Damnum Absque Injuria or Volenti non fit injuria The doctrine of volenti non fit injuria ("to which
lenti non fit injuria ("to which a person assents is not
G.R. No. 154259 February 28, 2005
NIKKO HOTEL MANILA GARDEN and RUBY LIM, vs. ROBERTO REYES,
a.k.a. "AMAY BISAYA,"
We are dealing with a formal party in a posh, five-star hotel, for-invitation-only,
thrown for the hotels former Manager, a Japanese national. Then came a person
who was clearly uninvited (by the celebrant) and who could not just disappear
into the crowd as his face is known by many, being an actor. While he was
already spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was aware of
his presence. Ms. Lim, mindful of the celebrants instruction to keep the party
intimate, would naturally want to get rid of the "gate-crasher" in the most hush-
hush manner in order not to call attention to a glitch in an otherwise seamless
affair and, in the process, risk the displeasure of the celebrant, her former boss.
To unnecessarily call attention to the presence of Mr. Reyes would certainly
reflect badly on Ms. Lims ability to follow the instructions of the celebrant to
invite only his close friends and some of the hotels personnel. Mr. Reyes, upon
whom the burden rests to prove that indeed Ms. Lim loudly and rudely ordered
him to leave, could not offer any satisfactory explanation why Ms. Lim would do
that and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on
cross-examination, had unwittingly sealed his fate by admitting that when Ms.
Lim talked to him, she was very close. Close enough for him to kiss.
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti
non fit injuria, they cannot be made liable for damages as respondent Reyes
assumed the risk of being asked to leave (and being embarrassed and
humiliated in the process) as he was a "gate-crasher."
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking
Roberto Reyes, a.k.a. "Amay Bisaya," to leave the party where he was not
invited by the celebrant thereof thereby becoming liable under Articles 19 and
21 of the Civil Code. Parenthetically, and if Ruby Lim were so liable, whether or
not Hotel Nikko, as her employer, is solidarily liable with her.
esteemed in law as injury" ) refers to self-inflicted injury or to the consent to
injury which precludes the recovery of damages by one who has knowingly and
voluntarily exposed himself to danger, even if he is not negligent in doing so. As
formulated by petitioners, however, this doctrine does not find application to the
case at bar because even if respondent Reyes assumed the risk of being asked
to leave the party, petitioners, under Articles 19 and 21 of the New Civil Code,
were still under obligation to treat him fairly in order not to expose him to
unnecessary ridicule and shame.
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr.
Reyes and expose him to ridicule and shame, it is highly unlikely that she would
shout at him from a very close distance. Ms. Lim having been in the hotel
business for twenty years wherein being polite and discreet are virtues to be
emulated, the testimony of Mr. Reyes that she acted to the contrary does not
inspire belief and is indeed incredible. Thus, the lower court was correct in
observing that
Considering the closeness of defendant Lim to plaintiff when the request
for the latter to leave the party was made such that they nearly kissed
each other, the request was meant to be heard by him only and there
could have been no intention on her part to cause embarrassment to him.
It was plaintiffs reaction to the request that must have made the other
guests aware of what transpired between them. . .
Had plaintiff simply left the party as requested, there was no need for the
police to take him out.
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to
which he was not invited, cannot be made liable to pay for damages under
Articles 19 and 21 of the Civil Code. Necessarily, neither can her employer, Hotel
Nikko, be held liable as its liability springs from that of its employee.
Article 19, known to contain what is commonly referred to as the principle of
abuse of rights, is not a panacea for all human hurts and social grievances.
Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Elsewhere, we explained that when "a right is exercised in a manner which does
not conform with the norms enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for which the wrongdoer must be
responsible." The object of this article, therefore, is to set certain standards
which must be observed not only in the exercise of ones rights but also in the
performance of ones duties. These standards are the following: act with justice,
give everyone his due and observe honesty and good faith. Its antithesis,
necessarily, is any act evincing bad faith or intent to injure. Its elements are the
following: (1) There is a legal right or duty; (2) which is exercised in bad faith;
(3) for the sole intent of prejudicing or injuring another. When Article 19 is
violated, an action for damages is proper under Articles 20 or 21 of the Civil
Code. Article 20 pertains to damages arising from a violation of law which does
not obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to
leave. Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
Article 21 refers to acts contra bonus mores and has the following elements: (1)
There is an act which is legal; (2) but which is contrary to morals, good custom,
public order, or public policy; and (3) it is done with intent to injure.
A common theme runs through Articles 19 and 21, and that is, the act
complained of must be intentional.
As applied to herein case and as earlier discussed, Mr. Reyes has not shown that
Ms. Lim was driven by animosity against him. These two people did not know
each other personally before the evening of 13 October 1994, thus, Mr. Reyes
had nothing to offer for an explanation for Ms. Lims alleged abusive conduct
except the statement that Ms. Lim, being "single at 44 years old," had a "very
strong bias and prejudice against (Mr. Reyes) possibly influenced by her
associates in her work at the hotel with foreign businessmen." The lameness of
this argument need not be belabored. Suffice it to say that a complaint based on
Articles 19 and 21 of the Civil Code must necessarily fail if it has nothing to
recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was
likewise acceptable and humane under the circumstances. In this regard, we
cannot put our imprimatur on the appellate courts declaration that Ms. Lims act
of personally approaching Mr. Reyes (without first verifying from Mrs. Filart if
indeed she invited Mr. Reyes) gave rise to a cause of action "predicated upon
mere rudeness or lack of consideration of one person, which calls not only
protection of human dignity but respect of such dignity." Without proof of any ill-
motive on her part, Ms. Lims act of by-passing Mrs. Filart cannot amount to
abusive conduct especially because she did inquire from Mrs. Filarts companion
who told her that Mrs. Filart did not invite Mr. Reyes. If at all, Ms. Lim is guilty
only of bad judgment which, if done with good intentions, cannot amount to bad
faith.
Not being liable for both actual and moral damages, neither can petitioners Lim
and Hotel Nikko be made answerable for exemplary damages.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage
which Mr. Reyes might have suffered through Ms. Lims exercise of a legitimate
right done within the bounds of propriety and good faith, must be his to bear
alone.
G.R. No. 160273 January 18, 2008
CEBU COUNTRY CLUB, INC., SABINO R. DAPAT, RUBEN D. ALMENDRAS,
JULIUS Z. NERI, DOUGLAS L. LUYM, CESAR T. LIBI, RAMONTITO* E.
GARCIA and JOSE B. SALA vs. RICARDO F. ELIZAGAQUE
Cebu Country Club, Inc. (CCCI), petitioner, is a domestic corporation operating
as a non-profit and non-stock private membership club, having its principal
place of business in Banilad, Cebu City. Petitioners herein are members of its
Board of Directors.
Sometime in 1987, San Miguel Corporation, a special company proprietary
member of CCCI, designated respondent Ricardo F. Elizagaque, its Senior Vice
President and Operations Manager for the Visayas and Mindanao, as a special
non-proprietary member. The designation was thereafter approved by the
CCCIs Board of Directors.
In 1996, respondent filed with CCCI an application for proprietary membership.
The application was indorsed by CCCIs two (2) proprietary members, namely:
Edmundo T. Misa and Silvano Ludo.
As the price of a proprietary share was around the P5 million range, Benito
Unchuan, then president of CCCI, offered to sell respondent a share for
only P3.5 million. Respondent, however, purchased the share of a certain Dr.
Butalid for only P3 million. Consequently, on September 6, 1996, CCCI issued
Proprietary Ownership Certificate No. 1446 to respondent.
During the meetings dated April 4, 1997 and May 30, 1997 of the CCCI Board of
Directors, action on respondents application for proprietary membership was
deferred. In another Board meeting held on July 30, 1997, respondents
application was voted upon. Subsequently, or on August 1, 1997, respondent
received a letter from Julius Z. Neri, CCCIs corporate secretary, informing him
that the Board disapproved his application for proprietary membership.
On August 6, 1997, Edmundo T. Misa, on behalf of respondent, wrote CCCI a
letter of reconsideration. As CCCI did not answer, respondent, on October 7,
1997, wrote another letter of reconsideration. Still, CCCI kept silent. On
November 5, 1997, respondent again sent CCCI a letter inquiring whether any
member of the Board objected to his application. Again, CCCI did not reply.
Consequently, on December 23, 1998, respondent filed with the Regional Trial
Court (RTC), Branch 71, Pasig City a complaint for damages against petitioners.
Petitioners contend, inter alia, that the Court of Appeals erred in awarding
exorbitant damages to respondent despite the lack of evidence that they acted
in bad faith in disapproving the latters application; and in disregarding their
defense of damnum absque injuria.
The issue for our resolution is whether in disapproving respondents application
for proprietary membership with CCCI, petitioners are liable to respondent for
damages, and if so, whether their liability is joint and several.
As shown by the records, the Board adopted a secret balloting known as the
"black ball system" of voting wherein each member will drop a ball in the ballot
box. A white ball represents conformity to the admission of an applicant, while a
black ball means disapproval. Pursuant to Section 3(c), as amended, cited
above, a unanimous vote of the directors is required. When respondents
application for proprietary membership was voted upon during the Board
meeting on July 30, 1997, the ballot box contained one (1) black ball. Thus, for
lack of unanimity, his application was disapproved.
Obviously, the CCCI Board of Directors, under its Articles of Incorporation, has
the right to approve or disapprove an application for proprietary membership.
But such right should not be exercised arbitrarily. Articles 19 and 21 of the Civil
Code on the Chapter on Human Relations provide restrictions, thus:
Article 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
Article 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
In GF Equity, Inc. v. Valenzona, we expounded Article 19 and correlated it with
Article 21, thus:
This article, known to contain what is commonly referred to as the
principle of abuse of rights, sets certain standards which must be
observed not only in the exercise of one's rights but also in the
performance of one's duties. These standards are the following: to act
with justice; to give everyone his due; and to observe honesty and good
faith. The law, therefore, recognizes a primordial limitation on all rights;
that in their exercise, the norms of human conduct set forth in Article 19
must be observed. A right, though by itself legal because recognized
or granted by law as such, may nevertheless become the source of
some illegality. When a right is exercised in a manner which does
not conform with the norms enshrined in Article 19 and results in
damage to another, a legal wrong is thereby committed for which
the wrongdoer must be held responsible. But while Article 19 lays
down a rule of conduct for the government of human relations and for the
maintenance of social order, it does not provide a remedy for its violation.
 Generally, an action for damages under either Article 20 or Article 21
would be proper. (Emphasis in the original)
In rejecting respondents application for proprietary membership, we find that
petitioners violated the rules governing human relations, the basic principles to
be observed for the rightful relationship between human beings and for the
stability of social order. The trial court and the Court of Appeals aptly held that
petitioners committed fraud and evident bad faith in disapproving respondents
applications. This is contrary to morals, good custom or public policy. Hence,
petitioners are liable for damages pursuant to Article 19 in relation to Article 21
of the same Code.
It bears stressing that the amendment to Section 3(c) of CCCIs Amended By-
Laws requiring the unanimous vote of the directors present at a special or
regular meeting was not printed on the application form respondent filled and
submitted to CCCI. What was printed thereon was the original provision of
Section 3(c) which was silent on the required number of votes needed for
admission of an applicant as a proprietary member.
Petitioners explained that the amendment was not printed on the application
form due to economic reasons. We find this excuse flimsy and unconvincing.
Such amendment, aside from being extremely significant, was introduced way
back in 1978 or almost twenty (20) years before respondent filed his
application. We cannot fathom why such a prestigious and exclusive golf country
club, like the CCCI, whose members are all affluent, did not have enough money
to cause the printing of an updated application form.
It is thus clear that respondent was left groping in the dark wondering why his
application was disapproved. He was not even informed that a unanimous vote
of the Board members was required. When he sent a letter for reconsideration
and an inquiry whether there was an objection to his application, petitioners
apparently ignored him. Certainly, respondent did not deserve this kind of
treatment. Having been designated by San Miguel Corporation as a special non-
proprietary member of CCCI, he should have been treated by petitioners with
courtesy and civility. At the very least, they should have informed him why his
application was disapproved.
The exercise of a right, though legal by itself, must nonetheless be in
accordance with the proper norm. When the right is exercised arbitrarily,
unjustly or excessively and results in damage to another, a legal wrong is
committed for which the wrongdoer must be held responsible. It bears
reiterating that the trial court and the Court of Appeals held that petitioners
disapproval of respondents application is characterized by bad faith.
As to petitioners reliance on the principle of damnum absque injuria or damage
without injury, suffice it to state that the same is misplaced. In Amonoy v.
Gutierrez, we held that this principle does not apply when there is an abuse of
a persons right, as in this case.
As to the appellate courts award to respondent of moral damages, we find the
same in order. Under Article 2219 of the New Civil Code, moral damages may be
recovered, among others, in acts and actions referred to in Article 21. We
believe respondents testimony that he suffered mental anguish, social
humiliation and wounded feelings as a result of the arbitrary denial of his
application. However, the amount of P2,000,000.00 is excessive. While there is
no hard-and-fast rule in determining what would be a fair and reasonable
amount of moral damages, the same should not be palpably and scandalously
excessive. Moral damages are not intended to impose a penalty to the
wrongdoer, neither to enrich the claimant at the expense of the
defendant. Taking into consideration the attending circumstances here, we hold
that an award to respondent of P50,000.00, instead of P2,000,000.00, as moral
damages is reasonable.
Anent the award of exemplary damages, Article 2229 allows it by way of
example or correction for the public good. Nonetheless, since exemplary
damages are imposed not to enrich one party or impoverish another but to
serve as a deterrent against or as a negative incentive to curb socially
deleterious actions, we reduce the amount from P1,000,000.00 to P25,000.00
only.
On the matter of attorneys fees and litigation expenses, Article 2208 of the
same Code provides, among others, that attorneys fees and expenses of
litigation may be recovered in cases when exemplary damages are awarded and
where the court deems it just and equitable that attorneys fees and expenses of
litigation should be recovered, as in this case. In any event, however, such
award must be reasonable, just and equitable. Thus, we reduce the amount of
attorneys fees (P500,000.00) and litigation expenses (P50,000.00)
to P50,000.00 andP25,000.00, respectively.
Lastly, petitioners argument that they could not be held jointly and severally
liable for damages because only one (1) voted for the disapproval of
respondents application lacks merit.
Section 31 of the Corporation Code provides:
SEC. 31. Liability of directors, trustees or officers. Directors or trustees
who willfully and knowingly vote for or assent to patently unlawful acts of
the corporation or who are guilty of gross negligence or bad faithin
directing the affairs of the corporation or acquire any personal or
pecuniary interest in conflict with their duty as such directors, or trustees
shall be liable jointly and severally for all damages resulting therefrom
suffered by the corporation, its stockholders or members and other
persons. (Emphasis ours)
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of
the Court of Appeals in CA-G.R. CV No. 71506 are AFFIRMED with modification
in the sense that (a) the award of moral damages is reduced fromP2,000,000.00
to P50,000.00; (b) the award of exemplary damages is reduced
from P1,000,000.00 toP25,000.00; and (c) the award of attorneys fees and
litigation expenses is reduced from P500,000.00 andP50,000.00 to P50,000.00
and P25,000.00, respectively.
Contributory Negligence by the plaintiff
G.R. No. 118202 May 19, 1998
FIDEL C. CABARDO vs. THE COURT OF APPEALS and JUANITO C. RODIL
Jose Peralta was a driver of the Consolidated Industrial Gases Incorporated
(CIGI). On October 26, 1987, while driving the company's truck-tanker bearing
Plate No. NBG-925 on the southbound lane of the South Luzon Expressway, on
his way back to the CIGI office in Santa Rosa, Laguna, he met an accident.
Peralta claimed that when the truck-tanker reached Barangay San Francisco,
Bian, Laguna, a Volkswagen car suddenly took the inner lane occupied by his
truck, as a result of which he was forced to swerve to the left. This caused the
truck-tanker to veer and roll over the center island of the expressway until it fell
on its right side, lying perpendicular to the expressway with its undesirable
facing the north. With him at the time of the accident was petitioner Fidel
Cabardo who was his helper and pump operator.
Moments later, private respondent Juanito Rodil came along in a Toyota Corolla
car, bearing Plate No. DAU-124, also southbound, on the inner lane of the
highway. There was a heavy rain which affected visibility along the highway.
Rodil claimed that upon seeing the disabled vehicle on the center island, he
immediately stepped on his brakes, causing his car to swerve to the left and
slide sideways towards the truck-tanker, stopping only after it had crashed into
the underside of the truck-tanker. With private respondent was his wife
Leveminda.
Private respondent and his wife were injured. The truck-tanker driver, Jose
Peralta, was unhurt but his helper, petitioner Cabardo, suffered a fractured left
leg. He and the Rodil spouses were taken to the hospital by passing motorists.
A PNCC highway patrol team, with investigators from the Bian Integrated
National Police, arrived later at the scene of the accident. Only Peralta was there
to give a statement. The police investigators made report, on the basis of which
the accident was entered in the police blotter.
On March 1, 1988 and March 22, 1988, petitioner Fidel Cabardo and the truck
driver Jose Peralta gave their respective statements, on the basis of which a
criminal case for Reckless Imprudence resulting in Serious Physical Injuries was
filed by the Bian INP police against private respondent Juanito Rodil.
On April 12, 1988, the Rodils filed a complaint for damages against CIGI and
truck driver Jose Peralta. The case was filed in the Regional Trial Court at Santa
Cruz, Laguna, where it was docketed as Civil Case No. SC-2559.
On the other hand, petitioner Cabardo filed a complaint for damages against
private respondent Juanito Rodil in the Regional Trial Court of Malolos, Bulacan
on November 6, 1989, where the matter was docketed as Civil Case No. 639-M-
89. In his complaint, petitioner claimed that he and Peralta "were able to get out
of the vehicle unhurt" after the "truck tanker fell on its right side in the middle
portion of the center island of the [South Luzon] Expressway"; that, as he was
about to put up the early warning device, however, private respondent, driving a
Toyota Corolla in a "reckless and negligent manner . . . , bumped the truck-
tanker and hit [him] on his left leg, causing him to be thrown off balance and
lose consciousness" and that as a result, he "suffered a fractured left leg and
other injuries."
In his answer, private respondent denied having caused petitioner's injury. He
alleged that the same was sustained when the truck-tanker, driven by Jose
Peralta, fell on its side.
The Santa Cruz court found:
. . . . Letter of Instructions No. 229, which requires the installation of an
early warning devi[c]e infront [sic] and rear of a stalled vehicle, is
precisely intended to prevent fatal or serious accidents. Here, there was
that omission. While the defendant driver, attempted to show, that he
gave instructions to his helper to install the early warning devi[c]e. there
is absolutely no corroboration on this alleged fact. As a matter of fact, not
one of the several defense witnesses testified as to the existence of that
early warning device. If it existed, then it would have been presented as a
piece of evidence. Consequently, it is here clear, that the defendant
driver, was negligent when he failed to cause the installation of the early
warning device, the same of which could have warned the plaintiffs of the
stalled truck tanker on the middle of expressway island, which ordinarily
should not be staying there. In fact, there is even now a doubt as to
whether or not said truck had any early warning device.
xxx xxx xxx
Be all that as it may, however, the plaintiff driver [herein private
respondent Juanito Rodil], in this case, does not appear without a fault.
He testified that it was raining heavily and that while driving for home, he
noticed the truck tanker from about 5 to 10 meters, more or less, from
his car. When he applied his brakes, his car skidded to the left and slipped
to the right and smashed into the truck tanker. From the way his car
reacted to his application of its brakes, the plaintiff driver [Rodil], was
driving at a fast pace, because it skidded for a very long space, that of
about 5 to 10 meters, and the impact it caused on the truck tanker, was
strong. Clearly, therefore, the plaintiff driver, was driving fast, while it
was raining heavily.
On the other hand, the Malolos court likewise found private respondent
negligent:
The defendant was reckless in driving his car. This conclusion is based on
defendant's own admission, he was travelling on the left lane of the
expressway at the rate of 60 to 70 kilometers per hour despite the heavy
rain and he could hardly see an object at the distance of ten (10) meters.
The heavy rain fell between San Pedro and Bian, Laguna, according to
the defendant which is a few kilometers away from the scene of the
accident. A careful and prudent driver would slow down, put his head
lights on and transfer to the lane for slow moving vehicles. This
precaution the defendant failed to take. Instead he recklessly and
imprudently continued to drive on the left lane without regard to the
surrounding circumstances at that time.
Not a portion of the truck-tanker was protruding the asphalted portion of
the expressway, according to the police investigator. The police
investigator testified that when he arrived at the scene of the accident he
saw the truck-tanker and the car in contact inside the center island.
The defendant is liable for the injury sustained by the plaintiff even
assuming that a portion of the truck-tanker was protruding the pavement
of the expressway. The accident could have been prevented had
defendant exercised reasonable care in driving his car. He was driving
unreasonably fast even if he could hardly see an object at a distance of
ten meters. The truck-tanker was already stationary inside the center
island of the expressway. Had defendant exercised reasonable care and
prudence the accident would have been avoided and the plaintiff would
not have been injured as a consequence. The law provides that whoever
by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. . . . (Art. 2176, Civil
Code).
whether petitioner's injuries were caused by private respondent's car or whether
he was injured as a result of the fact that the truck-tanker in which he was
riding turned turtle and fell on its side.

We find the petition to be meritorious. To begin with, both the Santa Cruz court
and the court below found private respondent Juanito Rodil guilty of negligence
in running his Toyota Corolla at a high speed in driving rain with the result that
he did not see the disabled truck-tanker until it was late and thus failed to stop
his car on time.
If the court allowed recovery to private respondent, it was only because the
defendants in that case (CIGI and Peralta) were negligent in failing to install an
EWD.
Indeed, there is no question that private respondent drove his car negligently.
After reviewing the evidence in this case, we are inclined to agree with the trial
court's finding that petitioner's injuries were caused by private respondent's car.
The Court of Appeals reversed the trial court's decision on the ground that
petitioner, as plaintiff below, failed to prove that he sustained injuries as a result
of having been hit by private respondent's car and not as a result of the truck-
tanker having veered and rolled over its side. The appellate court's decision is
based mainly on alleged inconsistencies in the testimonies of petitioner and his
witness Jose Peralta.
There are indeed inconsistencies but these are minor and inconsequential. What
is important is that the statements dovetail in essential details with the
testimonies given in court: Petitioner claimed that he was unhurt after their
vehicle turned turtle and fell on its side; that he and Jose Peralta, who was
driving the vehicle, got out of the truck-tanker; that he was asked by Peralta to
put up the EWD; and that petitioner was hurt because he was hit by private
respondent's car. Petitioner said in court that he was hit while checking the
pressure gauge. It is possible that this happened before he could put up the
EWD.
It is noteworthy that at the scene of the accident, Peralta told police
investigators of the Bian Police Station that petitioner had been hit by a car
which crashed against their truck-tanker. That was shortly after the accident and
before he had time to invent a story. His statement to the police is reflected in
the entry made in the police blotter on the day of the accident, which reads:
ENTRY NR. : 8084
DATED : 26 October 1987
TIME : 2:30 P.M.
CASE : "Reckless Imprudence Resulting to Damage to Property"
(Self Accident)
On this date and time indicated above Pfc Jenario Zavalla and Pat
Antonio Enriquez of this station reported a vehicular accident that
occurred on or about 12:20 P.M., this dated at the Luzon South
Expressway, Brgy. San Francisco, this locality wherein a Cargo
Truck with Plate No. NBG-925 T Pil '86 owned by CONSOLIDATED
INDUSTRIAL GASES INCORPORATED with office address at Brgy.
Macabling, Santa Rosa, Laguna and driven by one: JOSE PERALTA y
CARUNGAN, 37 yrs old, resident of same address, holder of Prof-
DLR-8972935 was accidentally swerved to the left to avoid hitting
the volkswagen running ahead while travelling towards South
direction, simultaneously lost control of its wheel and turned side-
down which plunged at the center island of the highway.
xxx xxx xxx
ENTRY NR. : 8085
DATED : 26 October 1987
TIME : 2:30 P.M.
CASE : "Reckless Imprudence Resulting to Multiple Physical Injuries
and Damage to Property"
ICOW re-Entry No. 8084, after a couple minutes later a coming
Toyota Corolla with Plate No. DAU-124 owned and driven by
one: JUANITO RODIL y CASAS, 57 yrs old, married, Prov'l Engineer,
and residing at Villa Silangan Subd., Santa Cruz, Laguna, holder
of a NPDL-D12-66-005198 with DLR-8815262 coming from North
to South direction swerved also to the left upon seeing the
sidedown truck and applied the brakes, causing lost control of its
wheel, thereby hitting the said truck (CIGI) with Plate No. NBG-925
and the person standing thereat identified as one: FIDEL CABARDO
y CABREGA, 52 yrs old, married, helper of the truck, a resident at
Brgy. Macabling, Santa Rosa, Laguna.
 The accident resulted to the injuries of the victim, the driver of the
car and its occupant/wife as one: LEVY MINDA TAJONERA-RODIL,
47 yrs old, married, housewife are treated at Perpetual Help
Hospital, this locality and damages to the said car.
N O T E: Recorded by: P/SGT ARMANDO SALVADOR, SR. Duty
Desk Officer
(Emphasis added)
Indeed, it is more probable that petitioner's injuries were caused by private
respondent's car hitting him. First, as the Court of Appeals itself found,
petitioner was taken to a hospital in Bian, Laguna together with the Rodils. Had
he been injured earlier when the truck-tanker turned turtle, he would, in all
probability, have been taken for treatment much earlier.
Second, as the trial court observed:
The Plaintiff, as passenger of the truck-tanker was seated at the right side
of the driver. The driver did not sustain any injury. On the other hand, the
plaintiff sustained and was treated of the following injuries.
Fracture, closed, complete,
lateral tebial condyle, knee.
If the plaintiff sustained his injuries when the truck-tanker he was riding
turned turtle and landed on its right side in the center island of the
expressway, it would not have been on his left knee but in some parts of
the body, more especially on the right side that must have came in
contact with the door. This is the law of gravity, and testimony to the
contrary should not be given credence. The plaintiff was categorical in his
testimony that after the car fell on its right side the driver and he came
out of the truck and he was already looking at the gauge [sic] carrying
the EWD when the car hit him. The defendant, in contrast, did not state
categorically that his car did not hit the plaintiff. What defendant testified
was that he did not see a person hit by the car. Moreover, defendant
admitted that immediately before the accident he was driving on the left
lane at the rate of 60 to 70 kilometers per hour and he could hardly see
an object at a distance of ten (10) meters because of the heavy rain.
G.R. No. 110398 November 7, 1997
NEGROS NAVIGATION CO., INC., vs. THE COURT OF APPEALS, RAMON
MIRANDA, SPS. RICARDO and VIRGINIA DE LA VICTORIA
In April of 1980, private respondent Ramon Miranda purchased from the Negros
Navigation Co., Inc. four special cabin tickets (#74411, 74412, 74413 and
74414) for his wife, daughter, son and niece who were going to Bacolod City to
attend a family reunion. The tickets were for Voyage No. 457-A of the M/V Don
Juan, leaving Manila at 1:00 p.m. on April 22, 1980.
The ship sailed from the port of Manila on schedule.
At about 10:30 in the evening of April 22, 1980, the Don Juan collided off the
Tablas Strait in Mindoro, with the M/T Tacloban City, an oil tanker owned by the
Philippine National Oil Company (PNOC) and the PNOC Shipping and Transport
Corporation (PNOC/STC). As a result, the M/V Don Juan sank. Several of her
passengers perished in the sea tragedy. The bodies of some of the victims were
found and brought to shore, but the four members of private respondents'
families were never found.
Private respondents filed a complaint on July 16, 1980 in the Regional Trial
Court of Manila, Branch 34, against the Negros Navigation, the Philippine
National Oil Company (PNOC), and the PNOC Shipping and Transport
Corporation (PNOC/STC), seeking damages for the death of Ardita de la Victoria
Miranda, 48, Rosario V. Miranda, 19, Ramon V. Miranda, Jr., 16, and Elfreda de
la Victoria, 26.
In its answer, petitioner admitted that private respondents purchased ticket
numbers 74411, 74412, 74413 and 74414; that the ticket numbers were listed
in the passenger manifest; and that the Don Juan left Pier 2, North Harbor,
Manila on April 22, 1980 and sank that night after being rammed by the oil
tanker M/T Tacloban City, and that, as a result of the collision, some of the
passengers of the M/V Don Juan died. Petitioner, however, denied that the four
relatives of private respondents actually boarded the vessel as shown by the fact
that their bodies were never recovered. Petitioner further averred that the Don
Juan was seaworthy and manned by a full and competent crew, and that the
collision was entirely due to the fault of the crew of the M/T Tacloban City.
On January 20, 1986, the PNOC and petitioner Negros Navigation Co., Inc.
entered into a compromise agreement whereby petitioner assumed full
responsibility for the payment and satisfaction of all claims arising out of or in
connection with the collision and releasing the PNOC and the PNOC/STC from
any liability to it. The agreement was subsequently held by the trial court to be
binding upon petitioner, PNOC and PNOC/STC. Private respondents did not join
in the agreement.
Petitioner contends that the purchase of the tickets does not necessarily mean
that the alleged victims actually took the trip. Petitioner asserts that it is
common knowledge that passengers purchase tickets in advance but do not
actually use them. Hence, private respondent should also prove the presence of
the victims on the ship. The witnesses who affirmed that the victims were on the
ship were biased and unreliable.
Hence this petition, raising the following issues:
(1) whether the members of private respondents' families were actually
passengers of the Don Juan;
(3) whether the total loss of the M/V Don Juan extinguished petitioner's
liability; and
(4) whether the damages awarded by the appellate court are excessive,
unreasonable and unwarranted.
This contention is without merit. Private respondent Ramon Miranda testified
that he personally took his family and his niece to the vessel on the day of the
voyage and stayed with them on the ship until it was time for it to leave. There
is no reason he should claim members of his family to have perished in the
accident just to maintain an action. People do not normally lie about so grave a
matter as the loss of dear ones. It would be more difficult for private
respondents to keep the existence of their relatives if indeed they are alive than
it is for petitioner to show the contrary. Petitioner's only proof is that the bodies
of the supposed victims were not among those recovered from the site of the
mishap. But so were the bodies of the other passengers reported missing not
recovered, as this Court noted in the Mecenas case.
Private respondent Miranda's testimony was corroborated by Edgardo Ramirez.
Ramirez was a seminarian and one of the survivors of the collision. He testified
that he saw Mrs. Miranda and Elfreda de la Victoria on the ship and that he
talked with them. He knew Mrs. Miranda who was his teacher in the grade
school. He also knew Elfreda who was his childhood friend and townmate.
Ramirez said he was with Mrs. Miranda and her children and niece from 7:00
p.m. until 10:00 p.m. when the collision happened and that he in fact had dinner
with them. Ramirez said he and Elfreda stayed on the deck after dinner and it
was there where they were jolted by the collision of the two vessels. Recounting
the moments after the collision, Ramirez testified that Elfreda ran to fetch Mrs.
Miranda. He escorted her to the room and then tried to go back to the deck
when the lights went out. He tried to return to the cabin but was not able to do
so because it was dark and there was a stampede of passengers from the deck.
Indeed, given the facts of this case, it is improper for petitioner to even suggest
that private respondents' relatives did not board the ill-fated vessel and perish in
the accident simply because their bodies were not recovered.
Third. The next issue is whether petitioner is liable to pay damages
notwithstanding the total loss of its ship. The issue is not one of first impression.
The rule is well-entrenched in our jurisprudence that a shipowner may be held
liable for injuries to passengers notwithstanding the exclusively real and
hypothecary nature of maritime law if fault can be attributed to the shipowner.
In Mecenas, this Court found petitioner guilty of negligence in (1) allowing or
tolerating the ship captain and crew members in playing mahjong during the
voyage, (2) in failing to maintain the vessel seaworthy and (3) in allowing the
ship to carry more passengers than it was allowed to carry. Petitioner is,
therefore, clearly liable for damages to the full extent.
Fourth. Petitioner contends that, assuming that the Mecenas case applies,
private respondents should be allowed to claim only P43,857.14 each as moral
damages because in the Mecenas case, the amount of P307,500.00 was
awarded to the seven children of the Mecenas couple. Under petitioner's
formula, Ramon Miranda should receive P43,857.14, while the De la Victoria
spouses should receive P97,714.28.
Here is where the principle of stare decisis does not apply in view of differences
in the personal circumstances of the victims. For that matter, differentiation
would be justified even if private respondents had joined the private
respondents in the Mecenas case. The doctrine of stare decisis works as a bar
only against issues litigated in a previous case. Where the issue involved was
not raised nor presented to the court and not passed upon by the court in the
previous case, the decision in the previous case is not stare decisis of the
question presently presented. The decision in the Mecenas case relates to
damages for which petitioner was liable to the claimants in that case.
In the case at bar, the award of P300,000.00 for moral damages is reasonable
considering the grief petitioner Ramon Miranda suffered as a result of the loss of
his entire family. As a matter of fact, three months after the collision, he
developed a heart condition undoubtedly caused by the strain of the loss of his
family. The P100,000.00 given to Mr. and Mrs. de la Victoria is likewise
reasonable and should be affirmed.
As for the amount of civil indemnity awarded to private respondents, the
appellate court's award of P50,000.00 per victim should be sustained. The
amount of P30,000.00 formerly set in De Lima v. Laguna Tayabas Co., Heirs of
Amparo delos Santos v. Court of Appeals, and Philippine Rabbit Bus Lines,
Inc. v. Intermediate Appellate Court as benchmark was subsequently increased
to P50,000.00 in the case of Sulpicio Lines, Inc. v. Court of Appeals, which
involved the sinking of another interisland ship on October 24, 1988.
We now turn to the determination of the earning capacity of the victims. With
respect to Ardita Miranda, the trial court awarded damages computed as
follows:
In the case of victim Ardita V. Miranda whose age at the time of the
accident was 48 years, her life expectancy was computed to be 21.33
years, and therefore, she could have lived up to almost 70 years old. Her
gross earnings for 21.33 years based on P10,224.00 per annum, would be
P218,077.92. Deducting therefrom 30% as her living expenses, her net
earnings would be P152,654.55, to which plaintiff Ramon Miranda is
entitled to compensatory damages for the loss of earning capacity of his
wife. In considering 30% as the living expenses of Ardita Miranda, the
Court takes into account the fact that plaintiff and his wife were
supporting their daughter and son who were both college students taking
Medicine and Law respectively.
In accordance with the ruling in Villa-Rey Transit, Inc. v. Court of Appeals, we
think the life expectancy of Ardita Miranda was correctly determined to be 21.33
years, or up to age 69. Petitioner contends, however, that Mrs. Miranda would
have retired from her job as a public school teacher at 65, hence her loss of
earning capacity should be reckoned up to 17.33 years only.
The accepted formula for determining life expectancy is 2/3 multiplied by (80
minus the age of the deceased). It may be that in the Philippines the age of
retirement generally is 65 but, in calculating the life expectancy of individuals
for the purpose of determining loss of earning capacity under Art. 2206(1) of the
Civil Code, it is assumed that the deceased would have earned income even
after retirement from a particular job. In this case, the trial court took into
account the fact that Mrs. Miranda had a master's degree and a good prospect of
becoming principal of the school in which she was teaching. There was reason to
believe that her income would have increased through the years and she could
still earn more after her retirement, e.g., by becoming a consultant, had she not
died. The gross earnings which Mrs. Miranda could reasonably be expected to
earn were it not for her untimely death was, therefore, correctly computed by
the trial court to be P218,077.92 (given a gross annual income of P10,224.00
and life expectancy of 21.33 years).
Petitioner contends that from the amount of gross earnings, 60% should be
deducted as necessary living expenses, not merely 30% as the trial court
allowed. Petitioner contends that 30% is unrealistic, considering that Mrs.
Miranda's earnings would have been subject to taxes, social security deductions
and inflation.
We agree with this contention. In Villa-Rey Transit, Inc. v. Court of Appeals, the
Court allowed a deduction of P1,184.00 for living expenses from the P2,184.00
annual salary of the victim, which is roughly 54.2% thereof. The deceased was
29 years old and a training assistant in the Bacnotan Cement Industries.
In People v. Quilation, the deceased was a 26-year old laborer earning a daily
wage. The court allowed a deduction of P120,000.00 which was 51.3% of his
annual gross earnings of P234,000.00. In People v. Teehankee, the court
allowed a deduction of P19,800.00, roughly 42.4% thereof from the deceased's
annual salary of P46,659.21. The deceased, Maureen Hultman, was 17 years old
and had just received her first paycheck as a secretary. In the case at bar, we
hold that a deduction of 50% from Mrs. Miranda's gross earnings (P218,077.92)
would be reasonable, so that her net earning capacity should be P109,038.96.
There is no basis for supposing that her living expenses constituted a smaller
percentage of her gross income than the living expenses in the decided cases.
To hold that she would have used only a small part of her income for herself, a
larger part going to the support of her children would be conjectural and
unreasonable.
As for Elfreda de la Victoria, the trial court found that, at the time of her death,
she was 26 years old, a teacher in a private school in Malolos, Bulacan, earning
P6,192.00 per annum. Although a probationary employee, she had already been
working in the school for two years at the time of her death and she had a
general efficiency rating of 92.85% and it can be presumed that, if not for her
untimely death, she would have become a regular teacher. Hence, her loss of
earning capacity is P111,456.00, computed as follows:
net earning = life x gross less reasonable
capacity (x) expectancy annual & necessary
income living expenses
(50%)
x = [2(80-26)] x [P6,192.00 - P3,096.00]
3 The award of exemplary damages should be increased to P300,000.00 for
= 36 x 3,096.00
= P111,456.00
On the other hand, the award of actual damages in the amount of P23,075.00
was determined by the Court of Appeals on the basis receipts submitted by
private respondents. This amount is reasonable considering the expenses
incurred by private respondent Miranda in organizing three search teams to look
for his family, spending for transportation in going to places such as Batangas
City and Iloilo, where survivors and the bodies of other victims were found,
making long distance calls, erecting a monument in honor of the four victims,
spending for obituaries in the Bulletin Today and for food, masses and novenas.
Petitioner's contention that the expenses for the erection of a monument and
other expenses for memorial services for the victims should be considered
included in the indemnity for death awarded to private respondents is without
merit. Indemnity for death is given to compensate for violation of the rights of
the deceased, i.e., his right to life and physical integrity. On the other hand,
damages incidental to or arising out of such death are for pecuniary losses of
the beneficiaries of the deceased.
As for the award of attorney's fees, we agree with the Court of Appeals that the
amount of P40,000.00 for private respondent Ramon Miranda and P15,000.00
for the de la Victoria spouses is justified. The appellate court correctly held:
The Mecenas case cannot be made the basis for determining the award
for attorney's fees. The award would naturally vary or differ in each case.
While it is admitted that plaintiff-appellee Ramon Miranda who is himself a
lawyer, represented also plaintiffs-appellees Dela Victoria spouses, we
note that separate testimonial evidence were adduced by plaintiff-
appellee Ramon Miranda (TSN, February 26, 1982, p. 6) and plaintiffs-
appellees spouses Dela Victoria (TSN, August 13, 1981, p. 43).
Considering the amount of work and effort put into the case as indicated
by the voluminous transcripts of stenographic notes, we find no reason to
disturb the award of P40,000.00 for plaintiff-appellee Ramon Miranda and
P15,000.00 for plaintiffs-appellees Dela Victoria spouses.
Ramon Miranda and P100,000.00 for the de la Victoria spouses in accordance
with our ruling in the Mecenas case:
Exemplary damages are designed by our civil law to permit the courts to
reshape behaviour that is socially deleterious in its consequence by
creating negative incentives or deterrents against such behaviour. In
requiring compliance with the standard of extraordinary diligence, a
standard which is in fact that of the highest possible degree of diligence,
from common carriers and in creating a presumption of negligence
 against them, the law seeks to compel them to control their employees,
to tame their reckless instincts and to force them to take adequate care of
human beings and their property. The Court will take judicial notice of the
dreadful regularity with which grievous maritime disasters occur in our
waters with massive loss of life. The bulk of our population is too poor to
afford domestic air transportation. So it is that notwithstanding the
frequent sinking of passenger vessels in our waters, crowds of people
continue to travel by sea. This Court is prepared to use the instruments
given to it by the law for securing the ends of law and public policy. One
of those instruments is the institution of exemplary damages; one of
those ends, of special importance in an archipelagic state like the
Philippines, is the safe and reliable carriage of people and goods by sea.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with modification
and petitioner is ORDERED to pay private respondents damages
In the event the Philippine National Oil Company and/or the PNOC Shipping and
Transport Corporation pay or are required to pay all or a portion of the amounts
adjudged, petitioner Negros Navigation Co., Inc. shall reimburse either of them
such amount or amounts as either may have paid, and in the event of failure of
Negros Navigation Co., Inc., to make the necessary reimbursement, PNOC
and/or PNOC/STC shall be entitled to a writ of execution without need of filing
another action.
SO ORDERED.
Doctrine of last clear chance
G.R. No. L-12219 March 15, 1918
AMADO PICART vs. FRANK SMITH, JR
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.
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.

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-21291 March 28, 1969
PRECIOLITA V. CORLISS, vs. THE MANILA RAILROAD CO.
In December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21
years of age, ...; that Corliss Jr. was an air police of the Clark Air Force Base;
that at the time of the accident, he was driving the fatal jeep; that he was then
returning in said jeep, together with a P.C. soldier, to the Base; and that Corliss
Jr. died of serious burns at the Base Hospital the next day, while the soldier
sustained serious physical injuries and burns."
"Ronald J. Ennis, a witness of the plaintiff, substantially declared in his
deposition, ..., that at the time of the accident, he also awaiting transportation
at the entrance of Clark Field, which was about 40 to 50 yards away from the
tracks and that while there he saw the jeep coming towards the Base. He said
that said jeep slowed down before reaching the crossing, that it made a brief
stop but that it did not stop dead stop. Elaborating, he declared that while it
was slowing down, Corliss Jr. shifted into first gear and that was what he meant
by a brief stop. He also testified that he could see the train coming from the
direction of San Fernando and that he heard a warning but that it was not
sufficient enough to avoid the accident." Also: "Virgilio de la Paz, another
witness of the plaintiff, testified that on the night of February 21, 1957, he was
at the Balibago checkpoint and saw the train coming from Angeles and a jeep
going towards the direction of Clark Field. He stated that he heard the whistle of
the locomotive and saw the collision. The jeep, which caught fire, was pushed
forward. He helped the P.C. soldier. He stated that he saw the jeep running fast
and heard the tooting of the horn. It did not stop at the railroad crossing,
according to him."
After which reference was made to the testimony of the main witness for
defendant-appellee, Teodorico Capili, "who was at the engine at the time of the
mishap," and who "testified that before the locomotive, which had been
previously inspected and found to be in good condition approached, the
crossing, that is, about 300 meters away, he blew the siren and repeated it in
compliance with the regulations until he saw the jeep suddenly spurt and that
although the locomotive was running between 20 and 25 kilometers an hour and
although he had applied the brakes, the jeep was caught in the middle of the
tracks."
Thus, in Smith v. Cadwallader Gibson Lumber Co., Manresa was cited to the
following effect "'Among the questions most frequently raised and upon which
the majority of cases have been decided with respect to the application of this
liability, are those referring to the determination of the damage or prejudice,
and to the fault or negligence of the person responsible therefor. These are the
two indispensable factors in the obligations under discussion, for without
damage or prejudice there can be no liability, and although this element is
present no indemnity can be awarded unless arising from some person's fault or
negligence'."
Negligence was defined by us in two 1912 decisions, United States v.
Juanillo and United States v. Barias. Cooley' formulation was quoted with
approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in his
work on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to
observe for the protection of the interests of another person that degree of care,
precaution and vigilance which the circumstance justly demand whereby such
other person suffers injury." There was likewise a reliance on Ahern v. Oregon
Telephone Co. Thus: "Negligence is want of the care required by the
circumstances. It is a relative or comparative, not an absolute term and its
application depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the danger is
great, a high degree of care is necessary, and the failure to observe it is a want
of ordinary care under the circumstances."
To repeat, by such a test, no negligence could be imputed to defendant-
appellee, and the action of plaintiff-appellee must necessary fail. The facts being
what they are, compel the conclusion that the liability sought to be fastened on
defendant-appellee had not arisen.
The first two assigned errors would make much of the failure of the lower court
to hold that the crossing bars not having been put down and there being no
guard at the gate-house, there still was a duty on the part of Corliss to stop his
jeep to avoid a collision and that Teodorico Capili, who drove the engine, was
not qualified to do so at the time of the accident. For one cannot just single out
circumstance and then confidently assign to it decisive weight and significance.
Considered separately, neither of the two above errors assigned would call for a
judgment different in character. Nor would a combination of acts allegedly
impressed with negligence suffice to alter the result. The quantum of proof
required still not been met. The alleged errors fail of their said effect. The case
for plaintiff-appellant, such as it had not been improved. There is no justification
for reversing the judgment of the lower court.
In this particular case, it would be to show less than fidelity to the controlling
facts to impute negligence to defendant-appellee. The first three errors assigned
certainly do not call for that conclusion.
4. The fourth assigned error is deserving of a more extended treatment.
Plaintiff-appellant apparently had in mind this portion of the opinion of the lower
court: "The weight of authorities is to the effect that a railroad track is in itself a
warning or a signal of danger to those who go upon it, and that those who, for
reasons of their own, ignore such warning, do so at their own risk and
responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint
frequently, if not daily, must have known that locomotive engines and trains
usually pass at that particular crossing where the accident had taken place."
Her assignment of error, however, would single out not the above excerpt from
the decision appealed from but what to her is the apparent reliance of the lower
court on Mestres v. Manila Electric Railroad & Light Co. and United States v.
Manlabat & Pasibi. In the Manabat case, the doctrine announced by this Court
follows: "A person in control of an automobile who crosses a railroad, even at a
regular road crossing, and who does not exercise that precaution and that
control over it as to be able to stop the same almost immediately upon the
appearance of a train, is guilty of criminal negligence, providing a collision
occurs and injury results. Considering the purposes and the general methods
adopted for the management of railroads and railroad trains, we think it is
incumbent upon one approaching a railroad crossing to use all of his faculties of
seeing and hearing. He should approach a railroad crossing cautiously and
carefully. He should look and listen and do everything that a reasonably prudent
man would do before he attempts to cross the track." The Mestres doctrine in a
suit arising from a collision between an automobile and a street car is
substantially similar. Thus: "It may be said, however, that, where a person is
nearing a street crossing toward which a car is approaching, the duty is on the
party to stop and avoid a collision who can most readily adjust himself to the
exigencies of the case, and where such person can do so more readily, the
motorman has a right to presume that such duty will be performed."
What Justice Cardozo announced would merely emphasize what was set forth
earlier that each and every, case on questions of negligence is to be decided in
accordance with the peculiar circumstances that present themselves. There can
be no hard and fast rule. There must be that observance of that degree of care,
precaution, and vigilance which the situation demands. Thus defendant-appellee
acted. It is undeniable then that no negligence can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at by the lower
court: "Predicated on the testimonies of the plaintiff's witnesses, on the
knowledge of the deceased and his familiarity with the setup of the checkpoint,
the existence of the tracks; and on the further fact that the locomotive had
blown its siren or whistle, which was heard by said witnesses, it is clear that
Corliss Jr. was so sufficiently warned in advance of the oncoming train that it
was incumbent upon him to avoid a possible accident and this consisted
simply in stopping his vehicle before the crossing and allowing the train to move
on. A prudent man under similar circumstances would have acted in this
manner. This, unfortunately, Corliss, Jr. failed to do."
WHEREFORE, the decision of the lower court of November 29, 1962 dismissing
the complaint, is affirmed. Without pronouncement as to costs.
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC. vs. COURT OF
APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN
This case had its inception in an action for damages instituted in the former
Court of First Instance of Negros Occidental 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.
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. 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. 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.
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.
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. 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. It is basic that private respondents cannot charge PLDT
for their injuries where their own failure to exercise due and reasonable care
was the cause thereof. It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection. Furthermore,
respondent Antonio Esteban had the last clear chance or opportunity to avoid
the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a
resident of Lacson Street, he passed on that street almost everyday and had
knowledge of the presence and location of the excavations there. It was his
negligence that exposed him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its
original decision that there was insufficient evidence to prove any negligence on
the part of PLDT. We have for consideration only the self-serving testimony of
respondent Antonio Esteban and the unverified photograph of merely a portion
of the scene of the accident. The absence of a police report of the incident and
the 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.
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. 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.
G.R. No. 153076 June 21, 2007
LAPANDAY AGRICULTURAL and DEVELOPMENT CORPORATION
(LADECO), HENRY BERENGUEL, and APOLONIO R. DEOCAMPO vs.
MICHAEL RAYMOND ANGALA
On 4 May 1993, at about 2:45 p.m., a Datsun crewcab with plate no. PEC-903
driven by Apolonio Deocampo (Deocampo) bumped into a 1958 Chevy pick-up
with plate no. MAM-475 owned by Michael Raymond Angala (respondent) and
driven by Bernulfo Borres (Borres). Lapanday Agricultural and Development
Corporation (LADECO) owned the crewcab which was assigned to its manager
Manuel Mendez (Mendez). Deocampo was the driver and bodyguard of Mendez.
Both vehicles were running along Rafael Castillo St., Agdao, Davao City heading
north towards Lanang, Davao City. The left door, front left fender, and part of
the front bumper of the pick-up were damaged.
Respondent filed an action for Quasi-Delict, Damages, and Attorneys Fees
against LADECO, its administrative officer Henry Berenguel 4 (Berenguel) and
Deocampo. Respondent alleged that his pick-up was slowing down to about five
to ten kilometers per hour (kph) and was making a left turn preparatory to
turning south when it was bumped from behind by the crewcab which was
running at around 60 to 70 kph. The crewcab stopped 21 meters from the point
of impact. Respondent alleged that he heard a screeching sound before the
impact. Respondent was seated beside the driver and was looking at the
speedometer when the accident took place. Respondent testified that Borres
made a signal because he noticed a blinking light while looking at the
speedometer.
Respondent sent a demand letter to LADECO for the payment of the damages he
incurred because of the accident but he did not receive any reply. Thus,
respondent filed the case against LADECO, Berenguel, and Deocampo.
The trial court found that the crewcab was running very fast while following the
pick-up and that the crewcabs speed was the proximate cause of the accident.
The trial court observed that the crewcab stopped 21 meters away from the
point of impact despite Deocampos claim that he stepped on the brakes
moments after the collision. The trial court ruled that Deocampo had the last
opportunity to avoid the accident.
The Court of Appeals sustained the finding of the trial court that Deocampo was
negligent. The Court of Appeals applied the doctrine of last clear chance and
ruled that Deocampo had the responsibility of avoiding the pick-up.
The Court of Appeals also sustained the solidary liability of LADECO and
Deocampo. The Court of Appeals ruled that under Article 2180 of the Civil Code,
the negligence of the driver is presumed to be the negligence of the owner of
the vehicle.
Hence, the petition before this Court.
Both the trial court and the Court of Appeals found that Deocampo was at fault
because he was driving very fast prior to the collision. The Court of Appeals
sustained the trial courts finding that Deocampo was running more than the
normal cruising speed. Both the trial court and the Court of Appeals noted that
the crewcab stopped 21 meters away from the point of impact. Deocampo
admitted that he stepped on the brakes only after the collision.
Petitioners allege that Borres did not take the proper lane before executing the
U-turn. Petitioners allege that Borres violated Section 45(b) of RA 4136 and it
was his recklessness that was the proximate cause of the accident.
Petitioners further allege that since Borres was violating a traffic rule at the time
of the accident, respondent and Borres were the parties at fault. Petitioners cite
Article 2185 of the Civil Code
The Issues
The issues before the Court are the following:
1. Whether the provisions of Section 45(b) of Republic Act No. 4136 (RA
4136) and Article 2185 of the Civil Code apply to this case; and
2. Whether respondent is entitled to the damages awarded.
The Ruling of this Court
The petition is partly meritorious.
Both Drivers are Negligent
Section 45(b) of RA 4136 states:
Sec. 45. Turning at intersections. x x x
(b) The driver of a vehicle intending to turn to the left shall approach such
intersection in the lane for traffic to the right of and nearest to the center
line of the highway, and, in turning, shall pass to the left of the center of
the intersection, except that, upon highways laned for traffic and upon
one-way highways, a left turn shall be made from the left lane of traffic in
the direction in which the vehicle is proceeding.
Article 2185 of the Civil Code, thus:
Art. 2185. 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.
We rule that both parties were negligent in this case. Borres was at the outer
lane when he executed a U-turn. Following Section 45(b) of RA 4136, Borres
should have stayed at the inner lane which is the lane nearest to the center of
the highway. However, Deocampo was equally negligent. Borres slowed down
the pick-up preparatory to executing the U-turn. Deocampo should have also
slowed down when the pick-up slowed down. Deocampo admitted that he
noticed the pick-up when it was still about 20 meters away from him. Vehicular
traffic was light at the time of the incident. The pick-up and the crewcab were
the only vehicles on the road. Deocampo could have avoided the crewcab if he
was not driving very fast before the collision. Further, the crewcab stopped 21
meters from the point of impact. It would not have happened if Deocampo was
not driving very fast.
Doctrine of Last Clear Chance Applies
Since both parties are at fault in this case, the doctrine of last clear chance
applies.
The doctrine of last clear chance states that where both parties are negligent but
the negligent act of one is appreciably later than that of the other, or where it is
impossible to determine whose fault or negligence caused the loss, the one who
had the last clear opportunity to avoid the loss but failed to do so is chargeable
with the loss.16 In this case, Deocampo had the last clear chance to avoid the
collision. Since Deocampo was driving the rear vehicle, he had full control of the
situation since he was in a position to observe the vehicle in front of
him.17Deocampo had the responsibility of avoiding bumping the vehicle in front
of him.18 A U-turn is done at a much slower speed to avoid skidding and
overturning, compared to running straight ahead. 19 Deocampo could have
avoided the vehicle if he was not driving very fast while following the pick-up.
Deocampo was not only driving fast, he also admitted that he did not step on
the brakes even upon seeing the pick-up. He only stepped on the brakes after
the collision.
Petitioners are Solidarily Liable
LADECO alleges that it should not be held jointly and severally liable with
Deocampo because it exercised due diligence in the supervision and selection of
its employees. Aside from this statement, LADECO did not proffer any proof to
show how it exercised due diligence in the supervision and selection of its
employees. LADECO did not show its policy in hiring its drivers, or the manner in
which it supervised its drivers. LADECO failed to substantiate its allegation that
it exercised due diligence in the supervision and selection of its employees.
Hence, we hold LADECO solidarily liable with Deocampo.
Respondent is Entitled to Moral Damages
We sustain the award of moral damages. Moral damages are awarded to allow a
plaintiff to obtain means, diversion, or amusement that will serve to alleviate the
moral suffering he has undergone due to the defendants culpable action. The
trial court found that respondent, who was on board the pick-up when the
collision took place, suffered shock, serious anxiety, and fright when the
crewcab bumped his pick-up. We sustain the trial court and the Court of Appeals
in ruling that respondent sufficiently showed that he suffered shock, serious
anxiety, and fright which entitle him to moral damages.
Both the trial court and the Court of Appeals failed to give any justification for
the award of attorneys fees. Awards of attorneys fees must be based on
findings of fact and of law and stated in the decision of the trial court. Further,
no premium should be placed on the right to litigate. Hence, we delete the
award of attorneys fees.
WHEREFORE, we AFFIRM the 25 July 2001 Decision and 11 March 2002
Resolution of the Court of Appeals in CA-G.R. CV No. 51134
with MODIFICATION by deleting the award of attorneys fees.
G.R. No. 101683 February 23, 1995
LBC AIR CARGO, INC. FERNANDO M. YU and JAIME TANO vs. HON.
COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y OYON-
OYON, represented by PATROCENIA GRONDIANO y MONTEROLA, and
PATROCENIA GRONDIANO y MONTEROLA
A vehicular collision occurred at about 11:30 in the morning of 15 November
1987. Rogelio Monterola, a licensed driver, was traveling on board his Suzuki
motorcycle towards Mangagoy on the right lane along a dusty national road in
Bislig, Surigao del Sur. At about the same time, a cargo van of the LBC Air
Cargo Incorporated, driven by defendant Jaime Tano, Jr., was coming from the
opposite direction on its way to the Bislig Airport. On board were passengers
Fernando Yu, Manager of LBC Air Cargo, and his son who was seated beside
Tano. When Tano was approaching the vicinity of the airport road entrance on
his left, he saw two vehicles racing against each other from the opposite
direction. Tano stopped his vehicle and waited for the two racing vehicles to
pass by. The stirred cloud of dust made visibility extremely bad. Instead of
waiting for the dust to settled, Tano started to make a sharp left turn towards
the airport road. When he was about to reach the center of the right lane, the
motorcycle driven by Monterola suddenly emerged from the dust and smashed
head-on against the right side of the LBC van. Monterola died from the severe
injuries he sustained.
A criminal case for "homicide thru reckless imprudence" was filed against Tano.
A civil suit was likewise instituted by the heirs of deceased Monterola against
Tano, along with Fernando Yu and LBC Air Cargo Incorporated, for the recovery
of damages.
From every indication, the proximate cause of the accident was the negligence
of Tano who, despite extremely poor visibility, hastily executed a left turn
(towards the Bislig airport road entrance) without first waiting for the dust to
settle. It was this negligent act of Tano, which had placed his vehicle (LBC van)
directly on the path of the motorcycle coming from the opposite direction, that
almost instantaneously caused the collision to occur. Simple prudence required
him not to attempt to cross the other lane until after it would have been safe
from and clear of any oncoming vehicle.
Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at
times, as "supervening negligence" or as "discovered peril"). The doctrine, in
essence, is to the effect that where both parties are negligent, but the negligent
act of one is appreciably later in time than that of the other, or when it is
impossible to determine whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to avoid the impending
harm and failed to do so is chargeable with the consequences thereof (see Picart
vs. Smith, 37 Phil. 809). Stated differently, the rule would also mean that an
antecedent negligence of a person does not preclude the recovery of damages
for supervening negligence of, or bar a defense against the liability sought by,
another if the latter, who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence (Pantranco North Express, Inc.
vs. Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs. Intermediate
Appellate Court, 173 SCRA 464).
In the case at bench, the victim was traveling along the lane where he was
rightly supposed to be. The incident occurred in an instant. No appreciable time
had elapsed, from the moment Tano swerved to his left to the actual impact;
that could have afforded the victim a last clear opportunity to avoid the collision.
It is true however, that the deceased was not all that free from negligence in
evidently speeding too closely behind the vehicle he was following. We,
therefore, agree with the appellate court that there indeed was contributory
negligence on the victim's part that could warrant a mitigation of petitioners
liability for damages.
G.R. No. 175172 September 29, 2009
CRESENCIA ACHEVARA, ALFREDO ACHEVARA, and BENIGNO VALDEZ vs.
ELVIRA RAMOS, JOHN ARNEL RAMOS, and KHRISTINE CAMILLE RAMOS
On June 27, 1995, respondents Elvira Ramos and her two minor children,
namely, John Arnel Ramos and Khristine Camille Ramos, filed with the RTC of
Ilocos Sur a Complaint for damages under Article 2176 of the Civil Code against
petitioners Cresencia Achevara, Alfredo Achevara and Benigno Valdez for the
death of Arnulfo Ramos, husband of Elvira Ramos and father of her two children,
in a vehicular accident that happened on April 22, 1995 at the national highway
along Barangay Tablac, Candon, Ilocos Sur. Crescencia Achevara was sued as
the operator of the passenger jeep with Plate No. DKK-995, which was involved
in the vehicular accident. Alfredo Achevara was impleaded as the husband of the
operator and as the administrator of the conjugal partnership properties of the
Spouses Achevara.
In their Complaint, respondents alleged that in the morning of April 22, 1995,
Benigno Valdez was driving a passenger jeep heading north on the national
highway in Barangay Tablac, Candon, Ilocos Sur in a reckless, careless, and
negligent manner. He tried to overtake a motorcycle, causing the passenger
jeep to encroach on the opposite lane and bump the oncoming vehicle driven by
Arnulfo Ramos. The injuries sustained by Arnulfo Ramos caused his death,
notwithstanding prompt medical assistance. Respondents alleged that
Crescencia Achevara failed to exercise due diligence in the selection and
supervision of Benigno Valdez as driver of the passenger jeep. Respondents
sought to recover actual damages for medical expenses in the sum
of P33,513.00 and funeral expenses in the sum of P30,000.00, as well as moral
and exemplary damages, lost earnings, attorney's fees and litigation expenses.
In their Answer, petitioners denied respondents allegation that Benigno Valdez
overtook a motorcycle and bumped the vehicle driven by Arnulfo Ramos. They
alleged that on April 22, 1995, Benigno Valdez was driving southward at a
moderate speed when he saw an owner-type jeep coming from the south and
heading north, running in a zigzag manner, and encroaching on the west lane of
the road. To avoid a collision, Valdez drove the passenger jeep towards the
shoulder of the road, west of his lane, but the owner-type jeep continued to
move toward the western lane and bumped the left side of the passenger jeep.
Petitioners alleged that it was Arnulfo Ramos who was careless and negligent in
driving a motor vehicle, which he very well knew had a mechanical defect.
Hence, respondents had no cause of action against petitioners.
Petitioners contend that the doctrine of last clear chance is not applicable to this
case, because the proximate cause of the accident was the negligence of the
late Arnulfo Ramos in knowingly driving the defective owner-type jeep. When
the front wheel of the owner-type jeep was removed, the said jeep suddenly
encroached on the western lane and bumped the left side of the passenger jeep
driven by Benigno Valdez. Considering that the interval between the time the
owner-type jeep encroached on the lane of Valdez to the time of impact was
only a matter of seconds, Valdez no longer had the opportunity to avoid the
collision. Pantranco North Express Inc. v. Besa held that the doctrine of last
clear chance "can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all
means at hand after the peril is or should have been discovered."
Petitioners assert that Arnulfo Ramos negligence in driving the owner-type jeep
despite knowledge of its mechanical defect, and his failure to have it repaired
first before driving, to prevent damage to life and property did not only
constitute contributory negligence. Ramos negligence was the immediate and
proximate cause of the accident, which resulted in his untimely demise. Benigno
Valdez should not be made to suffer the unlawful and negligent acts of Ramos.
Since forseeability is the fundamental basis of negligence, Valdez could not have
foreseen that an accident might happen due to the mechanical defect in the
vehicle of Ramos. It was Ramos alone who fully knew and could foresee that an
accident was likely to occur if he drove his defective jeep, which indeed
happened. Hence, the proximate cause of the vehicular accident was the
negligence of Ramos in driving a mechanically defective vehicle.
In short, petitioners contend that Arnulfo Ramos own negligence in knowingly
driving a mechanically defective vehicle was the immediate and proximate cause
of his death, and that the doctrine of last clear chance does not apply to this
case.
The main issue is whether or not petitioners are liable to respondents for
damages incurred as a result of the vehicular accident.
Petitioners arguments are meritorious.
The Court notes that respondents version of the vehicular accident was rebutted
by petitioners. The testimony of respondents witness, Alfredo Gamera, that the
vehicular accident occurred because the passenger jeep driven by Benigno
Valdez tried to overtake the motorcycle driven by PO3 Baltazar de Peralta and
encroached on the lane of the owner-type jeep, which resulted in the collision,
was refuted by PO3 Baltazar de Peralta, who testified that the passenger jeep
did not overtake his motorcycle since he was the one following behind the
passenger jeep. Hence, the trial court correctly concluded that the passenger
jeep did not encroach on the lane of the owner-type jeep on the left side of the
road to allegedly overtake the motorcycle.
Gamera also testified that the collision took place on the lane of the owner-type
jeep, and one of its wheels was detached and stayed immobile at the place of
collision, about two meters east the center line of the national highway.
However, SPO2 Marvin Valdez, who investigated the incident, found both
vehicles on the western lane of the national highway. The owner-type jeep was
diagonally positioned on the right, western lane; while the passenger jeep was
on the western shoulder of the road, diagonally facing southwest. The trial
court, therefore, correctly held that it was undeniable that the collision took
place on the western lane of the national highway or the lane of the passenger
jeep driven by Benigno Valdez. It was the owner-type jeep driven by Arnulfo
Ramos that encroached on the lane of the passenger jeep.
It must be pointed out that Herminigildo Pagaduan testified that in the early
morning of April 22, 1995, he and Barangay Captain Gacusan, along with
Arnulfo Ramos, aborted their trip to Tamorong, Candon, Ilocos Sur, using the
same owner-type jeep because it was wiggling. Ramos was advised to have the
mechanical defect repaired. Yet, later in the morning, Ramos was driving the
owner-type jeep on the national highway in Candon. Benigno Valdez testified
that the owner-type jeep was wiggling and running fast in a zigzag manner
when its right front wheel got detached, and the owner-type jeep suddenly
bumped the passenger jeep he was driving, hitting the left side of the passenger
jeep opposite his seat. Although Valdez swerved the passenger jeep to the
western edge of the road, it was still hit by the owner-type jeep.
Foreseeability is the fundamental test of negligence. To be negligent, a
defendant must have acted or failed to act in such a way that an ordinary
reasonable man would have realized that certain interests of certain persons
were unreasonably subjected to a general but definite class of risks.
Seeing that the owner-type jeep was wiggling and running fast in a zigzag
manner as it travelled on the opposite side of the highway, Benigno Valdez was
made aware of the danger ahead if he met the owner-type jeep on the road. Yet
he failed to take precaution by immediately veering to the rightmost portion of
the road or by stopping the passenger jeep at the right shoulder of the road and
letting the owner-type jeep pass before proceeding southward; hence, the
collision occurred. The Court of Appeals correctly held that Benigno Valdez was
guilty of inexcusable negligence by neglecting to take such precaution, which a
reasonable and prudent man would ordinarily have done under the
circumstances and which proximately caused injury to another.
On the other hand, the Court also finds Arnulfo Ramos guilty of gross negligence
for knowingly driving a defective jeep on the highway. An ordinarily prudent
man would know that he would be putting himself and other vehicles he would
encounter on the road at risk for driving a mechanically defective vehicle. Under
the circumstances, a prudent man would have had the owner-type jeep repaired
or would have stopped using it until it was repaired. Ramos was, therefore,
grossly negligent in continuing to drive on the highway the mechanically
defective jeep, which later encroached on the opposite lane and bumped the
passenger jeep driven by Benigno Valdez. Gross negligence is the absence of
care or diligence as to amount to a reckless disregard of the safety of persons or
property. It evinces a thoughtless disregard of consequences without exerting
any effort to avoid them.
The acts of negligence of Arnulfo Ramos and Benigno Valdez were
contemporaneous when Ramos continued to drive a wiggling vehicle on the
highway despite knowledge of its mechanical defect, while Valdez did not
immediately veer to the rightmost side of the road upon seeing the wiggling
vehicle of Ramos perhaps because it still kept to its lane and Valdez did not
know the extent of its mechanical defect. However, when the owner-type jeep
encroached on the lane of the passenger jeep, Valdez realized the peril at hand
and steered the passenger jeep toward the western shoulder of the road to
avoid a collision. It was at this point that it was perceivable that Ramos must
have lost control of his vehicle, and that it was Valdez who had the last
opportunity to avoid the collision by swerving the passenger jeep towards the
right shoulder of the road.
The doctrine of last clear chance applies to a situation where the plaintiff was
guilty of prior or antecedent negligence, but the defendant who had the last
fair chance to avoid the impending harm and failed to do so is made liable for
all the consequences of the accident, notwithstanding the prior negligence of the
plaintiff. However, the doctrine does not apply where the party charged is
required to act instantaneously, and the injury cannot be avoided by the
application of all means at hand after the peril is or should have been
discovered.
The doctrine of last clear chance does not apply to this case, because even if it
can be said that it was Benigno Valdez who had the last chance to avoid the
mishap when the owner-type jeep encroached on the western lane of the
passenger jeep, Valdez no longer had the opportunity to avoid the collision. The
Answer of petitioners stated that when the owner-type jeep encroached on the
lane of the passenger jeep, Benigno Valdez maneuvered his vehicle towards the
western shoulder of the road to avoid a collision, but the owner-type jeep driven
by Ramos continued to move to the western lane and bumped the left side of
the passenger jeep. Thus, petitioners assert in their Petition that considering
that the time the owner-type jeep encroached on the lane of Valdez to the time
of impact was only a matter of seconds, he no longer had the opportunity to
avoid the collision. Although the records are bereft of evidence showing the
exact distance between the two vehicles when the owner-type jeep encroached
on the lane of the passenger jeep, it must have been near enough, because the
passenger jeep driven by Valdez was unable to avoid the collision. Hence, the
doctrine of last clear chance does not apply to this case.
Article 2179 of the Civil Code provides:
When the plaintiffs own negligence was the immediate and proximate cause of
his injury, he cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the injury being the
defendants lack of due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.41
In this case, both Arnulfo Ramos and Benigno Valdez failed to exercise
reasonable care and caution that an ordinarily prudent man would have taken to
prevent the vehicular accident. Since the gross negligence of Arnulfo Ramos and
the inexcusable negligence of Benigno Valdez were the proximate cause of the
vehicular accident, respondents cannot recover damages pursuant to Article
2179 of the Civil Code.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in
CA-G.R. CV No. 67027, dated April 25, 2006, and its Resolution dated October
23, 2006, are hereby REVERSED and SET ASIDE.

Fortuitous event and the doctrine of the assumption of risk
G.R. No. 124922 June 22, 1998
JIMMY CO, doing business under the name & style DRAGON METAL
MANUFACTURING vs. COURT OF APPEALS and BROADWAY MOTOR
SALES CORPORATION
On July 18, 1990, petitioner entrusted his Nissan pick-up car 1988 model to
private respondent which is engaged in the sale, distribution and repair of
motor vehicles for the following job repair services and supply of parts:
Bleed injection pump and all nozzles;
Adjust valve tappet;
Change oil and filter;
Open up and service four wheel brakes, clean and adjust;
Lubricate accelerator linkages;
Replace aircon belt; and
Replace battery
Private respondent undertook to return the vehicle on July 21, 1990 fully
serviced and supplied in accordance with the job contract. After petitioner paid
in full the repair bill in the amount of P1,397.00 private respondent issued to
him a gate pass for the release of the vehicle on said date. But came July 21,
1990, the latter could not release the vehicle as its battery was weak and was
not yet replaced. Left with no option, petitioner himself bought a new battery
nearby and delivered it to private respondent for installation on the same day.
However, the battery was not installed and the delivery of the car was
rescheduled to July 24, 1990 or three (3) days later. When petitioner sought to
reclaim his car in the afternoon of July 24, 1990, he was told that it was
carnapped earlier that morning while being road-tested by private respondent's
employee along Pedro Gil and Perez Streets in Paco, Manila. Private respondent
said that the incident was reported to the police.
Having failed to recover his car and its accessories or the value thereof,
petitioner filed a suit for damages against private respondent anchoring his
claim on the latter's alleged negligence. For its part, private respondent
contended that it has no liability because the car was lost as result of a
fortuitous event the carnapping.
In a petition for review to this Court, the principal query raised is whether a
repair shop can be held liable for the loss of a customer's vehicle while the same
is in its custody for repair or other job services?
The Court resolves the query in favor of the customer. Petitioner's imputation of
negligence to private respondent is premised on delay which is the very basis of
the former's complaint. Thus, it was unavoidable for the court to resolve the
case, particularly the question of negligence without considering whether private
respondent was guilty of delay in the performance of its obligation.
On the merits. It is a not 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.
Even assuming arguendo that carnapping was duly established as a fortuitous
event, still private respondent cannot escape liability. Article 1165 of the New
Civil Code makes an obligor who is guilty of delay responsible even for a
fortuitous event until he has effected the delivery. In this case, private
respondent was already in delay as it was supposed to deliver petitioner's car
three (3) days before it was lost. Petitioner's agreement to the rescheduled
delivery does not defeat his claim as private respondent had already breached
its obligation. Moreover, such accession cannot be construed as waiver of
petitioner's right to hold private respondent liable because the car was unusable
and thus, petitioner had no option but to leave it.
Assuming further that there was no delay, still working against private
respondent is the legal presumption under Article 1265 that its possession of the
thing at the time it was lost was due to its fault. This presumption is reasonable
since he who has the custody and care of the thing can easily explain the
circumstances of the loss. The vehicle owner has no duty to show that the repair
shop was at fault. All that petitioner needs to prove, as claimant, is the simple
fact that private respondent was in possession of the vehicle at the time it was
lost. In this case, private respondent's possession at the time of the loss is
undisputed. Consequently, the burden shifts to the possessor who needs to
present controverting evidence sufficient enough to overcome that presumption.
Moreover, the exempting circumstances earthquake, flood, storm or other
natural calamity when the presumption of fault is not applicable do not concur
in this case. Accordingly, having failed to rebut the presumption and since the
case does not fall under the exceptions, private respondent is answerable for the
loss.
It must likewise be emphasized that pursuant to Articles 1174 and 1262 of the
New Civil Code, liability attaches even if the loss was due to a fortuitous event if
"the nature of the obligation requires the assumption of risk". Carnapping is a
normal business risk for those engaged in the repair of motor vehicles. For just
as the owner is exposed to that risk so is the repair shop since the car was
entrusted to it. That is why, repair shops are required to first register with the
Department of Trade and Industry (DTI) and to secure an insurance policy for
the "shop covering the property entrusted by its customer for repair, service or
maintenance" as a pre-requisite for such registration/accreditation. Violation of
this statutory duty constitutes negligence per se. Having taken custody of the
vehicle private respondent is obliged not only to repair the vehicle but must also
provide the customer with some form of security for his property over which he
loses immediate control. An owner who cannot exercise the seven (7) juses or
attributes of ownership the right to possess, to use and enjoy, to abuse or
consume, to accessories, to dispose or alienate, to recover or vindicate and to
the fruits is a crippled owner. Failure of the repair shop to provide security to
a motor vehicle owner would leave the latter at the mercy of the former.
Moreover, on the assumption that private respondent's repair business is duly
registered, it presupposes that its shop is covered by insurance from which it
may recover the loss. If private respondent can recover from its insurer, then it
would be unjustly enriched if it will not compensate petitioner to whom no fault
can be attributed. Otherwise, if the shop is not registered, then the presumption
of negligence applies.
One last thing. With respect to the value of the lost vehicle and its accessories
for which the repair shop is liable, it should be based on the fair market value
that the property would command at the time it was entrusted to it or such
other value as agreed upon by the parties subsequent to the loss. Such
recoverable value is fair and reasonable considering that the value of the vehicle
depreciates. This value may be recovered without prejudice to such other
damages that a claimant is entitled under applicable laws.
G.R. No. 107968 October 30, 1996
ELIAS S. CIPRIANO and/or E.S. CIPRIANO ENTERPRISES vs. THE COURT
OF APPEALS and MACLIN ELECTRONICS, INC
Petitioner Elias S. Cipriano is the owner of E.S. Cipriano Enterprises, which is
engaged in the rustproofing of vehicles, under the style Mobilkote. On April 30,
1991, private respondent Maclin Electronics, Inc., through an employee, brought
a 1990 model Kia Pride People's car to petitioner's shop for rustproofing. The car
had been purchased the year before the Integrated Auto Sales, Inc. for
P252,155.00.
The vehicle was received in the shop under Job Order No. 123581, which
showed the date it was received for rustproofing as well its condition at the
time. Neither the time of acceptance nor the hour of release, however, was
specified. According to the petitioner, the car was brought to his shop at 10
o'clock in the morning of April 30, 1991 and was ready for release later that
afternoon, as it took only six hours to complete the process of rustproofing.
In the afternoon of May 1, 1991, fire broke out at the Lambat restaurant, which
petitioner also owned, adjoining his Mobilkote rustproofing shop. The fire
destroyed both the shop and the restaurant, including private respondent's Kia
Pride. The car had been kept inside the building, allegedly to protect it from
theft. Petitioner claimed that despite efforts to save the vehicle, there was
simply not enough time to get it out of the building, unlike three other cars
which had been saved because they were parked near the entrance of the
garage.
On May 8, 1991, private respondent sent a letter to petitioner, demanding
reimbursement for the value of the Kia Pride. In reply, petitioner denied liability
on the ground that the fire was a fortuitous event. This prompted private
respondent to bring this suit for the value of its vehicle and for damages against
petitioner. Private respondent alleged that its vehicle was lost due to the
negligence and imprudence of the petitioner, citing petitioner's failure to register
his business with the Department of Trade and Industry under P.D. No. 1572
and to insure it as required in the rules implementing the Decree.
In his Answer, petitioner invoked Art. 1174 of the Civil Code and denied liability
for the loss which he alleged was due to fortuitous event. He later testified that
he employed an electrician who regularly inspected the lighting in his restaurant
and rustproofing shop. In addition, he claimed he had installed fire-fighting
devices and that the fire was an accident entirely independent of his will and
devoid of any negligence on his part. He further averred that private
respondent's car was ready for release as early as afternoon of April 30, 1991
and that it was private respondent's delay in claiming it that was the cause of
the loss.
The issue in this case is whether petitioner was required to insure his business
and the vehicles received by him in the course of his business and, if so,
whether his failure to do so constituted negligence, rendering him liable for loss
due to the risk required to be insured against.
The contention is without merit. We hold that both questions must be answered
in the affirmative.
We have already held that violation of a statutory duty is negligence per se.
In F.F. Cruz and Co., Inc. v. Court of Appeals, we held the owner of a furniture
shop liable for the destruction of the plaintiff's house in a fire which started in
his establishment in view of his failure to comply with an ordinance which
required the construction of a firewall. In Teague v. Fernandez, we stated that
where the very injury which was intended to be prevented by the ordinance has
happened, non-compliance with the ordinance was not only an act of negligence,
but also the proximate cause of the death.
Indeed, the existence of a contract between petitioner and private respondent
does not bar a finding of negligence under the principles of quasi-delict, as we
recently held in Fabre v. Court of Appeals. Petitioner's negligence is the source
of his obligation. He is not being held liable for breach of his contractual
obligation due to negligence but for his negligence in not complying with a duty
imposed on him by law. It is therefore immaterial that the loss occasioned to
private respondent was due to a fortuitous event, since it was petitioner's
negligence in not insuring against the risk which was the proximate cause of the
loss.
Thus, P.D. No. 1572, 1 requires service and repair enterprises for motor
vehicles, like that petitioner's, to register with Department of Trade and
Industry. As condition for such registration or accreditation, Ministry Order No.
32 requires covered enterprises to secure insurance coverage. Rule III of this
Order provides in pertinent parts:
1 REQUIREMENTS FOR ACCREDITATION
1) Enterprises applying for original accreditation shall submit the
following:
1.1 List of machineries/equipment/tools in useful condition;
1.2 List of certified engineers/accredited technicians mechanics
with their personal data;
1.3 Copy of Insurance Policy of the shop covering the property
entrusted by its customer for repair, service or maintenance
together with a copy of the official receipt covering the full
payment of premium:
1.4 Copy of Bond referred to under Section 7, Rule III of this Rules
and Regulations;
 1.5 Written service warranty in the form prescribed by the Bureau;
1.6 Certificate issued by the Securities and Exchange Commission
and Articles of Incorporation or Partnership in case of corporation
or partnership;
1.7 Such other additional documents which the Director may
require from time to time.
8 INSURANCE POLICY
The insurance policy of the following risks like theft, pilferage, fire, flood
and loss should cover exclusively the machines, motor vehicles, heavy
equipment, engines, electronics, electrical airconditioners, refrigerators,
office machines and data processing equipment, medical and dental
equipment, other consumer mechanical and industrial equipment stored
for repair and/or service in the premises of the applicant.
There is thus a statutory duty imposed on petitioner and it is for his failure to
comply with this duty that he was guilty or negligence rendering him liable for
damages to private respondent. While the fire in this case may be considered a
fortuitous event, this circumstance cannot exempt petitioner from liability for
loss.
It is now settled that the reasons or grounds for an award of attorney's fees
must be set forth in the decision of the court. They cannot be left to inference
as the appellate court held in this case. The reason for this is that it is not sound
policy to penalize the right to litigate. An award of attorney's fees, being an
exception to this policy and limited to the grounds enumerated in the law, must
be fully justified in the decision. It can not simply be inserted as an item of
recoverable damages in the judgment of the court. Since in this case there is no
justification for the award of attorney's fees in the decision of the trial court, it
was error for the Court of Appeals to sustain such award.
G.R. No. L-36481-2 October 23, 1982
AMPARO C. SERVANDO, CLARA UY BICO vs. PHILIPPINE STEAM
NAVIGATION CO.
On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on
board the appellant's vessel, FS-176, for carriage from Manila to Pulupandan,
Negros Occidental, the following cargoes, to wit:
Clara Uy Bico
1,528 cavans of rice valued
at P40,907.50;
Amparo Servando
44 cartons of colored paper,
toys and general merchandise valued at P1,070.50;
as evidenced by the corresponding bills of lading issued by the appellant.
Upon arrival of the vessel at Pulupandan, in the morning of November 18, 1963,
the cargoes were discharged, complete and in good order, unto the warehouse
of the Bureau of Customs. At about 2:00 in the afternoon of the same day, said
warehouse was razed by a fire of unknown origin, destroying appellees' cargoes.
Before the fire, however, appellee Uy Bico was able to take delivery of 907
cavans of rice Appellees' claims for the value of said goods were rejected by the
appellant.
It should be pointed out, however, that in the bills of lading issued for the
cargoes in question, the parties agreed to limit the responsibility of the carrier
for the loss or damage that may be caused to the shipment by inserting therein
the following stipulation:
Clause 14. Carrier shall not be responsible for loss or damage to
shipments billed 'owner's risk' unless such loss or damage is due to
negligence of carrier. Nor shall carrier be responsible for loss or damage
caused by force majeure, dangers or accidents of the sea or other waters;
war; public enemies; . . . fire . ...
We sustain the validity of the above stipulation; there is nothing therein that is
contrary to law, morals or public policy.
Appellees would contend that the above stipulation does not bind them because
it was printed in fine letters on the back-of the bills of lading; and that they did
not sign the same. This argument overlooks the pronouncement of this Court in
Ong Yiu vs. Court of Appeals, where the same issue was resolved in this wise:
While it may be true that petitioner had not signed the plane ticket (Exh.
'12'), he is nevertheless bound by the provisions thereof. 'Such provisions
have been held to be a part of the contract of carriage, and valid and
binding upon the passenger regardless of the latter's lack of knowledge or
assent to the regulation'. It is what is known as a contract of 'adhesion',
in regards which it has been said that contracts of adhesion wherein one
party imposes a ready made form of contract on the other, as the plane
ticket in the case at bar, are contracts not entirely prohibited. The one
who adheres to the contract is in reality free to reject it entirely; if he
adheres, he gives his consent."
Besides, the agreement contained in the above quoted Clause 14 is a mere
iteration of the basic principle of law written in Article 1 1 7 4 of the Civil Code:
Article 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.
Thus, where fortuitous event or force majeure is the immediate and proximate
cause of the loss, the obligor is exempt from liability for non-performance. The
Partidas, the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito'
as 'an event that takes place by accident and could not have been foreseen.
Examples of this are destruction of houses, unexpected fire, shipwreck, violence
of robbers.'
In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada
Espanola says: "In a legal sense and, consequently, also in relation to contracts,
a 'caso fortuito' presents the following essential characteristics: (1) the cause of
the unforeseen and unexpected occurrence, or of the failure of the debtor to
comply with his obligation, must be independent of the human will; (2) it must
be impossible to foresee the event which constitutes the 'caso fortuito', or if it
can be foreseen, it must be impossible to avoid; (3) the occurrence must be
such as to render it impossible for the debtor to fulfill his obligation in a normal
manner; and (4) the obligor must be free from any participation in the
aggravation of the injury resulting to the creditor." In the case at bar, the
burning of the customs warehouse was an extraordinary event which happened
independently of the will of the appellant. The latter could not have foreseen the
event.
There is nothing in the record to show that appellant carrier, incurred in delay in
the performance of its obligation. It appears that appellant had not only notified
appellees of the arrival of their shipment, but had demanded that the same be
withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken
delivery of 907 cavans of rice before the burning of the warehouse.
Nor can the appellant or its employees be charged with negligence. The storage
of the goods in the Customs warehouse pending withdrawal thereof by the
appellees was undoubtedly made with their knowledge and consent. Since the
warehouse belonged to and was maintained by the government, it would be
unfair to impute negligence to the appellant, the latter having no control
whatsoever over the same.
The lower court in its decision relied on the ruling laid down in Yu Biao Sontua
vs. Ossorio, where this Court held the defendant liable for damages arising from
a fire caused by the negligence of the defendant's employees while loading
cases of gasoline and petroleon products. But unlike in the said case, there is
not a shred of proof in the present case that the cause of the fire that broke out
in the Custom's warehouse was in any way attributable to the negligence of the
appellant or its employees. Under the circumstances, the appellant is plainly not
responsible.
G.R. No. 156034 October 1, 2003
DELSAN TRANSPORT LINES, INC. vs. C & A Construction, Inc.
Respondent C & A Construction, Inc. was engaged by the National Housing
Authority (NHA) to construct a deflector wall at the Vitas Reclamation Area in
Vitas, Tondo, Manila. The project was completed in 1994 but it was not formally
turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by
petitioner Delsan Transport Lines, Inc., anchored at the Navotas Fish Port for the
purpose of installing a cargo pump and clearing the cargo oil tank. At around
12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan
Express received a report from his radio head operator in Japan that a typhoon
was going to hit Manila in about eight (8) hours. At approximately 8:35 in the
morning of October 21, 1994, Capt. Jusep tried to seek shelter at the North
Harbor but could not enter the area because it was already congested. At 10:00
a.m., Capt. Jusep decided to drop anchor at the vicinity of Vitas mouth, 4 miles
away from a Napocor power barge. At that time, the waves were already
reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to
counter the wind which was dragging the ship towards the Napocor power
barge. To avoid collision, Capt. Jusep ordered a full stop of the vessel. He
succeeded in avoiding the power barge, but when the engine was re-started and
the ship was maneuvered full astern, it hit the deflector wall constructed by
respondent. The damage caused by the incident amounted to P456,198.24.
Respondent demanded payment of the damage from petitioner but the latter
refused to pay. Consequently, respondent filed a complaint for damages. In its
answer, petitioner claimed that the damage was caused by a fortuitous event.
(1) Whether or not Capt. Jusep was negligent; (2) If yes, whether or not
petitioner is solidarily liable under Article 2180 of the Civil Code for the quasi-
delict committed by Capt. Jusep?
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 pre-existing contractual
relation between the parties, is called a quasi-delict. The test for determining
the existence of negligence in a particular case may be stated as follows: Did
the defendant in doing the alleged negligent act use the reasonable care and
caution which an ordinary prudent person would have used in the same
situation? If not, then he is guilty of negligence.
In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep
was negligent in deciding to transfer the vessel only at 8:35 in the morning of
October 21, 1994. As early as 12:00 midnight of October 20, 1994, he received
a report from his radio head operator in Japan that a typhoon was going to hit
Manila after 8 hours. This, notwithstanding, he did nothing, until 8:35 in the
morning of October 21, 1994, when he decided to seek shelter at the North
Harbor, which unfortunately was already congested. The finding of negligence
cannot be rebutted upon proof that the ship could not have sought refuge at the
North Harbor even if the transfer was done earlier. It is not the speculative
success or failure of a decision that determines the existence of negligence in
the present case, but the failure to take immediate and appropriate action under
the circumstances. Capt. Jusep, despite knowledge that the typhoon was to hit
Manila in 8 hours, complacently waited for the lapse of more than 8 hours
thinking that the typhoon might change direction. He cannot claim that he
waited for the sun to rise instead of moving the vessel at midnight immediately
after receiving the report because of the difficulty of traveling at night. The hour
of 8:35 a.m. is way past sunrise. Furthermore, he did not transfer as soon as
the sun rose because, according to him, it was not very cloudy and there was no
weather disturbance yet.
When he ignored the weather report notwithstanding reasonable foresight of
harm, Capt. Jusep showed an inexcusable lack of care and caution which an
ordinary prudent person would have observed in the same situation. Had he
moved the vessel earlier, he could have had greater chances of finding a space
at the North Harbor considering that the Navotas Port where they docked was
very near North Harbor. Even if the latter was already congested, he would still
have time to seek refuge in other ports.
The trial court erred in applying the emergency rule. Under this rule, one who
suddenly finds himself in a place of danger, and is required to act without time
to consider the best means that may be adopted to avoid the impending danger,
is not guilty of negligence, if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the danger in which
he finds himself is brought about by his own negligence. Clearly, the emergency
rule is not applicable to the instant case because the danger where Capt. Jusep
found himself was caused by his own negligence.
Anent the second issue, we find petitioner vicariously liable for the negligent act
of Capt. Jusep. Under Article 2180 of the Civil Code an employer may be held
solidarily liable for the negligent act of his employee. Thus
 Art. 2180. The obligation imposed in Article 2176 is demandable not only
for ones own acts or omissions, but also for those of persons for whom
one is responsible.
xxxxxxxxx
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.
xxxxxxxxx
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.
Whenever an employees negligence causes damage or injury to another,
there instantly arises a presumptionjuris tantum that the employer failed
to exercise diligentissimi patris families in the selection (culpa in
eligiendo) or supervision (culpa in vigilando) of its employees. To avoid
liability for a quasi-delict committed by his employee, an employer must
overcome the presumption by presenting convincing proof that he
exercised the care and diligence of a good father of a family in the
selection and supervision of his employee.
There is no question that petitioner, who is the owner/operator of M/V Delsan
Express, is also the employer of Capt. Jusep who at the time of the incident
acted within the scope of his duty. The defense raised by petitioner was that it
exercised due diligence in the selection of Capt. Jusep because the latter is a
licensed and competent Master Mariner. It should be stressed, however, that the
required diligence of a good father of a family pertains not only to the selection,
but also to the supervision of employees. It is not enough that the employees
chosen be competent and qualified, inasmuch as the employer is still required to
exercise due diligence in supervising its employees.
In Fabre, Jr. v. Court of Appeals, it was held that due diligence in supervision
requires the formulation of rules and regulations for the guidance of employees
and the issuance of proper instructions as well as actual implementation and
monitoring of consistent compliance with the rules. Corollarily, in Ramos v.
Court of Appeals, the Court stressed that once negligence on the part of the
employees is shown, the burden of proving that he observed the diligence in the
selection and supervision of its employees shifts to the employer.
In the case at bar, however, petitioner presented no evidence that it formulated
rules/guidelines for the proper performance of functions of its employees and
that it strictly implemented and monitored compliance therewith. Failing to
discharge the burden, petitioner should therefore be held liable for the negligent
act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondents failure to
allege in its complaint that the former did not exercise due diligence in the
selection and supervision of its employees. In Viron Transportation Co., Inc. v.
Delos Santos, it was held that it is not necessary to state that petitioner was
negligent in the supervision or selection of its employees, inasmuch as its
negligence is presumed by operation of law. Allegations of negligence against
the employee and that of an employer-employee relation in the complaint are
enough to make out a case of quasi-delict under Article 2180 of the Civil Code.
Considering that petitioner did not assail the damages awarded by the trial
court, we find no reason to alter the same. The interest imposed should,
however, be modified. In Eastern Shipping Lines, Inc. v. Court of Appeals, it was
held that the rate of interest on obligations not constituting a loan or
forbearance of money is six percent (6%) per annum. If the purchase price can
be established with certainty at the time of the filing of the complaint, the six
percent (6%) interest should be computed from the date the complaint was filed
until finality of the decision. After the judgment becomes final and executory
until the obligation is satisfied, the amount due shall earn interest at 12% per
year, the interim period being deemed equivalent to a forbearance of credit.
Accordingly, the amount of P456,198.27 due the respondent shall earn 6%
interest per annum from October 3, 1995 until the finality of this decision. If the
adjudged principal and the interest (or any part thereof) remain unpaid
thereafter, the interest rate shall be twelve percent (12%) per annum computed
from the time the judgment becomes final and executory until it is fully
satisfied.
G.R. No. 150255. April 22, 2005
SCHMITZ TRANSPORT & BROKERAGE CORPORATION vs. TRANSPORT
VENTURE, INC., INDUSTRIAL INSURANCE COMPANY, LTD., and BLACK
SEA SHIPPING AND DODWELL now INCHCAPE SHIPPING SERVICES
On September 25, 1991, SYTCO Pte Ltd. Singapore shipped from the port of
Ilyichevsk, Russia on board M/V "Alexander Saveliev" (a vessel of Russian
registry and owned by Black Sea) 545 hot rolled steel sheets in coil weighing
6,992,450 metric tons.
The cargoes, which were to be discharged at the port of Manila in favor of the
consignee, Little Giant Steel Pipe Corporation (Little Giant), were insured against
all risks with Industrial Insurance Company Ltd. (Industrial Insurance) under
Marine Policy No. M-91-3747-TIS.
The vessel arrived at the port of Manila on October 24, 1991 and the Philippine
Ports Authority (PPA) assigned it a place of berth at the outside breakwater at
the Manila South Harbor.
Schmitz Transport, whose services the consignee engaged to secure the
requisite clearances, to receive the cargoes from the shipside, and to deliver
them to its (the consignees) warehouse at Cainta, Rizal, in turn engaged the
services of TVI to send a barge and tugboat at shipside.
On October 26, 1991, around 4:30 p.m., TVIs tugboat "Lailani" towed the barge
"Erika V" to shipside.
By 7:00 p.m. also of October 26, 1991, the tugboat, after positioning the barge
alongside the vessel, left and returned to the port terminal. At 9:00 p.m.,
arrastre operator Ocean Terminal Services Inc. commenced to unload 37 of the
545 coils from the vessel unto the barge.
By 12:30 a.m. of October 27, 1991 during which the weather condition had
become inclement due to an approaching storm, the unloading unto the barge of
the 37 coils was accomplished. No tugboat pulled the barge back to the pier,
however.
At around 5:30 a.m. of October 27, 1991, due to strong waves, the crew of the
barge abandoned it and transferred to the vessel. The barge pitched and rolled
with the waves and eventually capsized, washing the 37 coils into the sea. At
7:00 a.m., a tugboat finally arrived to pull the already empty and damaged
barge back to the pier.
Earnest efforts on the part of both the consignee Little Giant and Industrial
Insurance to recover the lost cargoes proved futile.
Little Giant thus filed a formal claim against Industrial Insurance which paid it
the amount of P5,246,113.11. Little Giant thereupon executed a subrogation
receipt in favor of Industrial Insurance.
Industrial Insurance later filed a complaint against Schmitz Transport, TVI, and
Black Sea through its representative Inchcape (the defendants) before the RTC
of Manila, for the recovery of the amount it paid to Little Giant plus adjustment
fees, attorneys fees, and litigation expenses.
Industrial Insurance faulted the defendants for undertaking the unloading of the
cargoes while typhoon signal No. 1 was raised in Metro Manila.
In issue then are:
(1) Whether the loss of the cargoes was due to a fortuitous event, independent
of any act of negligence on the part of petitioner Black Sea and TVI, and
(2) If there was negligence, whether liability for the loss may attach to Black
Sea, petitioner and TVI.
When a fortuitous event occurs, Article 1174 of the Civil Code absolves any
party from any and all liability arising therefrom:
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.
 In order, to be considered a fortuitous event, however, (1) the cause of
the unforeseen and unexpected occurrence, or the failure of the debtor to
comply with his obligation, must be independent of human will; (2) it
must be impossible to foresee the event which constitute the caso
fortuito, or if it can be foreseen it must be impossible to avoid; (3) the
occurrence must be such as to render it impossible for the debtor to fulfill
his obligation in any manner; and (4) the obligor must be free from any
participation in the aggravation of the injury resulting to the creditor.
[T]he principle embodied in the act of God doctrine strictly requires that the act
must be occasioned solely by the violence of nature. Human intervention is to be
excluded from creating or entering into the cause of the mischief. When the
effect is found to be in part the result of the participation of man, whether due
to his active intervention or neglect or failure to act, the whole occurrence is
then humanized and removed from the rules applicable to the acts of God.
From a review of the records of the case, there is no indication that there was
greater risk in loading the cargoes outside the breakwater. As the defendants
proffered, the weather on October 26, 1991 remained normal with moderate sea
condition such that port operations continued and proceeded normally.
The weather data report, furnished and verified by the Chief of the Climate Data
Section of PAG-ASA and marked as a common exhibit of the parties, states that
while typhoon signal No. 1 was hoisted over Metro Manila on October 23-31,
1991, the sea condition at the port of Manila at 5:00 p.m. - 11:00 p.m. of
October 26, 1991 was moderate. It cannot, therefore, be said that the
defendants were negligent in not unloading the cargoes upon the barge on
October 26, 1991 inside the breakwater.
That no tugboat towed back the barge to the pier after the cargoes were
completely loaded by 12:30 in the morning 39 is, however, a material fact which
the appellate court failed to properly consider and appreciate the proximate
cause of the loss of the cargoes. Had the barge been towed back promptly to the
pier, the deteriorating sea conditions notwithstanding, the loss could have been
avoided. But the barge was left floating in open sea until big waves set in at
5:30 a.m., causing it to sink along with the cargoes. The loss thus falls outside
the "act of God doctrine."
The proximate cause of the loss having been determined, who among the
parties is/are responsible therefor?
Contrary to petitioners insistence, this Court, as did the appellate court, finds
that petitioner is a common carrier. For it undertook to transport the cargoes
from the shipside of "M/V Alexander Saveliev" to the consignees warehouse at
Cainta, Rizal. As the appellate court put it, "as long as a person or corporation
holds [itself] to the public for the purpose of transporting goods as [a] business,
[it] is already considered a common carrier regardless if [it] owns the vehicle to
be used or has to hire one." 42 That petitioner is a common carrier, the testimony
of its own Vice-President and General Manager Noel Aro that part of the services
it offers to its clients as a brokerage firm includes the transportation of cargoes
reflects so.
Atty. Jubay: Will you please tell us what [are you] functions x x x as Executive
Vice-President and General Manager of said Company?
Mr. Aro: Well, I oversee the entire operation of the brokerage and transport
business of the company. I also handle the various division heads of the
company for operation matters, and all other related functions that the President
may assign to me from time to time, Sir.
Q: And since when have you been the brokerage firm of that company, if you
can recall?
A: Since 1990, Sir.
Q: Now, you said that you are the brokerage firm of this Company. What work
or duty did you perform in behalf of this company?
A: We handled the releases (sic) of their cargo[es] from the Bureau of
Customs. We [are] also in-charged of the delivery of the goods to their
warehouses. We also handled the clearances of their shipment at the Bureau of
Customs, Sir.
xxx
Q: Now, what precisely [was] your agreement with this Little Giant Steel Pipe
Corporation with regards to this shipment? What work did you do with this
shipment?
A: We handled the unloading of the cargo[es] from vessel to lighter and then
the delivery of [the] cargo[es] from lighter to BASECO then to the truck and to
the warehouse, Sir.
Q: Now, in connection with this work which you are doing, Mr. Witness, you are
supposed to perform, what equipment do (sic) you require or did you use in
order to effect this unloading, transfer and delivery to the warehouse?
A: Actually, we used the barges for the ship side operations, this unloading
[from] vessel to lighter, and on this we hired or we sub-contracted with
[T]ransport Ventures, Inc. which [was] in-charged (sic) of the barges. Also, in
BASECO compound we are leasing cranes to have the cargo unloaded from the
barge to trucks, [and] then we used trucks to deliver [the cargoes] to the
consignees warehouse, Sir.
Q: And whose trucks do you use from BASECO compound to the consignees
warehouse?
A: We utilized of (sic) our own trucks and we have some other contracted
trucks, Sir.
xxx
ATTY. JUBAY: Will you please explain to us, to the Honorable Court why is it you
have to contract for the barges of Transport Ventures Incorporated in this
particular operation?
A: Firstly, we dont own any barges. That is why we hired the services of
another firm whom we know [al]ready for quite sometime, which is Transport
Ventures, Inc. (Emphasis supplied)
It is settled that under a given set of facts, a customs broker may be regarded
as a common carrier. Thus, this Court, in A.F. Sanchez Brokerage, Inc. v. The
Honorable Court of Appeals, held:
The appellate court did not err in finding petitioner, a customs broker, to
be also a common carrier, as defined under Article 1732 of the Civil Code,
to wit,
Art. 1732. Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for compensation,
offering their services to the public.
xxx
Article 1732 does not distinguish between one whose principal business
activity is the carrying of goods and one who does such carrying only as
an ancillary activity. The contention, therefore, of petitioner that it is not a
common carrier but a customs broker whose principal function is to
prepare the correct customs declaration and proper shipping documents
as required by law is bereft of merit. It suffices that petitioner undertakes
to deliver the goods for pecuniary consideration.
And in Calvo v. UCPB General Insurance Co. Inc., this Court held that as the
transportation of goods is an integral part of a customs broker, the customs
broker is also a common carrier. For to declare otherwise "would be to deprive
those with whom [it] contracts the protection which the law affords them
notwithstanding the fact that the obligation to carry goods for [its] customers, is
part and parcel of petitioners business."
As for petitioners argument that being the agent of Little Giant, any negligence
it committed was deemed the negligence of its principal, it does not persuade.
True, petitioner was the broker-agent of Little Giant in securing the release of
the cargoes. In effecting the transportation of the cargoes from the shipside and
into Little Giants warehouse, however, petitioner was discharging its own
personal obligation under a contact of carriage.
Petitioner, which did not have any barge or tugboat, engaged the services of TVI
as handler to provide the barge and the tugboat. In their Service Contract, while
Little Giant was named as the consignee, petitioner did not disclose that it was
acting on commission and was chartering the vessel for Little Giant. Little Giant
did not thus automatically become a party to the Service Contract and was not,
therefore, bound by the terms and conditions therein.
Not being a party to the service contract, Little Giant cannot directly sue TVI
based thereon but it can maintain a cause of action for negligence.
In the case of TVI, while it acted as a private carrier for which it was under no
duty to observe extraordinary diligence, it was still required to observe ordinary
diligence to ensure the proper and careful handling, care and discharge of the
carried goods.
Thus, Articles 1170 and 1173 of the Civil Code provide:
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.
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 the time and of the
place. When negligence shows bad faith, the provisions of articles 1171
and 2202, 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.
Was the reasonable care and caution which an ordinarily prudent person would
have used in the same situation exercised by TVI?
This Court holds not.
TVIs failure to promptly provide a tugboat did not only increase the risk that
might have been reasonably anticipated during the shipside operation, but was
the proximate cause of the loss. A man of ordinary prudence would not leave a
heavily loaded barge floating for a considerable number of hours, at such a
precarious time, and in the open sea, knowing that the barge does not have any
power of its own and is totally defenseless from the ravages of the sea. That it
was nighttime and, therefore, the members of the crew of a tugboat would be
charging overtime pay did not excuse TVI from calling for one such tugboat.
As for petitioner, for it to be relieved of liability, it should, following Article
1739 of the Civil Code, prove that it exercised due diligence to prevent or
minimize the loss, before, during and after the occurrence of the storm in order
that it may be exempted from liability for the loss of the goods.
While petitioner sent checkers and a supervisor on board the vessel to counter-
check the operations of TVI, it failed to take all available and reasonable
precautions to avoid the loss. After noting that TVI failed to arrange for the
prompt towage of the barge despite the deteriorating sea conditions, it should
have summoned the same or another tugboat to extend help, but it did not.
This Court holds then that petitioner and TVI are solidarily liable for the loss of
the cargoes. The following pronouncement of the Supreme Court is instructive:
The foundation of LRTAs liability is the contract of carriage and its
obligation to indemnify the victim arises from the breach of that contract
by reason of its failure to exercise the high diligence required of the
common carrier. In the discharge of its commitment to ensure the safety
of passengers, a carrier may choose to hire its own employees or avail
itself of the services of an outsider or an independent firm to undertake
the task. In either case, the common carrier is not relieved of its
responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only
be for tort under the provisions of Article 2176 and related provisions, in
conjunction with Article 2180 of the Civil Code. x x x [O]ne might ask
further, how then must the liability of the common carrier, on one hand,
and an independent contractor, on the other hand, be described? It would
be solidary. A contractual obligation can be breached by tort and when
the same act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article 2194 of the Civil Code
can well apply. In fine, a liability for tort may arise even under a contract,
where tort is that which breaches the contract. Stated differently, when
an act which constitutes a breach of contract would have itself constituted
the source of a quasi-delictual liability had no contract existed between
the parties, the contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.
As for Black Sea, its duty as a common carrier extended only from the time the
goods were surrendered or unconditionally placed in its possession and received
for transportation until they were delivered actually or constructively to
consignee Little Giant.
Parties to a contract of carriage may, however, agree upon a definition of
delivery that extends the services rendered by the carrier. In the case at bar,
Bill of Lading No. 2 covering the shipment provides that delivery be made "to
the port of discharge or so near thereto as she may safely get, always
afloat." The delivery of the goods to the consignee was not from "pier to pier"
but from the shipside of "M/V Alexander Saveliev" and into barges, for which
reason the consignee contracted the services of petitioner. Since Black Sea had
constructively delivered the cargoes to Little Giant, through petitioner, it had
discharged its duty.
In fine, no liability may thus attach to Black Sea.
Respecting the award of attorneys fees in an amount over P1,000,000.00 to
Industrial Insurance, for lack of factual and legal basis, this Court sets it aside.
While Industrial Insurance was compelled to litigate its rights, such fact by itself
does not justify the award of attorneys fees under Article 2208 of the Civil
Code. For no sufficient showing of bad faith would be reflected in a partys
persistence in a case other than an erroneous conviction of the righteousness of
his cause. To award attorneys fees to a party just because the judgment is
rendered in its favor would be tantamount to imposing a premium on ones right
to litigate or seek judicial redress of legitimate grievances.
As for the court a quos award of interest on the amount claimed, the same calls
for modification following the ruling in Eastern Shipping Lines, Inc. v. Court of
Appeals that when the demand cannot be reasonably established at the time the
demand is made, the interest shall begin to run not from the time the claim is
made judicially or extrajudicially but from the date the judgment of the court is
made (at which the time the quantification of damages may be deemed to have
been reasonably ascertained).
WHEREFORE, judgment is hereby rendered ordering petitioner Schmitz
Transport & Brokerage Corporation, and Transport Venture Incorporation jointly
and severally liable for the amount of P5,246,113.11 with the MODIFICATION
that interest at SIX PERCENT per annum of the amount due should be computed
from the promulgation on November 24, 1997 of the decision of the trial court.
Emergency and sudden peril doctrine
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE vs. INTERMEDIATE
APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo
Bridge along MacArthur Highway, between Angeles City and San Fernando,
Pampanga, a head-on-collision took place between an International cargo truck,
Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents,
and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850
Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh
McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the
Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors
George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was
the baby sitter of one and a half year old Kim. At the time of the collision, Kim
was seated on the lap of Loida Bondoc who was at the front passenger's seat of
the car while Araceli and her two (2) sons were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two
hundred (200) cavans of rice weighing about 10,000 kilos, was traveling
southward from Angeles City to San Fernando Pampanga, and was bound for
Manila. The Ford Escort, on the other hand, was on its way to Angeles City from
San Fernando. When the northbound car was about (10) meters away from the
southern approach of the bridge, two (2) boys suddenly darted from the right
side of the road and into the lane of the car. The boys were moving back and
forth, unsure of whether to cross all the way to the other side or turn back. Jose
Koh blew the horn of the car, swerved to the left and entered the lane of the
truck; he then switched on the headlights of the car, applied the brakes and
thereafter attempted to return to his lane. Before he could do so, his car collided
with the truck. The collision occurred in the lane of the truck, which was the
opposite lane, on the said bridge.
The incident was immediately reported to the police station in Angeles City;
consequently, a team of police officers was forthwith dispatched to conduct an
on the spot investigation. In the sketch prepared by the investigating officers,
the bridge is described to be sixty (60) "footsteps" long and fourteen (14)
"footsteps" wide seven (7) "footsteps" from the center line to the inner edge
of the side walk on both sides. Pulong Pulo Bridge, which spans a dry brook, is
made of concrete with soft shoulders and concrete railings on both sides about
three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the
cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its
left front portion was touching the center line of the bridge, with the smashed
front side of the car resting on its front bumper. The truck was about sixteen
(16) "footsteps" away from the northern end of the bridge while the car was
about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by
the right front tire of the truck measured nine (9) "footsteps", while skid marks
produced by the left front tire measured five (5) "footsteps." The two (2) rear
tires of the truck, however, produced no skid marks.
In his statement to the investigating police officers immediately after the
accident, Galang admitted that he was traveling at thirty (30) miles (48
kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No.
4478, were filed on 31 January 1977 before the then Court of First Instance of
Pampanga and were raffled to Branch III and Branch V of the said court,
respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the
award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as
moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation
expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and
P9,500.00 for the tomb, plus attorney's fees. In the second case, petitioners in
G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim
McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services,
P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral
damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous
damages; (b) in the case of Araceli Koh McKee, in connection with the serious
physical injuries suffered, the sum of P100,000.00 as moral damages,
P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00
for the hospitalization expenses up to the date of the filing of the complaint; and
(c) with respect to George McKee, Jr., in connection with the serious physical
injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as
exemplary damages and the following medical expenses: P3,400 payable to the
Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00
payable to the Clark Air Base Hospital, and miscellaneous expenses amounting
to P5,000.00. They also sought an award of attorney's fees amounting to 25%
of the total award plus traveling and hotel expenses, with costs.
On 1 March 1977, an Information charging Ruben Galang with the crime of
"Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries
and Damage to Property" was filed with the trial court. It was docketed as
Criminal Case No. 3751 and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned.
In their Answer with Counterclaim in Civil Case No. 4477, private respondents
asserted that it was the Ford Escort car which "invaded and bumped (sic) the
lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the
award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business losses.
In Civil Case No. 4478, private respondents first filed a motion to dismiss on
grounds of pendency of another action (Civil Case No. 4477) and failure to
implead an indispensable party, Ruben Galang, the truck driver; they also filed a
motion to consolidate the case with Civil Case No. 4477 pending before Branch
III of the same court, which was opposed by the plaintiffs. Both motions were
denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon,
private respondents filed their Answer with Counter-claim wherein they alleged
that Jose Koh was the person "at fault having approached the lane of the truck
driven by Ruben Galang, . . . which was on the right lane going towards Manila
and at a moderate speed observing all traffic rules and regulations applicable
under the circumstances then prevailing;" in their counterclaim, they prayed for
an award of damages as may be determined by the court after due hearing, and
the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of
litigation.
There is merit in the petition. Before We take on the main task of dissecting the
arguments and counter-arguments, some observations on the procedural
vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability
arising from a quasi-delict under Article 2176 in relation to Article 2180 of the
Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was
eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of
the trial court. The records do not indicate any attempt on the part of the
parties, and it may therefore be reasonably concluded that none was made, to
consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The
parties may have then believed, and understandably so, since by then no
specific provision of law or ruling of this Court expressly allowed such a
consolidation, that an independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the civil cases in this case,
cannot be consolidated with the criminal case. Indeed, such consolidation could
have been farthest from their minds as Article 33 itself expressly provides that
the "civil action shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence." Be that as it may, there was
then no legal impediment against such consolidation. Section 1, Rule 31 of the
Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the
work of the trial court, or in short, attain justice with the least expense to the
parties litigants, would have easily sustained a consolidation, thereby preventing
the unseeming, if no ludicrous, spectacle of two (2) judges appreciating,
according to their respective orientation, perception and perhaps even prejudice,
the same facts differently, and thereafter rendering conflicting decisions. Such
was what happened in this case. It should not, hopefully, happen anymore. In
the recent case of Cojuangco vs. Court or Appeals, this Court held that the
present provisions of Rule 111 of the Revised Rules of Court allow a
consolidation of an independent civil action for the recovery of civil liability
authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal
action subject, however, to the condition that no final judgment has been
rendered in that criminal case.
As We held in Dionisio vs. Alvendia, the responsibility arising from fault or
negligence in a quasi-delict is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. And, as more concretely stated in
the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil
actions under the new Civil Code, the result of the criminal case, whether
acquittal or conviction, would be entirely irrelevant to the civil action." In Salta
vs. De Veyra and PNB vs. Purisima, this Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions
mentioned in Article 33, permitted in the same manner to be filed
separately from the criminal case, may proceed similarly regardless of the
result of the criminal case.
Indeed, when the law has allowed a civil case related to a criminal case,
to be filed separately and to proceed independently even during the
pendency of the latter case, the intention is patent to make the court's
disposition of the criminal case of no effect whatsoever on the separate
civil case. This must be so because the offenses specified in Article 33 are
of such a nature, unlike other offenses not mentioned, that they may be
made the subject of a separate civil action because of the distinct
separability of their respective juridical cause or basis of action . . . .
What remains to be the most important consideration as to why the decision in
the criminal case should not be considered in this appeal is the fact that private
respondents were not parties therein. It would have been entirely different if the
petitioners' cause of action was for damages arising from a delict, in which case
private respondents' liability could only be subsidiary pursuant to Article 103 of
the Revised Penal Code. In the absence of any collusion, the judgment of
conviction in the criminal case against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private respondents.
And now to the merits of the petition.
Jose Koh's entry into the lane of the truck was necessary in order to avoid what
was, in his mind at that time, a greater peril death or injury to the two (2)
boys. Such act can hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate
Appellate Court, thus:
. . . 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 (Black's Law Dictionary, Fifth Edition, 930),
or as Judge Cooley defines it, "(T)he 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." (Cooley on Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years
ago but still a sound rule, (W)e held:
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 paterfamiliasof the Roman
law. . . .
In Corliss vs. Manila Railroad Company, We held:
. . . Negligence is want of the care required by the circumstances. It is a
relative or comparative, not an absolute, term and its application depends
upon the situation of the parties and the degree of care and vigilance
which the circumstances reasonably require. Where the danger is great, a
high degree of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances. (citing Ahern v. Oregon Telephone
Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts
obtaining in this case, it is manifest that no negligence could be imputed to Jose
Koh. Any reasonable and ordinary prudent man would have tried to avoid
running over the two boys by swerving the car away from where they were even
if this would mean entering the opposite lane. Avoiding such immediate peril
would be the natural course to take particularly where the vehicle in the
opposite lane would be several meters away and could very well slow down,
move to the side of the road and give way to the oncoming car. Moreover, under
what is known as the emergency rule, "one who suddenly finds himself in a
place of danger, and is required to act without time to consider the best means
that may be adopted to avoid the impending danger, is not guilty of negligence,
if he fails to adopt what subsequently and upon reflection may appear to have
been a better method, unless the emergency in which he finds himself is
brought about by his own negligence."
Considering the sudden intrusion of the two (2) boys into the lane of the car, We
find that Jose Koh adopted the best means possible in the given situation to
avoid hitting them. Applying the above test, therefore, it is clear that he was not
guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said
that his negligence was the proximate cause of the collision. 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. 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.
Applying the above definition, although it may be said that the act of Jose Koh,
if at all negligent, was the initial act in the chain of events, it cannot be said that
the same caused the eventual injuries and deaths because of the occurrence of
a sufficient intervening event, the negligent act of the truck driver, which was
the actual cause of the tragedy. The entry of the car into the lane of the truck
would not have resulted in the collision had the latter heeded the emergency
signals given by the former to slow down and give the car an opportunity to go
back into its proper lane. Instead of slowing down and swerving to the far right
of the road, which was the proper precautionary measure under the given
circumstances, the truck driver continued at full speed towards the car. The
truck driver's negligence becomes more apparent in view of the fact that the
road is 7.50 meters wide while the car measures 1.598 meters and the truck,
2.286 meters, in width. This would mean that both car and truck could pass side
by side with a clearance of 3.661 meters to spare. Furthermore, the bridge has
a level sidewalk which could have partially accommodated the truck. Any
reasonable man finding himself in the given situation would have tried to avoid
the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his
truck was running at 30 miles (48 kilometers) per hour along the bridge while
the maximum speed allowed by law on a bridge is only 30 kilometers per hour.
Under Article 2185 of the Civil Code, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation.
Clearly, therefore, it was the truck driver's subsequent negligence in failing to
take the proper measures and degree of care necessary to avoid the collision
which was the proximate cause of the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds
application here. Last clear chance is a doctrine in the law of torts which states
that the contributory negligence of the party injured will not defeat the claim for
damages if it is shown that the defendant might, by the exercise of reasonable
care and prudence, have avoided the consequences of the negligence of the
injured party. In such cases, the person who had the last clear chance to avoid
the mishap is considered in law solely responsible for the consequences thereof.
In Bustamante vs. Court of Appeals, We held:
The respondent court adopted the doctrine of "last clear chance." The
doctrine, stated broadly, is that the negligence of the plaintiff does not
preclude a recovery for the negligence of the defendant where it appears
that the defendant, by exercising reasonable care and prudence, might
have avoided injurious consequences to the plaintiff notwithstanding the
plaintiff's negligence. In other words, the doctrine of last clear chance
means that even though a person's own acts may have placed him in a
position of peril, and an injury results, the injured person is entitled to
recovery (sic). As the doctrine is usually stated, a person who has the last
clear chance or opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent or that of a third person imputed to the
opponent is considered in law solely responsible for the consequences of
the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held
liable to a negligent plaintiff, or even to a plaintiff who has been grossly
negligent in placing himself in peril, if he, aware of the plaintiff's peril, or
according to some authorities, should have been aware of it in the
reasonable exercise of due care, had in fact an opportunity later than that
of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, We ruled:
The doctrine of last clear chance was defined by this Court in the case of
Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of
prior or antecedent negligence but the defendant, who had the last fair
chance to avoid the impending harm and failed to do so, is made liable for
all the consequences of the accident notwithstanding the prior negligence
of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber
and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda.
de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent
negligence of the defendant in failing to exercise ordinary care to avoid
injury to plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more remote
negligence of the plaintiff, thus making the defendant liable to the plaintiff
[Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of
making a defendant liable to a plaintiff who was guilty of prior or
antecedent negligence, although it may also be raised as a defense to
defeat claim (sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it
was the truck driver's negligence in failing to exert ordinary care to avoid the
collision which was, in law, the proximate cause of the collision. As employers of
the truck driver, the private respondents are, under Article 2180 of the Civil
Code, directly and primarily liable for the resulting damages. The presumption
that they are negligent flows from the negligence of their employee. That
presumption, however, is only juris tantum, not juris et de jure. Their only
possible defense is that they exercised all the diligence of a good father of a
family to prevent the damage. Article 2180 reads as follows:
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.
xxx xxx xxx
 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.
xxx xxx xxx
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 diligence of a good father referred to means the diligence in the selection
and supervision of employees. The answers of the private respondents in Civil
Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they
attempt to prove it.
In the light of recent decisions of this Court, the indemnity for death must,
however, be increased from P12,000.00 to P50,000.00.
Protection of Public welfare or safety In general, acts pertaining to the public
welfare, convenience, necessity or safety which conflcict with private rights are
not tortious. This doctirne of necessity applies with special force to the
preservation of human life, but is not confined thereto. However, although
conduct be non-tortious by reason of necessity, a subsequent exceeding of ones
authority may constitute one a trespasser ab initio.
Contributory negligence is conduct on the part of the plaintiff which falls below
the standard of conduct to which he should conform for his own protection and
cooperates with the negligence of defendant in bringing about the plaintiffs
harm.
General Rule, not a defense. Plaintiff may recover damages but the courts shall
mitigate the damages to be awarded. A plaintiff will be barred to from recovery
not by mere contributory negligence but, if he has discovered the danger, from
the defendants activity, by his own wanton, willful, or reckless misconduct
which materially increases the probabilities of injury or which amounts to an
invitation to injury, or at least indifference to consequences. For plaintiffs
conduct to bar recovery altogether, his negligence towards his protection must
be cause-in-fact and a proximate cause of the accident resulting in damage or
injury.
If the negligent defendant had the last clear chance to avoid causing damage or
injury to the plaintiff, then the plaintiffs contributory negligence is not a bar to
recovery.
On the other hand, if the plaintiff was the one who had the last clear opportunity
up until the moment of injury of avoiding harm to himself, his failrue to take
that chance by the exercise of reasonable care has the effect of relieving the
defendant from liability unless the plaintiffs negligence is merely contributory to
his injury and not the proximate cause thereof.
A plaintiff who fully understands a risk of harm to himself or his property
brought about by the defendant but nevertheless voluntarily chooses to assume
it is not entitled to reovery. By voluntarily exposing himself or his property
interests to a risk, the plaintiff is deemed to consent to that risk.
Spouses could not sue each other, generally.
Parent-child immunity precludes tort actions between paretns and their non-
adult children.
Governmental immunity.
To act with justice, give everyone his due; and to observe honesty and good
faith.

A right, though by itself legal, may nevertheless become the source of some
illegality.

When exercised in a manner which does not conform with the norms in Article
19 as when it is exercised unjustly, arbitrarily or excessively, resulting in
damage to another, a legal wrong is thereby committed for which the wrongdoer
must be held responsible. There us abuse of right when it is exercised solely to
injure or prejudice another.

Art. 20 Every person who, contrary to law, willfully or negligently causes

damage to another, shall indemnify the latter for the same.

This furnishes the general sanction for violations of other laws which do not
specifically provide any sanction, penalty or liability for such violation but
nevertheless violates certain rudimentary rights of the injured or aggrieved
party.

It is essential that the act is voluntary

Art. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.

Contra bonos mores.

May arise even from acts which do not constitute a violation of law if contrary to
morals, good customs or public policy.