopped the automobile and avoided the accident. As a necessary
consequence, the accused was either driving at a rate of speed much higher
than that stated or else he was negligent in not stopping his car. Furthermore, if

he did not see that soldier until too late to stop, the burden is on him to show
why he did not. There is something wrong when a chauffeur runs over a man
who is in plain view of the automobile for a long distance before the point of the
accident is reached. No negligence on the part of the injured person has shown.
Whichever way the case is looked at, whether from the viewpoint of the failure to
see the soldier in time to avoid the accident or failure to stop or give warning by
horn or whistle, it is clear that the learned trial court was right when it held that
the accused was guilty of negligence.
There is no competent evidence to show that the soldier was drunk at the time
of the accident; but, even if he was drunk, it is of little consequence in the
decision of this case, it not having been shown that such drunkenness
contributed to the accident. Whatever his condition he could easily have been
seen by the automobile driver if he had been vigilant, as he should have been, in
passing over the streets of a city and especially in passing a place where many
used by people on foot. It is not shown that the soldier's drunkenness, if he was
in that state, any degree contributed to the accident or that the accident would
have been avoided if he had been sober. We have held in the case of Wright vs.
Manila Electric Railroad and Light Co. (28 Phil., Rep., 122):
Mere intoxication is not negligence, nor does the mere fact of
intoxication establish a want of ordinary care. It is but a circumstance to
be considered with the other evidence tending to prove negligence. It is
the general rule that it is immaterial whether a man is drunk or if no want
of ordinary care or prudence can be imputed to him, and no greater
degree of care is required to be exercised by an intoxicated man for his
own protection than by a sober one. If one's conduct is characterized by
a proper degree of care and prudence, it is immaterial whether he is
drunk or sober. (Ward vs. Chicago etc. Ry. Co., 85 Wios., 601; Houston
and T.C. Ry. Ry. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen,
402; Central R. and Bkg. Co. vs. Phinazee, 93 Ga., 488; Maguire vs.
Middlesex R. Co., 115 Mass., 239; Meyer vs. Pacific R.R. Co., 40 Mo.,
151; Chicago and N.W. Ry. Co. vs. Drake, 33 III. App., 114.)
The judgment appealed from is affirmed, with costs against the appellant. So
ordered.

G.R. Nos. 74387-90

November 14, 1988

BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO

PON, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE
PAMFILO, THE HEIRS OF NORMA NERI, and BAYLON SALES and NENA
VDA. DE ROSALES, respondents.
Sibal, Custodia, Santos & Nofuente for petitioners.
Restituto L. Opis for respondents Pamfilos and Rosaleses.
Citizens Legal Assistance Office for N. Neri and Baylon Sales.
PARAS, J.:
Before Us is a Petition to Review by Certiorari, the decision 1 of the respondent
appellate court which affirmed with modification the joint decision of the trial
court in four (4) cases involving similar facts and issues, finding favorably for the
plaintiffs (private respondents herein), the dispositive portion of said appellate
judgment reading as follows:

WHEREFORE, with the modification that the death indemnity is

raised to P30,000.00 to each set of the victims' heirs, the rest of
the judgment appealed from is hereby affirmed in toto. Costs
against the defendants-appellants.
SO ORDERED. (p. 20, Rollo)
From the records of the case We have gathered the following antecedent facts:
The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus
Company (BLTB, for brevity) driven by Armando Pon and Bus No. 404 of
Superlines Transportation Company (Superlines, for brevity) driven by Ruben
Dasco took place at the highway traversing Barangay Isabong, Tayabas,
Quezon in the afternoon of August 11, 1978, which collision resulted in the death
of Aniceto Rosales, Francisco Pamfilo and Romeo Neri and in several injuries to
Nena Rosales (wife of Anecito) and Baylon Sales, all passengers of the BLTB
Bus No. 1046. The evidence shows that as BLTB Bus No. 1046 was negotiating
the bend of the highway, it tried to overtake a Ford Fiera car just as Bus No. 404
of Superlines was coming from the opposite direction. Seeing thus, Armando
Pon (driver of the BLTB Bus) made a belated attempt to slacken the speed of his
bus and tried to return to his proper lane. It was an unsuccessful try as the two
(2) buses collided with each other.
Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the
deceased Francisco Pamfilo, Aniceto Rosales and Romeo Neri instituted
separate cases in the Court of First Instance of Marinduque against BLTB and
Superlines together with their respective drivers praying for damages, attorney's
fees and litigation expenses plus costs. Criminal cases against the drivers of the
two buses were filed in the Court of First Instance of Quezon.
Defendants BLTB and Superlines, together with their drivers Pon and Dasco,
denied liability by claiming that they exercised due care and diligence and
shifted the fault, against each other. They all interposed counterclaims against
the plaintiffs and crossclaims against each other.
After trial on the merits, the lower court exonerated defendants Superlines and
its driver Dasco from liability and attributed sole responsibility to defendants
BLTB and its driver Pon, and ordered them jointly and severally to pay damages
to the plaintiffs. Defendants BLTB and Armando Pon appealed from the decision
of the lower court to respondent appellate court which affirmed with modification
the judgment of the lower court as earlier stated.
Hence, this petition to review by certiorari of defendant BLTB assigning a lone
error, to wit:

THE INTERMEDIATE APPELLATE COURT ERRED IN

ADJUDGING
THAT
THE
ACTIONS
OF
PRIVATE
RESPONDENTS ARE BASED ON CULPA CONTRACTUAL. (p.
12, Rollo)
It is argued by petitioners that if the intention of private respondents were to file
an action based on culpa contractual or breach of contract of carriage, they
could have done so by merely impleading BLTB and its driver Pon. As it was in
the trial court, private respondents filed an action against all the defendants
basing their action on culpa aquiliana or tort.
Petitioners' contentions deserve no merit. A reading of the respondent court's
decision shows that it anchored petitioners' liability both on culpa contractual
and culpa aquiliana, to wit:
The proximate cause of the collision resulting in the death of
three and injuries to two of the passengers of BLTB was the
negligence of the driver of the BLTB bus, who recklessly
operated and drove said bus by overtaking a Ford Fiera car as
he was negotiating the ascending bend of the highway (tsn,
October 4, 1979, pp. 9-10, 35, 36, 61; Exhibit 6 Superlines, p.
47) which was divided into two lanes by a continuous yellow
strip (tsn, October 4, 1979, p. 36). The driver of the BLTB bus
admitted in his cross-examination that the continuous yellow
line on the ascending bend of the highway signifies a noovertaking zone (tsn, October 4, 1979, p. 36). It is no surprise
then that the driver of the Superlines bus was exonerated by the
lower court. He had a valid reason to presuppose that no one
would overtake in such a dangerous situation. These facts show
that patient imprudence of the BLTB driver.
It is well settled that a driver abandoning his proper lane for the
purpose of overtaking another vehicle in ordinary situation has
the duty to see that the road is clear and not to proceed if he
can not do so in safety (People v. Enriquez, 40 O.G. No. 5,
984).
... Before attempting to pass the vehicle ahead, the rear driver
must see that the road is clear and if there is no sufficient room
for a safe passage, or the driver ahead does not turn out so as
to afford opportunity to pass, or if, after attempting to pass, the
driver of the overtaking vehicle finds that he cannot make the
passage in safety, the latter must slacken his speed so as to
avoid the danger of a collision, even bringing his car to a stop if
necessary. (3-4 Huddy Encyclopedia of Automobile Law, Sec.
212, p. 195).

The above rule becomes more particularly applicable in this

case when the overtaking took place on an ascending curved
highway divided into two lanes by a continuous yellow line.
Appellant Pon should have remembered that:
When a motor vehicle is approaching or rounding a curve there
is special necessity for keeping to the right side of the road and
the driver has not the right to drive on the left hand side relying
upon having time to turn to the right if a car is approaching from
the opposite direction comes into view. (42 C.J. 42 906).
Unless there is proof to the contrary, it is presumed that a
person driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation. (Art. 2165,
Civil Code).
In failing to observe these simple precautions, BLTB's driver
undoubtedly failed to act with the diligence demanded by the
circumstances.
We now come to the subject of liability of the appellants.
For his own negligence in recklessly driving the truck owned by
his employer, appellant Armando Pon is primarily liable (Article
2176, Civil Code).<re||an1w>
On the other hand the liability of Pon's employer, appellant
BLTB, is also primary, direct and immediate in view of the fact
that the death of or injuries to its passengers was through the
negligence of its employee (Marahan v. Mendoza, 24 SCRA
888, 894), and such liability does not cease even upon proof
that BLTB had exercised all the diligence of a good father of a
family in the selection and supervision of its employees (Article
1759, Civil Code).
The common carrier's liability for the death of or injuries to its
passengers is based on its contractual obligation to carry its
passengers safely to their destination. That obligation is so
serious that the Civil Code requires "utmost diligence of very
cautious person (Article 1755, Civil Code). They are presumed
to have been at fault or to have acted negligently unless they
prove that they have observed extraordinary diligence" (Article
1756, Civil Code). In the present case, the appellants have
failed to prove extraordinary diligence. Indeed, this legal
presumption was confirmed by the fact that the bus driver of

BLTB was negligent. It must follow that both the driver and the
owner must answer for injuries or death to its passengers.
The liability of BLTB is also solidarily with its driver (Viluan v.
Court of Appeals, 16 SCRA 742, 747) even though the liability of
the driver springs from quasi delict while that of the bus
company from contract. (pp. 17-19, Rollo)
Conclusively therefore in consideration of the foregoing findings of the
respondent appellate court it is settled that the proximate cause of the collision
resulting in the death of three and injuries to two of the passengers of BLTB was
the sole negligence of the driver of the BLTB Bus, who recklessly operated and
drove said bus in a lane where overtaking is not allowed by Traffic Rules and
Regulations. Such negligence and recklessness is binding against petitioner
BLTB, more so when We consider the fact that in an action based on a contract
of carriage, the court need not make an express finding of fault or negligence on
the part of the carrier in order to hold it responsible for the payment of the
damages sought by the passenger. By the contract of carriage, the carrier BLTB
assumed the express obligation to transport the passengers to their destination
safely and to observe extraordinary diligence with a due regard for all the
circumstances, and any injury that might be suffered by its passengers is right
away attributable to the fault or negligence of the carrier (Art. 1756, New Civil
Code).
Petitioners also contend that "a common carrier is not an absolute insurer
against all risks of travel and are not liable for acts or accidents which cannot be
foreseen or inevitable and that responsibility of a common carrier for the safety
of its passenger prescribed in Articles 1733 and 1755 of the New Civil Code is
not susceptible of a precise and definite formulation." (p. 13, Rollo) Petitioners'
contention holds no water because they had totally failed to point out any factual
basis for their defense of force majeure in the light of the undisputed fact that the
cause of the collision was the sole negligence and recklessness of petitioner
Armando Pon. For the defense offorce majeure or act of God to prosper the
accident must be due to natural causes and exclusively without human
intervention.
WHEREFORE, premises considered, the appealed decision is hereby
AFFIRMED.
SO ORDERED.

G.R. No. 118889

March 23, 1998

FGU INSURANCE CORPORATION, petitioner,

vs.
COURT OF APPEALS, FILCAR TRANSPORT, INC., and FORTUNE
INSURANCE CORPORATION,respondents.
BELLOSILLO, J.:
For damages suffered by a third party, may an action based on quasidelict prosper against a rent-a-car company and, consequently, its insurer for
fault or negligence of the car lessee in driving the rented vehicle?
This was a two-car collision at dawn. At around 3 o'clock of 21 April 1987, two
(2) vehicles, both Mitsubishi Colt Lancers, cruising northward along Epifanio de
los Santos Avenue, Mandaluyong City, figured in a traffic accident. The car
bearing Plate No. PDG 435 owned by Lydia F. Soriano was being driven at the
outer lane of the highway by Benjamin Jacildone, while the other car, with Plate
No. PCT 792, owned by respondent FILCAR Transport, Inc. (FILCAR), and
driven by Peter Dahl-Jensen as lessee, was at the center lane, left of the other
vehicle. Upon approaching the corner of Pioneer Street, the car owned by
FILCAR swerved to the right hitting the left side of the car of Soriano. At that

time Dahl-Jensen, a Danish tourist, did not possess a Philippine driver's

license. 1

suffered by the other vehicle his personal liability. Respondent FILCAR did not
have any participation therein.

As a consequence, petitioner FGU Insurance Corporation, in view of its

insurance contract with Soriano, paid the latter P25,382.20. By way of
subrogation,2 it sued Dahl-Jensen and respondent FILCAR as well as
respondent Fortune Insurance Corporation (FORTUNE) as insurer of FILCAR
for quasi-delict before the Regional Trial Court of Makati City.

Article 2180 of the same Code which deals also with quasi-delict provides:
The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons
for whom one is responsible.

Unfortunately, summons was not served on Dahl-Jensen since he was no longer

staying at his given address; in fact, upon motion of petitioner, he was dropped
from the complaint.

The father and, in case of his death or incapacity, the mother,

are responsible for the damages caused by the minor children
who live in their company.

On 30 July 1991 the trial court dismissed the case for failure of petitioner to
substantiate its claim of subrogation.3

Guardians are liable for damages caused by the minors or

incapacitated persons who are under their authority and live in
their company.

On 31 January 1995 respondent Court of Appeals affirmed the ruling of the trial
court although based on another ground, i.e., only the fault or negligence of
Dahl-Jensen was sufficiently proved but not that of respondent FILCAR. 4 In
other words, petitioner failed to establish its cause of action for sum of money
based on quasi-delict.

The owners and managers of an establishment or enterprise

are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

In this appeal, petitioner insists that respondents are liable on the strength of the
ruling in MYC-Agro-Industrial Corporation v. Vda. de Caldo5 that the registered
owner of a vehicle is liable for damages suffered by third persons although the
vehicle is leased to another.

Employers shall be liable for the damages caused by their

employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged in
any business or industry.

We find no reversible error committed by respondent court in upholding the

dismissal of petitioner's complaint. The pertinent provision is Art. 2176 of the
Civil Code which states: "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 is no pre-existing contractual relation
between the parties, is called a quasi-delict . . . . "

The State is responsible in like manner when it acts through a

special agent; but not when the damage has been caused by
the official to whom the task done properly pertains, in which
case what is provided in article 2176 shall be applicable.

To sustain a claim based thereon, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c)
connection of cause and effect between the fault or negligence of the defendant
and the damage incurred by the plaintiff.6
We agree with respondent court that petitioner failed to prove the existence of
the second requisite, i.e., fault or negligence of defendant FILCAR, because
only the fault or negligence of Dahl-Jensen was sufficiently established, not that
of FILCAR. It should be noted that the damage caused on the vehicle of Soriano
was brought about by the circumstance that Dahl-Jensen swerved to the right
while the vehicle that he was driving was at the center lane. It is plain that the
negligence was solely attributable to Dahl-Jensen thus making the damage

Lastly, teachers or heads of establishments of arts and trades

shall be liable for damages caused by their pupils and students
or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
The liability imposed by Art. 2180 arises by virtue of a presumption juris
tantum of negligence on the part of the persons made responsible thereunder,
derived from their failure to exercise due care and vigilance over the acts of
subordinates to prevent them from causing damage. 7 Yet, as correctly observed
by respondent court, Art. 2180 is hardly applicable because none of the
circumstances mentioned therein obtains in the case under consideration.

Respondent FILCAR being engaged in a rent-a-car business was only the

owner of the car leased to Dahl-Jensen. As such, there was no vinculum
juris between them as employer and employee. Respondent FILCAR cannot in
any way be responsible for the negligent act of Dahl-Jensen, the former not
being an employer of the latter.
We now correlate par. 5 of Art. 2180 with Art. 2184 of the same Code which
provides: "In motor vehicle mishap, the owner is solidarily liable with his driver, if
the former, who was in the vehicle, could have by the use of due diligence,
prevented the misfortune . . . . If the owner was not in the motor vehicle, the
provisions of article 2180 are applicable." Obviously, this provision of Art. 2184 is
neither applicable because of the absence of master-driver relationship between
respondent FILCAR and Dahl-Jensen. Clearly, petitioner has no cause of action
against respondent FILCAR on the basis of quasi-delict; logically, its claim
against respondent FORTUNE can neither prosper.
Petitioner's insistence on MYC-Agro-Industrial Corporation is rooted in a
misapprehension of our ruling therein. In that case, the negligent and reckless
operation of the truck owned by petitioner corporation caused injuries to several
persons and damage to property. Intending to exculpate itself from liability, the
corporation raised the defense that at the time of the collision it had no more
control over the vehicle as it was leased to another; and, that the driver was not
its employee but of the lessee. The trial court was not persuaded as it found that
the true nature of the alleged lease contract was nothing more than a disguise
effected by the corporation to relieve itself of the burdens and responsibilities of
an employer. We upheld this finding and affirmed the declaration of joint and
several liability of the corporation with its driver.
WHEREFORE, the petition is DENIED. The decision of respondent Court of
Appeals dated 31 January 1995 sustaining the dismissal of petitioner's
complaint by the trial court is AFFIRMED. Costs against petitioner.
SO ORDERED.