Plaintiff’s negligence

EN BANC
[G.R. No. L-8328. May 18, 1956.]
MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his own
behalf and as guardian of the minors MANUEL, BENJAMIN, NESTOR, MILAGROS,
CORAZON, CLEMENTE and AURORA, all surnamed MAGNO, SALUD MAGNO, and
the COURT OF APPEALS (Second Division), Respondents.

DECISION
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his stepbrother,
located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said to be in a leaking
condition. The “media agua” was just below the window of the third story. Standing on said “media
agua”, Magno received from his son thru that window a 3’ X 6’ galvanized iron sheet to cover
the leaking portion, turned around and in doing so the lower end of the iron sheet came into
contact with the electric wire of the Manila Electric Company (later referred to as the Company)
strung parallel to the edge of the “media agua” and 2 1/2 feet from it, causing his death by
electrocution. His widow and children fled suit to recover damages from the company. After
hearing, the trial court rendered judgment in their favor — P10,000 as compensatory damages;
P784 as actual damages; P2,000 as moral and exemplary damages; P3,000 as attorney’s fees, with
costs. On appeal to the Court of Appeals, the latter affirmed the judgment with slight modification
by reducing the attorney’s fees from P3,000 to P1,000 with costs. The electric company has
appealed said decision to us.
The findings of fact made by the Court of Appeals which are conclusive are stated in the following
portions of its decision which we reproduce below:chanroblesvirtuallawlibrary
“The electric wire in question was an exposed, uninsulated primary wire stretched between poles
on the street and carrying a charge of 3,600 volts. It was installed there some two years before
Peñaloza’s house was constructed. The record shows that during the construction of said house a
similar incident took place, although fortunate]y with much less tragic consequences. A piece of
wood which a carpenter was holding happened to come in contact with the same wire, producing
some sparks. The owner of the house forthwith complained to Defendant about the danger which
the wire presented, and as a result Defendant moved one end of the wire farther from the house by
means of a brace, but left the other end where it was.
“At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the
distance from the electric wire to the edge of the ‘media agua’ on which the deceased was making
repairs was only 30 inches or 2 1/2 feet. Regulations of the City of Manila required that ‘all wires
be kept three feet from the building.’ Appellant contends that in applying said regulations to
the case at bar the reckoning should not be from the edge of the ‘media agua’ but from the
side of the house and that, thus measured, the distance was almost 7 feet, or more then the
minimum prescribed. This contention is manifestly groundless, for not only is a ‘media agua’ an
integral part of the building to which it is attached but to exclude it in measuring the distance would
defeat the purpose of the regulation. Appellant points out, nevertheless, that even assuming that
the distance, within the meaning of the city regulations, should be measured from the edge of the
‘media agua’, the fact that in the case of the house involved herein such distance was actually
less than 3 feet was due to the fault of the owner of said house, because the city authorities gave
him a permit to construct a ‘media agua’ only one meter or 39 1/2 inches wide, but instead he built
one having a width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the authorities,
thereby reducing the distance to the electric wire to less than the prescribed minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the
city authorities for the construction of the ‘media agua’, and that if he had not done so Appellants
wire would have been 11 3/8 (inches) more than the required distance of three feet from the edge
of the ‘media agua’. It is also a fact, however, that after the ‘media agua’ was constructed the
owner was given a final permit of occupancy of the house.
“The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according
to Appellant, no insulation that could have rendered it safe, first, because there is no insulation
material in commercial use for such kind of wire and secondly, because the only insulation material
that may be effective is still in the experimental stage of development and, anyway, its costs would
be prohibitive… ”
The theory followed by the appellate court in finding for the Plaintiff is that although the owner of
the house in constructing the “media agua” in question exceeded the limits fixed in the permit, still,
after making that “media agua”, its construction though illegal, was finally approved because he
was given a final permit to occupy the house; that it was the company that was at fault and was
guilty of negligence because although the electric wire in question had been installed long before
the construction of the house and in accordance with the ordinance fixing a minimum of 3 feet,
mere compliance with the regulations does not satisfy the requirement of due diligence nor avoid
the need for adopting such other precautionary measures as may be warranted; that negligence
cannot be determined by a simple matter of inches; that all that the city did was to prescribe certain
minimum conditions and that just because the ordinance required that primary electric wires should
be not less than 3 feet from any house, the obligation of due diligence is not fulfilled by placing
such wires at a distance of 3 feet and one inch, regardless of other factors. The appellate court,
however, refrained from stating or suggesting what other precautionary measures could and should
have been adopted.
After a careful study and discussion of the case and the circumstances surrounding the same, we
are inclined to agree to the contention of Petitioner Company that the death of Magno was
primarily caused by his own negligence and in some measure by the too close proximity of the
“media agua” or rather its edge to the electric wire of the company by reason of the violation of
the original permit given by the city and the subsequent approval of said illegal construction of the
“media agua”. We fail to see how the Company could be held guilty of negligence or as lacking in
due diligence. Although the city ordinance called for a distance of 3 feet of its wires from any
building, there was actually a distance of 7 feet and 2 3/4 inches of the wires from the side of the
house of Peñaloza. Even considering said regulation distance of 3 feet as referring not to the side
of a building, but to any projecting part thereof, such as a “media agua”, had the house owner
followed the terms of the permit given him by the city for the construction of his “media agua”,
namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge of said “media
agua” would have been 3 feet and 11 3/8 inches. In fixing said one meter width for the “media
agua” the city authorities must have wanted to preserve the distance of at least 3 feet between the
wires and any portion of a building. Unfortunately, however, the house owner disregarding the
permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving only a distance of
2 1/2 feet between the “Media agua” as illegally constructed and the electric wires. And added to
this violation of the permit by the house owner, was its approval by the city through its agent,
possibly an inspector. Surely we cannot lay these serious violations of a city ordinance and
permit at the door of the Company, guiltless of breach of any ordinance or regulation. The
Company cannot be expected to be always on the lookout for any illegal construction which
reduces the distance between its wires and said construction, and after finding that said
distance of 3 feet had been reduced, to change the stringing or installation of its wires so as
to preserve said distance. It would be much easier for the City, or rather it is its duty, to be ever
on the alert and to see to it that its ordinances are strictly followed by house owners and to condemn
or disapprove all illegal constructions. Of course, in the present case, the violation of the permit
for the construction of the “media agua” was not the direct cause of the accident. It merely
contributed to it. Had said “media agua” been only one meter wide as allowed by the permit,
Magno standing on it, would instinctively have stayed closer to or hugged the side of the house in
order to keep a safe margin between the edge of the “media agua” and the yawning 2-story distance
or height from the ground, and possibly if not probably avoided the fatal contact between the lower
end of the iron sheet and the wires.
We realize that the presence of the wires in question quite close to the house or its “media agua”
was always a source of danger considering their high voltage and uninsulated as they were, but the
claim of the company and the reasons given by it for not insulating said wires were unrefuted as
we gather from the findings of the Court of Appeals, and so we have to accept them as satisfactory.
Consequently, we may not hold said company as guilty of negligence or wanting in due
diligence in failing to insulate said wires. As to their proximity to the house it is to be supposed
that distance of 3 feet was considered sufficiently safe by the technical men of the city such as its
electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet would have increased
the margin of safety but other factors had to be considered such as that the wires could not be
strung or the posts supporting them could not be located too far toward the middle of the street.
Thus, the real cause of the accident or death was the reckless or negligent act of Magno
himself. When he was called by his stepbrother to repair the “media agua” just below the third
story window, it is to be presumed that due to his age and experience he was qualified to do
so. Perhaps he was a tinsmith or carpenter and had training and experience for the job. So, he could
not have been entirely a stranger to electric wires and the danger lurking in them. But unfortunately,
in the instant case, his training and experience failed him, and forgetting where he was standing,
holding the 6-feet iron sheet with both hands and at arms length, evidently without looking, and
throwing all prudence and discretion to the winds, he turned around swinging his arms with the
motion of his body, thereby causing his own electrocution.
In support of its theory and holding that Defendant-Appellant was liable for damages the Court of
Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the case
is exactly applicable. There, the premises involved was that elevated portion or top of the walls of
Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the Court, it was “a public
place where persons come to stroll, to rest and to enjoy themselves”. The electric company was
clearly negligent in placing its wires so near the place that without much difficulty or exertion, a
person by stretching his hand out could touch them. A boy named Astudillo, placing one foot on
a projection, reached out and actually grasped the electric wire and was electrocuted. The person
electrocuted in said case was a boy who was in no position to realize the danger. In the present
case, however, the wires were well high over the street where there was no possible danger to
pedestrians. The only possible danger was to persons standing on the “media agua”, but a “media
agua” can hardly be considered a public place where persons usually gather. Moreover, a person
standing on the “media agua” could not have reached the wires with his hands alone. It was
necessary as was done by Magno to hold something long enough to reach the wire. Furthermore,
Magno was not a boy or a person immature but the father of a family, supposedly a tinsmith trained
and experienced in the repair of galvanized iron roofs and “media agua”. Moreover, in that very
case of Astudillo vs. Manila Electric Co., supra, the court said that although it is a well- established
rule that the liability of electric companies for damages or personal injuries is governed by the
rules of negligence, nevertheless such companies are not insurers of the safety of the public.
But even assuming for a moment that under the facts of the present case the Defendant electric
company could be considered negligent in installing its electric wires so close to the house and
“media agua” in question, and in failing to properly insulate those wires (although according to
the unrefuted claim of said company it was impossible to make the insulation of that kind of wire),
nevertheless to hold the Defendant liable in damages for the death of Magno, such supposed
negligence of the company must have been the proximate and principal cause of the accident,
because if the act of Magno in turning around and swinging the galvanized iron sheet with his
hands was the proximate and principal cause of the electrocution, then his heirs may not recover.
Such was the holding of this Court in the case of Taylor vs. Manila Electric Railroad and Light
Company, 16 Phil., 8. In that case, the electric company was found negligent in leaving scattered
on its premises fulminating caps which Taylor, a 15- year old boy found and carried home. In the
course of experimenting with said fulminating caps, he opened one of them, held it out with his
hands while another boy applied a lighted match to it, causing it to explode and injure one of his
eyes eventually causing blindness in said eye. Said this Tribunal in denying recovery for the injury:
“so that while it may be true that these injuries would not have been incurred but for the negligent
act of the Defendant in leaving the caps exposed on its premises, nevertheless Plaintiff’s own act
was the proximate and principal cause of the accident which inflicted the injury.”
To us it is clear that the principal and proximate cause of the electrocution was not the electric
wire, evidently a remote cause, but rather the reckless and negligent act of Magno in turning around
and swinging the galvanized iron sheet without taking any precaution, such as looking back toward
the street and at the wire to avoid its contacting said iron sheet, considering the latter’s length of 6
feet. For a better understanding of the rule on remote and proximate cause with respect to injuries,
we find the following citation helpful:chanroblesvirtuallawlibrary
“A prior and remote cause cannot be made the basis of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible,
if there intervened between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would not have happened but
for such condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the circumstances which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate cause.” (45 C.J.
pp. 931-332.).
We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close
to houses is a constant source of danger, even death, especially to persons who having occasion to
be near said wires, do not adopt the necessary precautions. But may be, the City of Manila
authorities and the electric company could get together and devise means of minimizing this
danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares may greatly
minimize danger to pedestrians because drivers of motor vehicles may expect danger and slow
down or even stop and take other necessary precaution upon approaching said lanes, so, a similar
way may possibly be found. Since these high voltage wires cannot be properly insulated and at
reasonable cost, they might perhaps be strung only up to the outskirts of the city where there are
few houses and few pedestrians and there step-down to a voltage where the wires carrying the
same to the city could be properly insulated for the better protection of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is hereby reversed and
the complaint filed against the Company is hereby dismissed. No costs.

SECOND DIVISION
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN,
respondents.

REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance
of Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance
Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30,
1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation
allegedly undertaken by PLDT for the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left
uncovered because of the creeping darkness and the lack of any warning light or signs. As a result
of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face,
leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition,
the windshield of the jeep was shattered.2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent
spouses were the result of their own negligence and that the entity which should be held responsible,
if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook
the construction of the manhole and the conduit system.3 Accordingly, PLDT filed a third-party
complaint against Barte alleging that, under the terms of their agreement, PLDT should in no
manner be answerable for any accident or injuries arising from the negligence or carelessness of
Barte or any of its employees.4 In answer thereto, Barte claimed that it was not aware nor was it
notified of the accident involving respondent spouses and that it had complied with the terms of
its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of
the work site, with barricades at both ends of the excavation and with red lights at night along the
excavated area to warn the traveling public of the presence of excavations.5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal
part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long
Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from the date of the filing
of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff
the sum of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the
defendant-third party plaintiff has paid to the plaintiff. With costs against the
defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to
the amount of damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision
in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of
the lower court and dismissing the complaint of respondent spouses. It held that respondent
Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for
damages.7 A copy of this decision was received by private respondents on October 10, 1979. 8 On
October 25, 1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9
On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for
reconsideration.10 This resolution was received by respondent spouses on February 22, 1980.11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for
leave of court to file a second motion for reconsideration, dated February 27, 1980. 12 On
March 11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed
respondents to file a second motion for reconsideration, within ten (10) days from notice thereof.
13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second
motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the
resolution of the second motion for reconsideration, designated two additional justices to form a
division of five.16 On September 3, 1980, said division of five promulgated its resolution, penned
by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in toto the decision of the lower court.17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of
the resolution of September 3, 1980, contending that the second motion for reconsideration of
private respondent spouses was filed out of time and that the decision of September 25, 1979
penned by Justice Agrava was already final. It further submitted therein that the relationship of
Barte and petitioner PLDT should be viewed in the light of the contract between them and, under
the independent contractor rule, PLDT is not liable for the acts of an independent contractor.18
On May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to
set aside and/or for reconsideration and affirming in toto the decision of the lower court dated
October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September
25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already
final, and on the additional ground that said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying
the independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records
and admitted by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with
Justice Agrava as ponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for
reconsideration;
 (e) February 22, 1980, a copy of said denial resolution was received by private
respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration
was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private
respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second
motion for reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing
the original decision dated September 25, 1979 and setting aside the resolution
dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second
motion for reconsideration and, consequently, said second motion for reconsideration itself were
filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided
that a second motion for reconsideration may be presented within fifteen (15) days from notice of
the order or judgment deducting the time in which the first motion has been pending. 20 Private
respondents having filed their first motion for reconsideration on the last day of the reglementary
period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the
order denying said motion to file, with leave of court, a second motion for reconsideration. 21 In
the present case, after their receipt on February 22, 1980 of the resolution denying their first motion
for reconsideration, private respondents had two remedial options. On February 23, 1980, the
remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for
leave of court to file a second motion for reconsideration, conceivably with a prayer for the
extension of the period within which to do so. On the other hand, they could have appealed through
a petition for review on certiorari to this Court within fifteen (15) days from February 23, 1980.
22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on February
29, 1980, and said second motion for reconsideration on March 7, 1980, both of which motions
were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the
running of which was suspended during the pendency of the first motion for reconsideration, the
Court of Appeals could no longer validly take further proceedings on the merits of the case, much
less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing of the motion
for leave to file a second motion for reconsideration by herein respondents on February 29, 1980
and the subsequent filing of the motion itself on March 7, 1980, after the expiration of the
reglementary period to file the same, produced no legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting
private respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to
file a second motion for reconsideration, is null and void. The period for filing a second motion
for reconsideration had already expired when private respondents sought leave to file the same,
and respondent court no longer had the power to entertain or grant the said motion. The aforesaid
extension of ten (10) days for private respondents to file their second motion for reconsideration
was of no legal consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the expiration of
the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said
extension for filing a second motion for reconsideration is conditioned upon the timeliness of the
motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent
court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second
motion for reconsideration and reversing the original decision are null and void and cannot disturb
the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the
accepted rule that once a decision has become final and executory it is removed from the power
and jurisdiction of the court which rendered it to further alter or amend, much less revoke it.25
The decision rendered anew is null and void.26 The court's inherent power to correct its own errors
should be exercised before the finality of the decision or order sought to be corrected, otherwise
litigation will be endless and no question could be considered finally settled. Although the granting
or denial of a motion for reconsideration involves the exercise of discretion,27 the same should
not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law,
justice, reason and equity.28
Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find
no error in the findings of the respondent court in its original decision that the accident which
befell private respondents was due to the lack of diligence of respondent Antonio Esteban and
was not imputable to negligent omission on the part of petitioner PLDT. Such findings were
reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by
the respondent court's resolution of January 24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had
remained on that inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by
the jeep swerving from the left that is, swerving from the inside lane. What caused
the swerving is not disclosed; but, as the cause of the accident, defendant cannot be
made liable for the damages suffered by plaintiffs. The accident was not due to
the absence of warning signs, but to the unexplained abrupt swerving of the
jeep from the inside lane. That may explain plaintiff-husband's insistence that he
did not see the ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the
ACCIDENT MOUND could have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.
 It has been stated that the ditches along Lacson Street had already been covered
except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-
1 shows that the ditches on Lacson Street north of the ACCIDENT MOUND had
already been covered, but not in such a way as to allow the outer lane to be freely
and conveniently passable to vehicles. The situation could have been worse to the
south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband
claimed. At that speed, he could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT
MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been braked at 25 kilometers an hour,
plaintiff's would not have been thrown against the windshield and they would not
have suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on
the inside lane and for some reason or other it had to swerve suddenly to the right
and had to climb over the ACCIDENT MOUND, then plaintiff-husband had not
exercised the diligence of a good father of a family to avoid the accident. With the
drizzle, he should not have run on dim lights, but should have put on his regular
lights which should have made him see the ACCIDENT MOUND in time. If he
was running on the outside lane at 25 kilometers an hour, even on dim lights, his
failure to see the ACCIDENT MOUND in time to brake the car was negligence on
his part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet
high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he
would not have seen any warning sign either. He knew of the existence and location
of the ACCIDENT MOUND, having seen it many previous times. With ordinary
precaution, he should have driven his jeep on the night of the accident so as to avoid
hitting the ACCIDENT MOUND.29
The above findings clearly show that the negligence of respondent Antonio Esteban was not
only contributory to his injuries and those of his wife but goes to the very cause of the occurrence
of the accident, as one of its determining factors, and thereby precludes their right to recover
damages.30 The perils of the road were known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even assuming arguendo that there was some
alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose
of said signs was to inform and warn the public of the presence of excavations on the site. The
private respondents already knew of the presence of said excavations. It was not the lack of
knowledge of these excavations which caused the jeep of respondents to fall into the excavation
but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound.
As opined in some quarters, the omission to perform a duty, such as the placing of warning signs
on the site of the excavation, constitutes the proximate cause only when the doing of the said
omitted act would have prevented the injury.31 It is basic that private respondents cannot charge
PLDT for their injuries where their own failure to exercise due and reasonable care was the cause
thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of
caution for his own protection. Furthermore, respondent Antonio Esteban had the last clear chance
or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT.
As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the
presence and location of the excavations there. It was his negligence that exposed him and his wife
to danger, hence he is solely responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that
there was insufficient evidence to prove any negligence on the part of PLDT. We have for
consideration only the self-serving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence of a police report of the
incident and the non-submission of a medical report from the hospital where private respondents
were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —
(a) There was no third party eyewitness of the accident. As to how the accident
occurred, the Court can only rely on the testimonial evidence of plaintiffs
themselves, and such evidence should be very carefully evaluated, with defendant,
as the party being charged, being given the benefit of any doubt. Definitely without
ascribing the same motivation to plaintiffs, another person could have deliberately
engineered a similar accident in the hope and expectation that the Court can grant
him substantial moral and exemplary damages from the big corporation that
defendant is. The statement is made only to stress the disadvantageous position of
defendant which would have extreme difficulty in contesting such person's claim.
If there were no witness or record available from the police department of Bacolod,
defendant would not be able to determine for itself which of the conflicting
testimonies of plaintiffs is correct as to the report or non-report of the accident to
the police department.32
A person claiming damages for the negligence of another has the burden of proving the existence
of such fault or negligence causative thereof. The facts constitutive of negligence must be
affirmatively established by competent evidence.33 Whosoever relies on negligence for his cause
of action has the burden in the first instance of proving the existence of the same if contested,
otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and
September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on September
25,1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.
Contributory negligence
FIRST DIVISION
G.R. No. L-40452 October 12, 1989
GREGORIO GENOBIAGON, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Mario D. Ortiz for petitioner.

GRIÑO-AQUINO, J.:
This is a petition for review of the Court of Appeals' decision in CA-G.R. No. 09949-CR, dated
October 10, 1974, affirming the conviction of the petitioner of the crime of homicide thru reckless
imprudence.
As found by the Court of Appeals, the facts of this case are:
On December 31,1959, at about 7:30 o'clock in the evening, a rig driven by
appellant bumped an old woman who was crossing T. Padilla St., Cebu City, at the
right side of T. Padilla Market. The appellant's rig was following another at a
distance of two meters. The old woman started to cross when the first rig was
approaching her, but as appellant's vehicle was going so fast not only because of
the steep down-grade of the road, but also because he was trying to overtake the
rig ahead of him, the appellant's rig bumped the old woman, who as a consequence,
fell at the middle of the road. The appellant continued to drive on, but a by-
stander, one Vicente Mangyao, who just closed his store in market in order to
celebrate the coming of the New Year, and who saw the incident right before him,
shouted at the appellant to stop. He ran after appellant when the latter refused to
stop. Overtaking the appellant, Mangyao asked him why he bumped the old woman
and his answer was, 'it was the old woman that bumped him.' The appellant went
back to the place where the old woman was struck by his rig. The old woman was
unconscious, and the food and viands she was carrying were scattered on her body.
The victim was then loaded in a jeep and brought to the hospital where she died
three hours later (Exh. C). The findings after an autopsy are as follows:
Contusion with Hematoma Left, Frontal and Occipito-Parietal
Regionas Fracture Occipito-Parietal Bone Cerebral Hemorrhage.
The deceased was an eighty-one-year old woman named Rita B. Cabrera. (pp. 31-
32, Rollo.)
Petitioner was charged with homicide thru reckless imprudence in the Court of First Instance of
Cebu (Crim. Case No. V7855). The trial court found petitioner guilty of the felony charged and
sentenced him to "suffer an indeterminate penalty of three (3) months of arresto mayor as
minimum to one (1) year, one (1) month and eleven (11) days of prision correccional as maximum,
to indemnify the heirs of Rita Banzon Cabrera the sum of P6,000 with subsidiary imprisonment in
case of insolvency, not to exceed 1/3 of the principal penalty and to pay the costs" (p. 3, Appellant's
Brief, p. 56, Rollo).
The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October 10,1974,
[affirmed the] conviction of the accused but increased his civil liability to P12,000. The dispositive
portion of its decision reads:
WHEREFORE, finding no error in the judgment appealed from except in the
amount of indemnity to be paid to the heirs of the deceased, Rita B. Cabrera, which
is the sum of P6,000.00 with subsidiary imprisonment in case of insolvency which
should be raised to P12,000.00 (People vs. Pantoja, G.R. No. L-18793, October 11,
1968, 25 SCRA 468) but without subsidiary imprisonment in case of insolvency,
the same should be, as it is hereby affirmed in all other respects with costs. (P. 37,
Rollo.)
After his motion for reconsideration of the Court of Appeals' decision was denied, he filed a
petition for review in this Court, alleging that the Court of Appeals erred:
1. in not finding that the reckless negligence of the victim was the proximate cause
of the accident which led to her death;
2. in not acquitting the petitioner on the ground of reasonable doubt; and
3. in unjustly increasing the civil liability of the petitioner from P6,000.00 to
P12,000.00, although the circumstances of the victim and the accused (petitioner)
do not warrant such increase.
It is quite evident that all the issues raised in the petition for review are factual. Well-entrenched
in our jurisprudence is the rule that findings of fact of the trial court and the Court of Appeals are
binding upon us (Bernardo vs. Bernardo, 101 SCRA 351; Vda. De Roxas vs. IAC, 143 SCRA 77;
Republic vs. IAC, 144 SCRA 705).
The alleged contributory negligence of the victim, if any, does not exonerate the accused.
"The defense of contributory negligence does not apply in criminal cases committed through
reckless imprudence, since one cannot allege the negligence of another to evade the effects of
his own negligence (People vs. Orbeta, CA-G.R. No. 321, March 29,1947)." (People vs. Quinones,
44 O.G. 1520).
The petitioner's contention that the Court of Appeals unjustly increased his civil liability to
P12,000, is devoid of merit. The prevailing jurisprudence in fact provides that indemnity for death
in homicide or murder is P30,000 (People vs. De la Fuente, [1983]126 SCRA 518; People vs.
Centeno, 130 SCRA 198). Accordingly, the civil liability of the petitioner is increased to P30,000.
WHEREFORE, the appealed decision is affirmed with modification as to the civil liability of the
petitioner which is hereby increased to P30,000. Costs against petitioner.
SO ORDERED.
 EN BANC
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to the
company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this
work. The defendant has proved that there were two immediately following one another, upon
which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails
lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent
them from slipping off. According to the testimony of the plaintiff, the men were either in the rear
of the car or at its sides. According to that defendant, some of them were also in front, hauling by
a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the car either
canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards
amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the negligence
of the defendant. The detailed description by the defendant's witnesses of the construction and
quality of the track proves that if was up to the general stranded of tramways of that character, the
foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to
10 feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the
same thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the
blocks were the ties to which the tracks were fastened. After the road reached the water's edge, the
blocks or crosspieces were replaced with pilling, capped by timbers extending from one side to the
other. The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about
18 inches apart. It was admitted that there were no side pieces or guards on the car; that where no
ends of the rails of the track met each other and also where the stringers joined, there were no fish
plates. the defendant has not effectually overcome the plaintiff's proof that the joints between the
rails were immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted
in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the
stringer by the water of the bay raised by a recent typhoon. The superintendent of the company
attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury
at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying
from one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman
of the plaintiff swears that the day before the accident he called the attention of McKenna, the
foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the
stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not
proven that the company inspected the track after the typhoon or had any proper system of
inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on its
part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully
build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the
roadway as soon as the depression in it became visible. It is upon the failure of the defendant to
repair the weakened track, after notice of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among them is the standard
of duty which we shall establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to
put these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice would
constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of
regulations, shall cause an injury which, had malice intervened, would have constituted a
crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest
of the representative of the company accountable for not repairing the tract, and on his prosecution
a suitable fine should have been imposed, payable primarily by him and secondarily by his
employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
 SEC. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity, the mother, is liable for the damages caused by
the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as
is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though never in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might
be prosecuted jointly or separately, but while the penal action was pending the civil was suspended.
According to article 112, the penal action once started, the civil remedy should be sought therewith,
unless it had been waived by the party injured or been expressly reserved by him for civil
proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that could
be enforced by only on private complaint, the penal action thereunder should be extinguished.
These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the enforcement of the civil
right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary
in respect of criminal actions against his employees only while they are process of prosecution, or
in so far as they determinate the existence of the criminal act from which liability arises, and his
obligation under the civil law and its enforcement in the civil courts is not barred thereby unless
by election of the injured person. Inasmuch as no criminal in question, the provisions of the Penal
Code can not affect this action. This construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or
has been abrogated by the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence
not punished by law," as applied to the comprehensive definition of offenses in articles 568 and
590 of the Penal Code. It has been shown that the liability of an employer arising out of his relation
to his employee who is the offender is not to be regarded as derived from negligence punished by
the law, within the meaning of articles 1092 and 1093. More than this, however, it can not be said
to fall within the class of acts unpunished by the law, the consequences of which are regulated by
articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable are
understood to be those and growing out of preexisting duties of the parties to one another. But
were relations already formed give rise to duties, whether springing from contract or quasi contract,
then breaches of those duties are subject to articles 1101, 1103, and 1104, of the same code. A
typical application of the distinction may be found in the consequences of a railway accident due
to defective machinery supplied by the employer. His liability to his employee would arise out of
the contract of employment, that to the passengers out of the contract for passage. while that to
that injured bystander would originate in the negligent act itself. This distinction is thus clearly set
forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be understood in
two difference senses; either as culpa, substantive and independent, which on account of
its origin arises in an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation; or as already existed,
which can not be presumed to exist without the other, and which increases the liability
arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of this
book of the code is devoted to it, it is logical to presume that the reference contained in
article 1093 is limited thereto and that it does not extend to those provisions relating to the
other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p.
29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being the
culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This
terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter
XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27,
1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate.
(March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading French
commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led to
the discovery of a third basis for liability in an article of he French Code making the possessor of
any object answerable for damage done by it while in his charge. Our law having no counterpart
of this article, applicable to every kind of object, we need consider neither the theory growing out
of it nor that of "professional risk" more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual
obligation. This contractual obligation, implied from the relation and perhaps so inherent in its
nature to be invariable by the parties, binds the employer to provide safe appliances for the use of
the employee, thus closely corresponding to English and American Law. On these principles it
was the duty of the defendant to build and to maintain its track in reasonably sound condition, so
as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it
failed in its duty, otherwise the accident could not have occurred; consequently the negligence of
the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that of a fellow-servant of the
injured man. It is not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule,"
we are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in
the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually
abrogated by "the Employers' Liability Acts" and the "Compensation Law." The American States
which applied it appear to be gradually getting rid of it; for instance, the New York State legislature
of 1906 did away with it in respect to railroad companies, and had in hand a scheme for its total
abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858,
Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-
Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference
from the testimony. While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this job less than two
days. A man may easily walk along a railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track on the day of the accident and
that it was then in good condition, and one Danridge, a witness for the defendant, working on the
same job, swore that he never noticed the depression in the track and never saw any bad place in
it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the
foreman who neither promised nor refused to repair it. His lack of caution in continuing at his
work after noticing the slight depression of the rail was not of so gross a nature as to constitute
negligence, barring his recovery under the severe American rule. On this point we accept the
conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the
one rail being lower than then other" and "it does not appear in this case that the plaintiff knew
before the accident occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United
States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this
way, but were expressly directed by the foreman to do so, both the officers of the company and
three of the workmen testify that there was a general prohibition frequently made known to all the
gang against walking by the side of the car, and the foreman swears that he repeated the prohibition
before the starting of this particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger
contributed in some degree to the injury as a proximate, although not as its primary cause. This
conclusion presents sharply the question, What effect is to be given such an act of contributory
negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in
reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the defendant, and some others have
accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his
responsibility for the accident, yet the overwhelming weight of adjudication establishes the
principle in American jurisprudence that any negligence, however slight, on the part of the person
injured which is one of the causes proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles "Comparative Negligence" and Contributory
Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in the
person injured; subject to this qualification, which has grown up in recent years (having
been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory
negligence of the party injured will not defeat the action if it be shown that the defendant
might, by the exercise of reasonable care and prudence, have avoided the consequences of
the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent or
that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was
due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and
killed by the shock following the backing up of the engine. It was held that the management of the
train and engine being in conformity with proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th
of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by
the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other, because
the act of the deceased in driving over level ground with unobstructed view in front of a train
running at speed, with the engine whistle blowing was the determining cause of the accident. It is
plain that the train was doing nothing but what it had a right to do and that the only fault lay with
the injured man. His negligence was not contributory, it was sole, and was of such an efficient
nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held
liable for not furnishing protection to workmen engaged in hanging out flags, when the latter must
have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed to
his injury as one of its causes, though not the principal one, and we are left to seek the theory of
the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness
of the victim did not civilly relieve the person without whose fault the accident could not have
happened, but that the contributory negligence of the injured man had the effect only of reducing
the damages. The same principle was applied in the case of Recullet, November 10, 1888. and that
of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.)
Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English theory
of contributory negligence. Such decisions throw no light upon the doctrines of the civil law.
Elsewhere we find this practice embodied in legislation; for instance, section 2 of article 2398 of
the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured or
in the part of some one else, the indemnification shall be reduced in the first case, and in
 the second case it shall be appropriated in proportion to such fault or negligence as provided
in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is incapable
of ascertainment, he shall share the liability equally with the person principally responsible. The
principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even
in the United States in admirality jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in favor
of the vessel sustaining the greater loss against the other for the excess of her damages over one-
half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article 829,
referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the civil
action of the owner against the person liable for the damage is reserved, as well as the criminal
liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard
against too ready symphaty for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain an
action against the other, is, not the wrong of the one is set off against the wrong of the
other; it that the law can not measure how much of the damage suffered is attributable to
the plaintiff's own fault. If he were allowed to recover, it might be that he would obtain
from the other party compensation for hiss own misconduct. (Heil vs. Glanding, 42 Penn.
St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law has
no scales to determine in such cases whose wrongdoing weighed most in the compound
that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax the
vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through
the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits
of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the
stress and counter stress of novel schemers of legislation, we find the theory of damages laid down
in the judgment the most consistent with the history and the principals of our law in these Islands
and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be between the accident and
the injury, between the event itself, without which there could have been no accident, and those
acts of the victim not entering into it, independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. this produced the event giving occasion
for damages — that is, the shinking of the track and the sliding of the iron rails. To this event, the
act of the plaintiff in walking by the side of the car did not contribute, although it was an element
of the damage which came to himself. Had the crosspiece been out of place wholly or partly
thorough his act of omission of duty, the last would have been one of the determining causes of
the event or accident, for which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he may recover the amount that the
defendant responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred
by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be
entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances,
and ten days hereafter let the case be remanded to the court below for proper action. So ordered.

Fortuitous event
THIRD DIVISION

G.R. No. L-87584 June 16, 1992

GOTESCO INVESTMENT CORPORATION, petitioner,
vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the Decision 1
promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of the respondent Court
of Appeals in CA-G.R. CV No. 09699 which, respectively affirmed in toto the decision of Branch
XXI of the Regional Trial Court of Cebu in Civil Case No. R-22567 entitled "Gloria Chatto, et al.
versus Gotesco Investment Corporation", and denied petitioner's motion to reconsider the same.
The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E. Chatto
the sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the sum of P49,050.00
as actual and consequential damages, P75,000.00 as moral damages and P20,000.00 as attorney's
fees, plus the cost of the suit. These awards, except for the attorney's fees, were to earn interest at
the rate of twelve per cent (12%) per annum beginning from the date the complaint was filed, 16
November 1982, until the amounts were fully paid.
The antecedent facts, as found by the trial court and affirmed by the respondent Court, are
summarized by the latter in the challenged decision as follows:
The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto,
and her 15-year old daughter, plaintiff Lina Delza E. Chatto went to see the movie
"Mother Dear" at Superama I theater, owned by defendant Gotesco Investment
Corporation. They bought balcony tickets but even then were unable to find seats
considering the number of people patronizing the movie. Hardly ten (10) minutes
after entering the theater, the ceiling of its balcony collapsed. The theater was
plunged into darkness and pandemonium ensued. Shocked and hurt, plaintiffs
managed to crawl under the fallen ceiling. As soon as they were able to get out to
the street they walked the nearby FEU Hospital where they were confined and
treated for one (1) day.
The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was
treated in said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto from
June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto G.
Brion, plaintiff Lina Delza Chatto suffered the following injuries:
Physical injuries:
Contusions:
forehead and drental region, scalp left with
hematoma; chest anterior upper bilateral; back right,
scapular region; back, mid-portion, thoraco-lumbar
regions, bilateral
Abrasions:
back lumbar region, horizontal, across midline, from
left to right; hand right, palm, near wrist; hand left,
index finger, dorsum, proximal phalanx.
Conclusion, cerebral.
X-Ray — Skull; Thoraco-lumbar
region — All negative.
CONCLUSIONS
1. Physical injuries rioted on the
subject.
 2. That under normal condition in the
absence of complication, said
physical injuries will require medical
attendance and/or incapacitate the
subject for a period of from two to
four weeks.
On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal
Certificate (Exh. "D") of Dr. Brion are as follows:
xxx xxx xxx
Physical injuries:
Lacerated wounds:
scalp vertex, running across suggittal line, from left
to right, 3.0 cm sutured;
Contusion, forearm right, anterior aspect, upper third.
Abrasions:
Shoulder and upper third, arm right, posterior aspect,
linear; backright, scapular region, two in number,
linear; elbow right, posterior aspect; forearm right,
anterior aspect, middle third.
Concusion (sic), cerebral.
X-Ray — Skull — Negative.
Cervical spines Straightening of cervical spine, probably to
muscular spasm.
CONCLUSIONS:
1. Physical injuries noted on subject.
2. That under normal condition, in the absence of complication, said
physical injuries will require medical attendance and/or incapacitate
the subject for a period of from two to four weeks.
Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois,
USA in July 1982 for further treatment (Exh "E"). She was treated at the Cook
County Hospital in Chicago, Illinois. She stayed in the U.S. for about three (3)
months during which time she had to return to the Cook County Hospital five (5)
or, six (6) times.
Defendant tried to avoid liability by alleging that the collapse of the ceiling of its
theater was done due to force majeure. It maintained that its theater did not suffer
from any structural or construction defect. (Exh. 1, 2, 3, 4, & 5)3
In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial
court said:
It has been established thru the uncontradicted testimony of Mrs. Chatto that during
the chaos and confusion at the theater she lost a pair of earrings worth P2,500 and
 the sum of P1,000.00 in cash contained in her wallet which was lost; and that she
incurred the following expenses: P500.00 as transportation fare from Cebu City to
Manila on the first leg of her trip to the United States; P350.00 for her passport; and
P46,978.00 for her expense relative to her treatment in the United States, including
the cost of a round-trip ticket (P11,798.00) hospital and medical bills and other
attendant expenses. The total is P51,328.00, which is more than the sum of
P49,050.00 claimed in the complaint, hence should be reduced accordingly.
The same testimony has also established that Mrs. Chatto contracted to pay her
counsel the sum of P20,000.00, which this court considers reasonable considering,
among other things, the professional standing of work (sic) involved in the
prosecution of this case. Such award of attorney's fees is proper because the
defendant's omission to provide the plaintiffs proper and adequate safeguard to life
and limb which they deserved as patrons to (sic) its theater had compelled the
plaintiffs to hire the services of a counsel, file this case and prosecute it, thus
incurring expenses to protect their interest.
The plaintiffs are entitled to moral damages, which are the direct and proximate
result of the defendants gross negligence and omission. Such moral damages
include the plaintiffs' physical suffering, mental anguish, fright and serious anxiety.
On the part of Mrs. Chatto, who obviously suffered much more pain, anguish, fright
and anxiety than her daughter Lina Delza, such damages are compounded by the
presence of permanent deformities on her body consisting of a 6-inch scar on the
head and a 2-inch scar on one arm. The court believes that the sum of P75,000.00
for plaintiff Gloria E. Chatto and the sum of P10,000.00 for plaintiff Lina Delza E.
Chatto would be reasonable. 4
Petitioner submitted before the respondent Court the following assignment of errors:
I. THE LOWER COURT ERRED IN ADMITTING PATENTLY —
INADMISSIBLE EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES AND
IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS AND
CERTIFICATIONS OF THE CONDITION OF THE BUILDING,
PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE
CITY ENGINEER'S OFFICE OF MANILA.
II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE
BALCONY COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION
OR ARCHITECTURAL DEFECT," AND NOT DUE TO AN ACT OF GOD OR
FORCE MAJEURE.
III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT
WAS GROSSLY NEGLIGENT IN FAILING "TO CAUSE PROPER AND
ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE
BUILDING." 5
In its decision, respondent Court found the appeal to be without merit. As to the first assigned error,
it ruled that the trial court did not err in admitting the exhibits in question in the light of the ruling
in Abrenica vs. Gonda 6 on waiver of objections arising out of failure to object at the proper time
Thus:
Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the
Administrator of UST Hospital expressing their willingness to guaranty the
payment of the hospital bills of the plaintiffs-appellees was not objected to in trial
court for lack of authentication. It is too late to raise that objection on appeal.
Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and
Cook County Hospital. It may be true that the doctors who prepared them were not
presented as witnesses. Nonetheless, the records will show that counsel for
defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the matter
especially the content of Exhibits "F" to F-13", Consequently, defendant-appellant
is estopped from claiming lack of opportunity to verify their textual truth. Moreover,
the record is full of the testimony of plaintiffs-appellees on the injuries they
sustained from the collapse of the ceiling of defendant-appellant's theater. Their
existence is crystal clear.
Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-
appellee Gloria Chatto from the Philippines to the U.S. (Manila-Chicago-Manila).
Certainly, this is relevant evidence on whether or not she actually travelled (sic) to
the U.S. for further medical treatment. Defendant-appellant's contention that the
best evidence on the issue is her passport is off the mark. The best evidence rule
applies only if the contents of the writing are directly in issue. In any event, her
passport is not the only evidence on the matter.
Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S
in her own handwriting. Defendant-appellant's objection that it is self serving goes
to the weight of the evidence. The truth of Exh. "G" could be and should have been
tested by cross examination. It cannot be denied however that such expenses are
within the personal knowledge of the witness.
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as
part of her treatment in the U.S. Defendant-appellant objects to its admission
because it is self-serving. The objection is without merit in view of the evidence on
record that plaintiff-appellee Gloria Chatto sustained head injuries from the
collapse of the ceiling of defendant-appellant's theater. In fact, counsel for
defendant-appellant cross examined the said witness on the medical finding of
Cook County Hospital that she was suffering from neck muscle spasm. (TSN, April
17, 1984, p. 11) The wearing of a surgical neckwear has proper basis.
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing
the use of her surgical neckwear. Defendant-appellant objects to this exhibit its
hearsay because the photographer was not presented as a witness. The objection is
 incorrect. In order that photographs or pictures may be given in evidence, they must
be shown to be a true and faithful representation of the place or objects to which
they refer. The photographs may be verified either by the photographer who took it
or by any person who is acquainted with the object represented and testify (sic) that
the photograph faithfully represents the object. (Moran, Comments in the Rules of
Court, Vol. V, 1980 ed., p. 80 citing New York Co vs. Moore, 105 Fed. 725) In the
case at bar, Exh. "I" was identified by plaintiff appellee Gloria Chatto. 7
As to the, other assigned errors, the respondent Court ruled:
The lower court did not also err in its finding that the collapse of the ceiling of the
theater's balcony was due to construction defects and not to force majeure. It was
the burden defendant-appellant to prove that its theater did not suffer from any
structural defect when it was built and that it has been well maintained when the
incident occurred. This is its Special and Affirmative Defense and it is incumbent
on defendant-appellant to prove it. Considering the collapse of the ceiling of its
theater's balcony barely four (4) years after its construction, it behooved defendant-
appellant to conduct an exhaustive study of the reason for the tragic incident. On
this score, the effort of defendant-appellant borders criminal nonchalance. Its
witness Jesus Lim Ong testified:
Atty. Barcelona:
Q By the way, you made mention a while ago that your staff of
engineer and architect used to make round inspection of the building
under your construction the of these buildings is Gotesco Cinema 1
and 2, subject matter of this case, and you also made a regular round
up or inspection of the theater. Is that right?
A Yes, sir.
Q And do you personally inspect these buildings under your
construction?
A Yes, whenever I can.
Q In the case of Gotesco Cinema 1 and 2, had you any chance to
inspect this building?
A Yes, sir.
Q Particularly in the months of May and June of 1982?
A Yes, in that (sic) months.
Q Now, you said also that sometime in June 1982 you remember
that one of these theaters.
Atty. Barcelona: continuing
particularly Superama 1 the ceiling had collapsed?
A Yes, sir.
Q Did you conduct an investigation?
A Yes, sir.
 Q What was your finding?
A There was really nothing, I cannot explain. I could not give any
reason why the ceiling collapsed.
Q Could it not be due to any defect of the plant?
Atty. Florido:
Already answered, Your Honor, he could not give any reason.
COURT:
Objection sustained.
Atty. Barcelona:
Q When that incident happened, did the owner Gotesco Investment
Corporation went (sic) to you to call your attention?
A Yes, sir.
Atty. Florido:
Your Honor, we noticed (sic) series of leading questions, but this
time we object.
COURT:
Sustained.
Atty. Barcelona;
Q What did the owner of Gotesco do when the ceiling collapsed,
upon knowing that one of the cinemas you maintained collopsed?
A He asked for a thorough investigation.
Q And as a matter of fact as asked you to investigate?
A Yes, sir.
Q Did you come out with any investigation report.
A There was nothing to report.
Clearly, there was no authoritative investigation conducted by impartial civil and
structural engineers on the cause of the collapse of the theater's ceiling, Jesus Lim
Ong is not an engineer, He is a graduate of architecture from the St. Louie (sic)
University in Baguio City. It does not appear he has passed the government
examination for architects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr.
Ong about the cause of the collapse of the ceiling of their theater cannot be equated,
as an act, of God. To sustain that proposition is to introduce sacrilege in our
jurisprudence. 8
Its motion for reconsideration of the decision having been denied by the respondent Court,
petitioner filed this petition assailing therein the challenged decision on the following grounds:
1. The basis of the award for damages stems from medical reports issued by private
physicians of local hospitals without benefit of cross-examination and more
seriously, xerox copies of medical findings issued by American doctors in the
United States without the production of originals, without the required consular
 authentication for foreign documents, and without the opportunity for cross-
examination.
2. The damage award in favor of respondents is principally, made depend on such
unreliable, hearsay and incompetent evidence for which an award of more than
P150,000.00 in alleged actual, moral and I "consequential" damages are awarded
to the prejudice of the right of petitioner to due process. . . .
3. Unfortunately, petitioners evidence of due diligence in the care and maintenance
of the building was not seriously considered by the Court of Appeals, considering
that frequent inspections and maintenance precautions had to be observed by hired
engineers of petitioner, which enjoys an unsullied reputation in the business of
exhibiting movies in a chain of movie houses in Metro Manila. 9
After the private respondents filed their Comment as required in the Resolution of 17 May 1989,
this Court resolved to give due course to the petition and required the parties to file their respective
Memoranda. Subsequently, private respondents, in a motion, prayed for leave to adopt their
Comment as their Memorandum, which this Court granted on 6 December 1989. Petitioner filed
its Memorandum on 10 January 1990.
The petition presents both factual and legal issues. The first relates to the cause of the collapse of
the ceiling while the latter involves the correctness of the admission of the exhibits in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact
being conclusive, 10 except only where a case is shown as coming under the accepted exception.
11 None of the exceptions which this Court has painstakingly summarized in several cases 12 has
been shown to exist in this petition. Petitioner's claim that the collapse of the ceiling of the theater's
balcony was due to force majeure is not even founded on facts because its own witness, Mr. Jesus
Lim Ong, admitted that "he could not give any reason why the ceiling collapsed." Having
interposed it as a defense, it had the burden to prove that the collapse was indeed caused by force
majeure. It could not have collapsed without a cause. That Mr. Ong could not offer any explanation
does not imply force majeure. As early as eighty-five (85) years ago, this Court had the occasion
to define force majeure. In Pons y Compañia vs. La Compañia Maritima 13 this Court held:
An examination of the Spanish and American authorities concerning the meaning
of force majeure shows that the jurisprudence of these two countries practically
agree upon the meaning of this phrase.
Blackstone, in his Commentaries on English Law, defines it as —
Inevitable accident or casualty; an accident produced by any
physical cause which is irresistible; such as lightning. tempest, perils
of the sea, inundation, or earthquake; the sudden illness or death of
a person. (2 Blackstone's Commentaries, 122; Story in Bailments,
sec. 25.)
 Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza mayor
as follows.
The event which we could neither foresee nor resist; as for example,
the lightning stroke, hail, inundation, hurricane, public enemy,
attack by robbers; Vis major est, says Cayo, ea quae consilio
humano neque provideri neque vitari potest. Accident and
mitigating circumstances.
Bouvier defines the same as —
Any accident due to natural cause, directly exclusively without
human intervention, such as could not have been prevented by any
kind of oversight, pains and care reasonably to have been expected.
(Law Reports, 1 Common Pleas Division, 423; Law Reports, 10
Exchequer, 255.)
Corkburn, chief justice, in a well considered English case (1 Common Pleas
Division, 34, 432), said that were a captain —
Uses all the known means to which prudent and experienced
captains ordinarily have recourse, he does all that can be reasonably
required of him; and if, under such circumtances, he is overpowered
by storm or other natural agency, he is within the rule which gives
immunity from the effects of such vis major.
The term generally applies, broadly speaking, to natural accidents, such as those
caused by lightning, earthquake, tempests, public enemy ,etc.
Petitioner could have easily discovered the cause of the collapse if indeed it were due to force
majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is that
either he did not actually conduct the investigation or that he is, as the respondent Court impliedly
held, incompetent. He is not an engineer, but an architect who had not even passed the
government's examination. Verily, post-incident investigation cannot be considered as material to
the present proceedings. What is significant is the finding of the trial court, affirmed by the
respondent Court, that the collapse was due to construction defects. There was no evidence offered
to overturn this finding. The building was constructed barely four (4) years prior to the accident in
question. It was not shown that any of the causes denominates as force majeure obtained
immediately before or at the time of the collapse of the ceiling. Such defects could have been easily
discovered if only petitioner exercised due diligence and care in keeping and maintaining the
premises. But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the
premises before the date of the accident. His answers to the leading questions on inspection
disclosed neither the exact dates of said. inspection nor the nature and extent of the same. That the
structural designs and plans of the building were duly approved by the City Engineer and the
building permits and certificate of occupancy were issued do not at all prove that there were no
defects in the construction, especially as regards the ceiling, considering that no testimony was
offered to prove that it was ever inspected at all.
It is settled that:
The owner or proprietor of a place of public amusement impliedly warrants that the
premises, appliances and amusement devices are safe for the purpose for which
they are designed, the doctrine being subject to no other exception or qualification
than that he does not contract against unknown defects not discoverable by ordinary
or reasonable means. 14
This implied warranty has given rise to the rule that:
Where a patron of a theater or other place of public amusement is injured, and the
thing that caused the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in the ordinary course of
events would not have happened if proper care had been exercised, its occurrence
raises a presumption or permits of an inference of negligence on the part of the
defendant. 15
That presumption or inference was not overcome by the petitioner.
Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of
the collapse was due to force majeure, petitioner would still be liable because it was guilty of
negligence, which the trial court denominated as gross. As gleaned from Bouvier's definition of
and Cockburn's elucidation on force majeure for one to be exempt from any liability because of it,
he must have exercised care, i.e., he should not have been guilty of negligence.
Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the
respondent Court, but in the sweeping conclusion of petitioner. We agree with the respondent
Court that petitioner offered no reasonable objection to the exhibits. More than this, however, We
note that the exhibits were admitted not as independent evidence, but, primarily, as part of the
testimony of Mrs. Gloria Chatto. Neither were the exhibits made the main basis for the award of
damages. As to the latter, including the award for attorney's fees, the testimonial evidence
presented is sufficient to support the same; moreover, petitioner was not deprived of its right to
test the, truth or falsity of private respondents' testimony through cross-examination or refute their
claim by its own evidence. It could not then be successfully argued by petitioner that the admission
of the exhibits violated the hearsay rule. As this Court sees it, the trial court admitted such merely
as independently relevant statements, which was not objectionable, for:
Where, regardless of the truth or the falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact; in issue, or be circumstantially relevant as to
the existence of such a fact. 16
Furthermore, and with particular reference to the documents issued in the United States of America
(Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not that they are hearsay.
In its written comment and/or opposition to documentary exhibits, petitioner objected to their
admission on the following grounds only:
 . . . for being incompetent evidence considering that the same were not duly
authenticated by the responsible consular and/or embassy officials authorized to
authenticate the said documents. 17
All told, the instant petition is without merit.
WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against
petitioner.
SO ORDERED.

THIRD DIVISION
[G.R. No. 126389. July 10, 1998]
SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE
JESUS VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO,
CONSOLACION DIMAANO and MILAGROS DIMAANO, respondents.
DECISION
PURISIMA, J.:
Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision [1]
promulgated on July 31, 1996, and Resolution [2] dated September 12, 1996 of the Court of
Appeals [3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, Inc., which reduced the moral damages awarded below from P1,000,000.00
to P200,000.00. [4] The Resolution under attack denied petitioners motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns
a four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in
the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong winds, the roof
of petitioners building was partly ripped off and blown away, landing on and destroying portions
of the roofing of private respondents house. After the typhoon had passed, an ocular inspection of
the destroyed buildings was conducted by a team of engineers headed by the city building official,
Engr. Jesus L. Reyna. Pertinent aspects of the latters Report [5] dated October 18, 1989 stated, as
follows:
5. One of the factors that may have led to this calamitous event is the formation of the buildings in
the area and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped
formation of 4-storey building. Thus, with the strong winds having a westerly direction, the general
formation of the buildings becomes a big funnel-like structure, the one situated along College
Road, receiving the heaviest impact of the strong winds. Hence, there are portions of the roofing,
those located on both ends of the building, which remained intact after the storm.
6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural
trusses is the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel
bars embedded on the concrete roof beams which serve as truss anchorage are not bolted nor
nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses, thus,
those trusses are not anchored at all to the roof beams.
It then recommended that to avoid any further loss and damage to lives, limbs and property of
persons living in the vicinity, the fourth floor of subject school building be declared as a structural
hazard.
In their Complaint [6] before the Regional Trial Court of Pasay City, Branch 117, for damages
based on culpa aquiliana, private respondents alleged that the damage to their house rendered the
same uninhabitable, forcing them to stay temporarily in others houses. And so they sought to
recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages,
P300,000.00, as exemplary damages and P100,000.00, for and as attorneys fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood several devastating
typhoons and other calamities in the past, without its roofing or any portion thereof giving way;
that it has not been remiss in its responsibility to see to it that said school building, which houses
school children, faculty members, and employees, is in tip-top condition; and furthermore, typhoon
Saling was an act of God and therefore beyond human control such that petitioner cannot be
answerable for the damages wrought thereby, absent any negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that subject school
building had a defective roofing structure, found that, while typhoon Saling was accompanied by
strong winds, the damage to private respondents house could have been avoided if the construction
of the roof of [petitioners] building was not faulty. The dispositive portion of the lower courts
decision [7] reads thus:
WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff
(sic) and against the defendants, (sic) ordering the latter to pay jointly and severally the former
as follows:
a) P117,116.00, as actual damages, plus litigation expenses;
b) P1,000,000.00 as moral damages;
c) P100,000.00 as attorneys fees;
d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that the defendants (sic) did not act in
a wanton fraudulent, reckless, oppressive or malevolent manner.
In its appeal to the Court of Appeals, petitioner assigned as errors, [8] that:
I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT
OF GOD, IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF
THE SMALL PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY
SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE
ROOF OF DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING
THE ADMISSION THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE
 AS TYPHOON SALING WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE
INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES
AS WELL AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF
SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT
ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING
EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN
THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts
disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence,
petitioners resort to this Court, raising for resolution the issues of:
1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of
speculation or conjecture, without proof or receipts of actual damage, [sic] legally feasible or
justified.
2. Whether or not the award of moral damages to respondent Dimaanos, without the latter having
suffered, actual damage has legal basis.
3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject
matter of the case, during its pendency, has the right to pursue their complaint against petitioner
when the case was already rendered moot and academic by the sale of the property to third party.
4. Whether or not the award of attorneys fees when the case was already moot and academic [sic]
legally justified.
5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an act
of God.
6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without hearing,
has support in law.
The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of
the building of private respondents resulting from the impact of the falling portions of the school
buildings roof ripped off by the strong winds of typhoon Saling, was, within legal contemplation,
due to fortuitous event? If so, petitioner cannot be held liable for the damages suffered by the
private respondents. This conclusion finds support in Article 1174 of the Civil Code, which
provides:
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.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as an
event which takes place by accident and could not have been foreseen. [9] Escriche elaborates it
as an unexpected event or act of God which could neither be foreseen nor resisted. [10] Civilist
Arturo M. Tolentino adds that [f]ortuitous events may be produced by two general causes: (1) by
nature, such as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, such
as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc. [11]
In order that a fortuitous event may exempt a person from liability, it is necessary that he be free
from any previous negligence or misconduct by reason of which the loss may have been
occasioned. [12] An act of God cannot be invoked for the protection of a person who has been
guilty of gross negligence in not trying to forestall its possible adverse consequences. When a
persons negligence concurs with an act of God in producing damage or injury to another, such
person is not exempt from liability by showing that the immediate or proximate cause of the
damage or injury was a fortuitous event. When the effect is found to be partly the result of the
participation of man whether it be from active intervention, or neglect, or failure to act the whole
occurrence is hereby humanized, and removed from the rules applicable to acts of God. [13]
In the case under consideration, the lower court accorded full credence to the finding of the
investigating team that subject school buildings roofing had no sufficient anchorage to hold it in
position especially when battered by strong winds. Based on such finding, the trial court imputed
negligence to petitioner and adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court believes otherwise,
notwithstanding the general rule that factual findings by the trial court, especially when affirmed
by the appellate court, are binding and conclusive upon this Court. [14] After a careful scrutiny of
the records and the pleadings submitted by the parties, we find exception to this rule and hold that
the lower courts misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may
be foreseen but is unavoidable despite any amount of foresight, diligence or care. [15] In order to
be exempt from liability arising from any adverse consequence engendered thereby, there should
have been no human participation amounting to a negligent act. [16] In other words, the person
seeking exoneration from liability must not be guilty of negligence. Negligence, as commonly
understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may
be the failure to observe that degree of care, precaution, and vigilance which the circumstances
justly demand, [17] or the omission to do something which a prudent and reasonable man, guided
by considerations which ordinarily regulate the conduct of human affairs, would do. [18] From
these premises, we proceed to determine whether petitioner was negligent, such that if it were not,
the damage caused to private respondents house could have been avoided?
At the outset, it bears emphasizing that a person claiming damages for the negligence of another
has the burden of proving the existence of fault or negligence causative of his injury or loss. The
facts constitutive of negligence must be affirmatively established by competent evidence, [19] not
merely by presumptions and conclusions without basis in fact. Private respondents, in establishing
the culpability of petitioner, merely relied on the aforementioned report submitted by a team which
made an ocular inspection of petitioners school building after the typhoon. As the term imparts, an
ocular inspection is one by means of actual sight or viewing. [20] What is visual to the eye though,
is not always reflective of the real cause behind. For instance, one who hears a gunshot and then
sees a wounded person, cannot always definitely conclude that a third person shot the victim. It
could have been self-inflicted or caused accidentally by a stray bullet. The relationship of cause
and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was conducted to
determine the real cause of the partial unroofing of petitioners school building. Private respondents
did not even show that the plans, specifications and design of said school building were deficient
and defective. Neither did they prove any substantial deviation from the approved plans and
specifications. Nor did they conclusively establish that the construction of such building was
basically flawed. [21]
On the other hand, petitioner elicited from one of the witnesses of private respondents, city
building official Jesus Reyna, that the original plans and design of petitioners school building were
approved prior to its construction. Engr. Reyna admitted that it was a legal requirement before the
construction of any building to obtain a permit from the city building official (city engineer, prior
to the passage of the Building Act of 1977). In like manner, after construction of the building, a
certification must be secured from the same official attesting to the readiness for occupancy of the
edifice. Having obtained both building permit and certificate of occupancy, these are, at the very
least, prima facie evidence of the regular and proper construction of subject school building. [22]
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon Saling, the
same city official gave the go-signal for such repairs without any deviation from the original design
and subsequently, authorized the use of the entire fourth floor of the same building. These only
prove that subject building suffers from no structural defect, contrary to the report that its U-shaped
form was structurally defective. Having given his unqualified imprimatur, the city building official
is presumed to have properly performed his duties [23] in connection therewith.
In addition, petitioner presented its vice president for finance and administration who testified that
an annual maintenance inspection and repair of subject school building were regularly undertaken.
Petitioner was even willing to present its maintenance supervisor to attest to the extent of such
regular inspection but private respondents agreed to dispense with his testimony and simply
stipulated that it would be corroborative of the vice presidents narration.
Moreover, the city building official, who has been in the city government service since 1974,
admitted in open court that no complaint regarding any defect on the same structure has ever been
lodged before his office prior to the institution of the case at bench. It is a matter of judicial notice
that typhoons are common occurrences in this country. If subject school buildings roofing was not
firmly anchored to its trusses, obviously, it could not have withstood long years and several
typhoons even stronger than Saling.
In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the
appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the
construction and maintenance of its school building in question and that typhoon Saling was the
proximate cause of the damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and moral damages
as well as attorneys fees must fail. [24] Petitioner cannot be made to answer for a purely fortuitous
event. [25] More so because no bad faith or willful act to cause damage was alleged and proven to
warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the pecuniary loss they
actually incurred. [26] It is not enough that the damage be capable of proof but must be actually
proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for
measuring whatever compensatory damages are borne. [27] Private respondents merely submitted
an estimated amount needed for the repair of the roof of their subject building. What is more,
whether the necessary repairs were caused ONLY by petitioners alleged negligence in the
maintenance of its school building, or included the ordinary wear and tear of the house itself, is an
essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial court
is hereby nullified and set aside. Private respondents are ordered to reimburse any amount or return
to petitioner any property which they may have received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The
complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered
DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET ASIDE.
Accordingly, private respondents are ORDERED to return to petitioner any amount or property
received by them by virtue of said writ. Costs against the private respondents.
SO ORDERED.

SECOND DIVISION
G.R. No. L-36481-2 October 23, 1982
AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs-appellees,
vs.
PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.
Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando.
Benedicto, Sumbingco & Associate for appellee Clara Uy Bico.
Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant.

ESCOLIN, J.:
This appeal, originally brought to the Court of Appeals, seeks to set aside the decision of the Court
of First Instance of Negros Occidental in Civil Cases Nos. 7354 and 7428, declaring appellant
Philippine Steam Navigation liable for damages for the loss of the appellees' cargoes as a result of
a fire which gutted the Bureau of Customs' warehouse in Pulupandan, Negros Occidental.
The Court of Appeals certified the case to Us because only pure questions of law are raised therein.
The facts culled from the pleadings and the stipulations submitted by the parties are as follows:
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. 1
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 2 Appellees' claims for the value of said goods were rejected by the appellant.
On the bases of the foregoing facts, the lower court rendered a decision, the decretal portion of
which reads as follows:
WHEREFORE, judgment is rendered as follows:
1. In case No. 7354, the defendant is hereby ordered to pay the plaintiff Amparo C.
Servando the aggregate sum of P1,070.50 with legal interest thereon from the date
of the filing of the complaint until fully paid, and to pay the costs.
2. In case No. 7428, the defendant is hereby ordered to pay to plaintiff Clara Uy
Bico the aggregate sum of P16,625.00 with legal interest thereon from the date of
the filing of the complaint until fully paid, and to pay the costs.
Article 1736 of the Civil Code imposes upon common carriers the duty to observe extraordinary
diligence from the moment the goods are unconditionally placed in their possession "until the same
are delivered, actually or constructively, by the carrier to the consignee or to the person who has a
right to receive them, without prejudice to the provisions of Article 1738. "
The court a quo held that the delivery of the shipment in question to the warehouse of the Bureau
of Customs is not the delivery contemplated by Article 1736; and since the burning of the
warehouse occurred before actual or constructive delivery of the goods to the appellees, the loss is
chargeable against 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, promulgated June 29,
1979, 3 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." (Tolentino, Civil Code, Vol. IV, 1962 Ed., p. 462, citing Mr.
Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p. 49).
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, 4 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 5 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 6,
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.
WHEREFORE, the judgment appealed from is hereby set aside. No costs.
SO ORDERED.

Assumption of risk
EN BANC
G.R. No. L-2075 November 29, 1949
MARGARITA AFIALDA, plaintiff-appellant,
vs.
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.
Nicolas P. Nonato for appellant.
Gellada, Mirasol and Ravena for appellees.
REYES, J.:
This is an action for damages arising from injury caused by an animal. The complaint alleges that
the now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker of their
carabaos at a fixed compensation; that while tending the animals he was, on March 21, 1947, gored
by one of them and later died as a consequence of his injuries; that the mishap was due neither to
his own fault nor to force majeure; and that plaintiff is his elder sister and heir depending upon
him for support.
Before filing their answer, defendants moved for the dismissal of the complaint for lack of a cause
of action, and the motion having been granted by the lower court, plaintiff has taken this appeal.
Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:
 The possessor of an animal, or the one who uses the same, is liable for any damages it may
cause, even if such animal should escape from him or stray away.
This liability shall cease only in case, the damage should arise from force majeure or from
the fault of the person who may have suffered it.
The question presented is whether the owner of the animal is liable when damage is caused to its
caretaker.
The lower court took the view that under the above-quoted provision of the Civil Code, the owner
of an animal is answerable only for damages caused to a stranger, and that for damage caused to
the caretaker of the animal the owner would be liable only if he had been negligent or at fault under
article 1902 of the same code. Claiming that the lower court was in error, counsel for plaintiff
contends that the article 1905 does not distinguish between damage caused to the caretaker and
makes the owner liable whether or not he has been negligent or at fault. For authority counsel cites
the following opinion which Manresa quotes from a decision of the Spanish Supreme Court:
El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara y
evidentemente, se deriva de sus terminos literales, bastando, segun el mismo, que un animal
cause perjuicio para que nasca la responsibilidad del dueno, aun no imputandose a este
ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal
concepto de dueno es suficiente para que arrastre las consecuencias favorables o adversas
de esta clase de propiedad, salvo la exception en el mismo contenida. (12 Manresa,
Commentaries on the Spanish CivilCode, 573.)
This opinion, however, appears to have been rendered in a case where an animal caused injury to
a stranger or third person. It is therefore no authority for a case like the present where the person
injured was the caretaker of the animal. The distinction is important. For the statute names the
possessor or user of the animal as the person liable for "any damages it may cause," and this for
the obvious reason that the possessor or user has the custody and control of the animal and is
therefore the one in a position to prevent it from causing damage.
In the present case, the animal was in custody and under the control of the caretaker, who was paid
for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from
causing injury or damage to anyone, including himself. And being injured by the animal under
those circumstances, was one of the risks of the occupation which he had voluntarily assumed and
for which he must take the consequences.
In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p.
578), the death of an employee who was bitten by a feline which his master had asked him to take
to his establishment was by said tribunal declared to be "a veritable accident of labor" which should
come under the labor laws rather than under article 1905 of the Civil Code. The present action,
however, is not brought under the Workmen's Compensation Act, there being no allegation that,
among other things, defendant's business, whatever that might be, had a gross income of P20,000.
As already stated, defendant's liability is made to rest on article 1905 of the Civil Code. but action
under that article is not tenable for the reasons already stated. On the other hand, if action is to be
based on article 1902 of the Civil Code, it is essential that there be fault or negligence on the part
of the defendants as owners of the animal that caused the damage. But the complaint contains no
allegation on those points.
There being no reversible error in the order appealed from, the same is hereby affirmed, but without
costs in view of the financial situation of the appellant.

SECOND DIVISION
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE
JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN,
respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.

PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First
Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with
the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in
its stead whereby defendant is hereby sentenced to pay plaintiffs actual damages of
P30,229.45; compensatory damages of P50,000.00; exemplary damages of
P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p.
27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the recognition of
their respective versions of the scenario from which the disputed claims originate. The respondent
Court of Appeals (CA) summarized the evidence of the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the
early morning of June 29, 1967 a strong typhoon by the code name "Gening"
buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding
in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had
abated and when the floodwaters were beginning to recede the deceased Isabel Lao
Juan, fondly called Nana Belen, ventured out of the house of her son-in-law,
Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward
towards the direction of the Five Sisters Emporium, of which she was the owner
and proprietress, to look after the merchandise therein that might have been
damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by
Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased,
and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly
owned by the deceased. Aida and Linda walked side by side at a distance of between
5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and
quickly sank into the water. The two girls attempted to help, but fear dissuaded
them from doing so because on the spot where the deceased sank they saw an
electric wire dangling from a post and moving in snake-like fashion in the water.
Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio
Yabes. Ernesto tried to go to the deceased, but at four meters away from her he
turned back shouting that the water was grounded. Aida and Linda prodded Ernesto
to seek help from Antonio Yabes at the YJ Cinema building which was four or five
blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been
electrocuted, he acted immediately. With his wife Jane, together with Ernesto and
one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask
the people of defendant Ilocos Norte Electric Company or INELCO to cut off the
electric current. Then the party waded to the house on Guerrero Street. The
floodwater was receding and the lights inside the house were out indicating that the
electric current had been cut off in Guerrero. Yabes instructed his boys to fish for
the body of the deceased. The body was recovered about two meters from an
electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer
Antonio Juan, Power Plant Engineer of the National Power Corporation at the
Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter
which indicated such abnormalities as grounded or short-circuited lines. Between
6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On
the way, he saw grounded and disconnected lines. Electric lines were hanging from
the posts to the ground. Since he could not see any INELCO lineman, he decided
to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero.
As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire
about 30 meters long strung across the street "and the other end was seeming to
play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office
of the INELCO still closed, and seeing no lineman therein, he returned to the NPC
Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another
inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the
house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which
the body had been taken. Using the resuscitator which was a standard equipment in
his jeep and employing the skill he acquired from an in service training on
resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis
was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound.
Proceeding to the INELCO Office, he met two linemen on the way. He told them
about the grounded lines of the INELCO In the afternoon of the same day, he went
on a third inspection trip preparatory to the restoration of power. The dangling wire
he saw on Guerrero early in the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after
learning that the deceased had been electrocuted. Among the sympathizers was Dr.
Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request
of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M.
on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which
indicated death by electrocution. On the left palm, the doctor found an "electrically
charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn.
About the base of the thumb on the left hand was a burned wound. (Exh. C-2, pp.
102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of'
death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and
employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-
inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of
INELCO Through the testimonies of these witnesses, defendant sought to prove
that on and even before June 29, 1967 the electric service system of the INELCO
in the whole franchise area, including Area No. 9 which covered the residence of
Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might
constitute a hazard to life and property. The service lines, devices and other
INELCO equipment in Area No. 9 had been newly-installed prior to the date in
question. As a public service operator and in line with its business of supplying
electric current to the public, defendant had installed safety devices to prevent and
avoid injuries to persons and damage to property in case of natural calamities such
as floods, typhoons, fire and others. Defendant had 12 linesmen charged with the
duty of making a round-the-clock check-up of the areas respectively assigned to
them.
Defendant asserts that although a strong typhoon struck the province of Ilocos
Norte on June 29, 1967, putting to streets of Laoag City under water, only a few
known places in Laoag were reported to have suffered damaged electric lines,
namely, at the southern approach of the Marcos Bridge which was washed away
and where the INELCO lines and posts collapsed; in the eastern part near the
residence of the late Governor Simeon Mandac; in the far north near the defendant's
power plant at the corner of Segundo and Castro Streets, Laoag City and at the far
northwest side, near the premises of the Ilocos Norte National High School. Fabico
Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he
passed by the intersection of Rizal and Guerrero Streets to switch off the street
 lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity.
What he saw were many people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to
show that the deceased could not have died of electrocution Substantially, the
testimony of the doctor is as follows: Without an autopsy on the cadaver of the
victim, no doctor, not even a medicolegal expert, can speculate as to the real cause
of death. Cyanosis could not have been found in the body of the deceased three
hours after her death, because cyanosis which means lack of oxygen circulating in
the blood and rendering the color of the skin purplish, appears only in a live person.
The presence of the elongated burn in the left palm of the deceased (Exhibits C-1
and C-2) is not sufficient to establish her death by electrocution; since burns caused
by electricity are more or less round in shape and with points of entry and exit. Had
the deceased held the lethal wire for a long time, the laceration in her palm would
have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the
deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55,
Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died
simply either by drowning or by electrocution due to negligence attributable only to herself and
not to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge,
caused the installation of a burglar deterrent by connecting a wire from the main house to the iron
gate and fence of steel matting, thus, charging the latter with electric current whenever the switch
is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on,
hence, causing the deceased's electrocution when she tried to open her gate that early morning of
June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the
complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An
appeal was filed with the CA which issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the respondent
CA:
1. The respondent Court of Appeals committed grave abuse of
discretion and error in considering the purely hearsay alleged
declarations of Ernesto de la Cruz as part of the res gestae.
2. The respondent Court of Appeals committed grave abuse of
discretion and error in holding that the strong typhoon "Gening"
which struck Laoag City and Ilocos Norte on June 29, 1967 and the
flood and deluge it brought in its wake were not fortuitous events
and did not exonerate petitioner-company from liability for the
death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion
and erred in not applying the legal principle of "assumption of risk"
 in the present case to bar private respondents from collecting
damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused
its discretion in completely reversing the findings of fact of the trial
court.
5. The findings of fact of the respondent Court of Appeals are
reversible under the recognized exceptions.
6. The trial court did not err in awarding moral damages and
attorney's fees to defendant corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable
from the death of the late Isabel Lao Juan, the damages granted by
respondent Court of Appeals are improper and exhorbitant.
(Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution;
(2) whether or not petitioner may be held liable for the deceased's death; and (3) whether or not
the respondent CA's substitution of the trial court's factual findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died of
electrocution, a conclusion which can be primarily derived from the photographed burnt wounds
(Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the
fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the
testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours
after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN,
December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972).
Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased
screamed "Ay" and sank into the water, they tried to render some help but were overcome with
fear by the sight of an electric wire dangling from an electric post, moving in the water in a snake-
like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he
nature of the wounds as described by the witnesses who saw them can lead to no other conclusion
than that they were "burns," and there was nothing else in the street where the victim was wading
thru which could cause a burn except the dangling live wire of defendant company" (CA Decision,
p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was
electrocuted, if such was really the case when she tried to open her steel gate, which was
electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent.
Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation,
not backed up with evidence. As required by the Rules, "each party must prove his own affirmative
allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this
theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
 Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the
deceased during that fateful morning of June 29, 1967. This Court has not been
offered any sufficient reason to discredit the testimonies of these two young ladies.
They were one in the affirmation that the deceased, while wading in the waist-deep
flood on Guerrero Street five or six meters ahead of them, suddenly screamed "Ay"
and quickly sank into the water. When they approached the deceased to help, they
were stopped by the sight of an electric wire dangling from a post and moving in
snake-like fashion in the water. Ernesto dela Cruz also tried to approach the
deceased, but he turned back shouting that the water was grounded. These bits of
evidence carry much weight. For the subject of the testimonies was a startling
occurrence, and the declarations may be considered part of the res gestae. (CA
Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1) that
the principal act, the res gestae, be a startling occurrence; (2) that the statements were made before
the declarant had time to contrive or devise; (3) that the statements made must concern the
occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA
1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part
in view of the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely as an
exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness"
because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity"
because such natural and spontaneous utterances are more convincing than the testimony of the
same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant,
Ernesto de la Cruz, was not presented to testify does not make the testimony of Linda Alonzo
Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly,
We considered part of the res gestae a conversation between two accused immediately after
commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo),
Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the waist-
deep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the
knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had
not yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained
submerged. Under such a circumstance, it is undeniable that a state of mind characterized by
nervous excitement had been triggered in Ernesto de la Cruz's being as anybody under the same
contingency could have experienced. As such, We cannot honestly exclude his shouts that the
water was grounded from the res gestae just because he did not actually see the sinking of the
deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We
concede to the submission that the statement must be one of facts rather than opinion, We cannot
agree to the proposition that the one made by him was a mere opinion. On the contrary, his shout
was a translation of an actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the
private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131.
For the application of said Rule as against a party to a case, it is necessary that the evidence alleged
to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil.
953). The presumption does not operate if the evidence in question is equally available to both
parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the
records that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely,
was Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross
examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the
house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p.
30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la
Cruz which, if truly adverse to private respondent, would have helped its case. However, due to
reasons known only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The
respondent CA acted correctly in disposing the argument that petitioner be exonerated from
liability since typhoons and floods are fortuitous events. While it is true that typhoons and floods
are considered Acts of God for which no person may be held responsible, it was not said
eventuality which directly caused the victim's death. It was through the intervention of petitioner's
negligence that death took place. We subscribe to the conclusions of the respondent CA when it
found:
On the issue whether or not the defendant incurred liability for the electrocution
and consequent death of the late Isabel Lao Juan, defendant called to the witness-
stand its electrical engineer, chief lineman, and lineman to show exercise of
extraordinary diligence and to negate the charge of negligence. The witnesses
testified in a general way about their duties and the measures which defendant
usually adopts to prevent hazards to life and limb. From these testimonies, the lower
court found "that the electric lines and other equipment of defendant corporation
were properly maintained by a well-trained team of lineman, technicians and
engineers working around the clock to insure that these equipments were in
excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower
court, however, was based on what the defendant's employees were supposed to do,
not on what they actually did or failed to do on the date in question, and not on the
occasion of the emergency situation brought about by the typhoon.
The lower court made a mistake in assuming that defendant's employees worked
around the clock during the occurrence of the typhoon on the night of June 28 and
 until the early morning of June 29, 1967, Engr. Antonio Juan of the National Power
Corporation affirmed that when he first set out on an inspection trip between 6:00
and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines
of the defendant but he saw no INELCO lineman. The INELCO Office at the Life
theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the
witnesses of defendant contradict the finding of the lower court. Conrado Asis,
defendant's electrical engineer, testified that he conducted a general inspection of
the franchise area of the INELCO only on June 30, 1967, the day following the
typhoon. The reason he gave for the delay was that all their vehicles were
submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office
at 8:00 A.M. on June 30 and after briefing his men on what to do they started out.
(p. 338, lbid) One or two days after the typhoon, the INELCO people heard "rumors
that someone was electrocuted" so he sent one of his men to the place but his man
reported back that there was no damaged wire. (p. 385, Id.) Loreto Abijero, chief
lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M.
on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO
people to inspect their lines. He went with Engr. Juan and their inspection lasted
from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero
lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon
ceased. At that time, he was at the main building of the Divine Word College of
Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night of
June 28 until the early hours of June 29, 1967, extraordinary diligence requires a
supplier of electricity to be in constant vigil to prevent or avoid any probable
incident that might imperil life or limb. The evidence does not show that defendant
did that. On the contrary, evidence discloses that there were no men (linemen or
otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25,
Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm
is done to the general public"... considering that electricity is an agency, subtle and deadly, the
measure of care required of electric companies must be commensurate with or proportionate to the
danger. The duty of exercising this high degree of diligence and care extends to every place where
persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of
petitioner having been shown, it may not now absolve itself from liability by arguing that the
victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with
the negligence of the defendant to produce an injury, the defendant is liable if the injury would not
have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the
case at bar. It is imperative to note the surrounding circumstances which impelled the deceased to
leave the comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo
Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the
deceased, accompanied by the former two, were on their way to the latter's grocery store "to see
to it that the goods were not flooded." As such, shall We punish her for exercising her right to
protect her property from the floods by imputing upon her the unfavorable presumption that she
assumed the risk of personal injury? Definitely not. For it has been held that a person is excused
from the force of the rule, that when he voluntarily assents to a known danger he must abide by
the consequences, if an emergency is found to exist or if the life or property of another is in peril
(65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his endangered property
(Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an
emergency was at hand as the deceased's property, a source of her livelihood, was faced with an
impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place
where she had a right to be without regard to petitioner's consent as she was on her way to protect
her merchandise. Hence, private respondents, as heirs, may not be barred from recovering damages
as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the trial
court's findings of fact, pointing to the testimonies of three of its employees its electrical engineer,
collector-inspector, lineman, and president-manager to the effect that it had exercised the degree
of diligence required of it in keeping its electric lines free from defects that may imperil life and
limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they
appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting
that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the lower court ... was based on what the
defendant's employees were supposed to do, not on what they actually did or failed to do on the
date in question, and not on the occasion of the emergency situation brought about by the typhoon"
(CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated above,
petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the several
wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of the
wounds as described by the witnesses who saw them can lead to no other conclusion than that they
were 'burns', and there was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to
discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when
Engineer Antonio Juan of the National Power Corporation set out in the early morning of June 29,
1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the
ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide,
CA Decision, supra). The foregoing shows that petitioner's duty to exercise extraordinary
diligence under the circumstance was not observed, confirming the negligence of petitioner. To
aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the
impending typhoon, through radio announcements. Even the fire department of the
 city announced the coming of the big flood. (pp. 532-534, TSN, March 13, 1975)
At the INELCO irregularities in the flow of electric current were noted because
"amperes of the switch volts were moving". And yet, despite these danger signals,
INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but
the harm was done. Asked why the delay, Loreto Abijero answered that he "was
not the machine tender of the electric plant to switch off the current." (pp. 467-468,
Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's
findings but tediously considered the factual circumstances at hand pursuant to its power to review
questions of fact raised from the decision of the Regional Trial Court, formerly the Court of First
Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in private
respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and
P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in accordance
with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as
average annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees;
and costs of suit. Except for the award of P12,000 as compensation for the victim's death, We
affirm the respondent CA's award for damages and attorney's fees. Pusuant to recent jurisprudence
(People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said
award of P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was properly made
by the respondent CA, the charge of malice and bad faith on the part of respondents in instituting
his case being a mere product of wishful thinking and speculation. Award of damages and
attorney's fees is unwarranted where the action was filed in good faith; there should be no penalty
on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising
his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight modification that
actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.

Due diligence
EN BANC
G.R. No. L-22533 February 9, 1967
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,
vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.
Placido B. Ramos and Renato L. Ramos for petitioners.
Trinidad & Borromeo for respondents.
BENGZON, J.P., J.:
On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I.1 and Andres
Bonifacio in the Court of First Instance of Manila as a consequence of a collision, on May 10,
1958, involving the car of Placido Ramos and a tractor-truck and trailer of PEPESI-COLA. Said
car was at the time of the collision driven by Augusto Ramos, son and co-plaintiff of Placido.
PEPSI-COLA's tractor-truck was then driven by its driver and co-defendant Andres Bonifacio.
After trial the Court of First Instance rendered judgment on April 15, 1961, finding Bonifacio
negligent and declaring that PEPSI-COLA had not sufficiently proved its having exercised the due
diligence of a good father of a family to prevent the damage. PEPSI-COLA and Bonifacio,
solidarily, were ordered to pay the plaintiffs P2,638.50 actual damages; P2,000.00 moral damages;
P2,000.00 as exemplary damages; and, P1,000.00 attorney's fees, with costs.
Not satisfied with this decision, the defendants appellee to the Court of Appeals.
Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it found defendant
Bonifacio negligent, but modified it by absolving defendant PEPSI-COLA from liability, finding
that, contrary to the plaintiffs' contention, PEPSI-COLA sufficiently proved due diligence in the
selection of its driver Bonifacio.
Plaintiffs thereupon appealed to Us through this petition for review of the Court of Appeals'
decision. And appellants would argue before this Court that defendant PEPSI-COLA's evidence
failed to show that it had exercised due diligence in the selection of its driver in question.
Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor, thus:
The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant
company, was to the effect that defendant driver was first hired as a member of the bottle
crop in the production department; that when he was hired as a driver, 'we had size [sic]
him by looking into his background, asking him to submit clearances, previous experience,
physical examination and later on, he was sent to the pool house to take the usual driver's
examination, consisting of: First, theoretical examination and second, the practical driving
examination, all of which he had undergone, and that the defendant company was a
member of the Safety Council. In view hereof, we are of the sense that defendant company
had exercised the diligence of a good father of a family in the choice or selection of
defendant driver'. In the case of Campo vs. Camarote No. L-9147 (1956), 53 O.G. 2794,
cited in appellee's brief, our Supreme Court had occasion to put it down as a rule that "In
order that the defendant may be considered as having exercised all the diligence of a good
father of a family, he should not have been satisfied with the mere possession of a
professional driver's license; he should have carefully examined the applicant for
employment as to his qualifications, his experiences and record of service." Defendant
Company has taken all these steps.2
Appellants herein seek to assail the foregoing portion of the decision under review by taking issue
with the testimony of Anasco upon which the findings of due diligence aforestated are rested. Thus,
it is now contended that Añasco being PEPSI-COLA's employee, is a biased and interested
witness; and that his testimony is not believable.
It is rather clear, therefore, that appellants would raise herein an issue of fact and credibility,
something as to which this Court has consistently respected the findings of the Court of Appeals,
with some few exceptions, which do not obtain herein.3
Stated differently, Añascos credibility is not for this Court now to re-examine. And said witness
having been found credible by the Court of Appeals, his testimony, as accepted by said Court,
cannot at this stage be assailed. As We said in Co Tao vs. Court of Appeals, L-9194, April 25,
1957, assignments of error involving the credibility of witnesses and which in effect dispute the
findings of fact of the Court of Appeals, cannot be reviewed in these proceedings. For a question
to be one of law it must involve no examination of the probative value of the evidence presented
by the litigants or any of them. 4 And the distinction is well-known: There is a question of law in
a given case when the doubt or difference arises as to what the law is on a certain state of facts;
there is a question of fact when the doubt or difference arises as to the truth or the falsehood of
alleged facts.5
From all this it follows that for the purposes of this appeal, it must be taken as established that, as
testified to by Añasco, PEPSI-COLA did in fact carefully examine the driver-applicant Bonifacio
as to his qualifications, experiences and record of service, taking all steps mentioned by the Court
of Appeals in its decision already quoted.1äwphï1.ñët
Such being the case, there can be no doubt that PEPSI-COLA exercised the required due diligence
in the selection of its driver. As ruled by this Court in Campo vs. Camarote 53 O.G. 2794, 2797:
"In order that the defendant may be considered as having exercised all diligence of a good father
of a family, he should not be satisfied with the mere possession of a professional driver's license;
he should have carefully examined the applicant for employment as to his qualifications, his
experience and record of service."
It should perhaps be stated that in the instant case no question is raised as to due diligence in the
supervision by PEPSI-COLA of its driver. Article 2180 of the Civil Code provides inter alia:
... The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
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.
And construing a similar provision of the old Civil Code, this Court said in Bahia vs.
Litonjua, 30 Phil. 624, 627:
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the master or employer either in the selection of the servant
or employee, or in supervision over him after the selection, or both; and (2) that the
presumption is juris tantum and not juris et de jure, and consequently may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in
 selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability.
As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is only due
diligence in the selection of its driver. And, parenthetically, it is not surprising that appellants thus
confine their arguments to this aspect of due diligence, since the record — as even appellants' brief
(pp. 13-17) reflects in quoting in part the testimony of PEPSI-COLA's witness — would show
sufficient evidence to establish due diligence in the supervision by PEPSI-COLA of its drivers,
including Bonifacio.
Appellants' other assignment of errors are likewise outside the purview of this Court's reviewing
power. Thus, the question of whether PEPSI- COLA violated the Revised Motor Vehicle Law and
rules and regulations related thereto, not having been raised and argued in the Court of Appeals,
cannot be ventilated herein for the first time. 6 And the matter of whether or not PEPSI-COLA did
acts to ratify the negligent act of its driver is a factual issue not proper herein.
Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs against appellants.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
May 16, 1967
BENGZON, J.P., J.:
Petitioners seek a reconsideration1 of Our decision2 in the instant case affirming in toto the
challenged decision of the Court of Appeals absolving respondent PEPSI-COLA from liability. In
Our decision, We refrained from passing on the merits of the question whether PEPSI-COLA, in
operating the tractor-truck and trailer, violated the Rev. Motor Vehicle Law3 and the rules and
regulations related thereto, for the procedural reason that it did not appear to have been raised
before the Court of Appeals.
It now appears, however, that said question was raised in a motion to reconsider filed with the
Court of Appeals which resolved the same against petitioners. Due consideration of the matter on
its merits, convinces Us that the decision of the Court of Appeals should still be affirmed in toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a), Sec. 27 of M.V.O.
Administrative Order No. 1, dated Sept. 1, 1951, in that at the time of the collision, the trailer-
truck, which had a total weight of 30,000 kgms., was (a) being driven at a speed of about 30 k.p.h.
or beyond the 15 k.p.h. limit set and (b) was not equipped with a rear-vision mirror nor provided
with a helper for the driver.
The cited provisions read:
SECTION 27. Registration, operation, and inspection of truck-trailer combinations, semi-
trailers, and tractors.
(a) No trailer or semi-trailer having a gross weight of more than 2,000 kilograms and is not
equipped with effective brakes on at least two opposite wheels of the rear axle and are so
controlled that the brakes will act in unison with or preceding the effective action of the
 brakes of the tractor-truck shall be registered for operation on public highways of the
Philippines; provided, that the trialers without brakes may be registered from year to year
for operation under the following conditions:
1. No such trailer shall be operated at any time at a speed in excess of 15 kilometers per
hour in conjunction with a tractor-truck, the actual gross weight of which is less than twice
the weight of the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision mirror to enable the driver to
see vehicles approaching mirror the rear or shall carry a helper who shall be so stationed
on the truck or trailer that he will constantly have a view of the rear. He shall be provided
with means of effectively signalling to the driver to give way to overtaking vehicles.
4(e) No truck and trailer combination shall be operated at a speed greater than 30 kilometers
per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to trailers or semi-
trailers having a gross weight of more than 2,000 kgms., AND which are "not equipped
with effective brakes on at least two opposite wheels, of the rear axle and are so controlled
that the brakes will act in unison with or preceding the effective action of the brakes of the
tractor-truck..." This is the condition set in the proviso in par. (a), supra, wherein "trailers
without [such] brakes may be registered from year to year for operation ..." i.e., they should
not "be operated at any time at a speed in excess of 15 kilometers per hour in conjunction
with a tractor-truck ...". But there was no finding by the Court of Appeals that the truck-
trailer here did not have such brakes. In the absence of such fact, it is subpar. 4(e), supra,
that will apply. And petitioners admit that the truck-trailer was being driven at about 30
k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper on the night of the collision since
he was found to be driving alone. However, there is no finding that the tractor-truck did not have
a rear-vision mirror. To be sure, the records disclose that Pat. Rodolfo Pahate, the traffic policeman
who went to the collision scene, testified that he saw the tractor-truck there but he does not
remember if it had any rear vision mirror.4 This cannot prove lack of rear-vision mirror. And the
cited provision — subpar. 4(d) — is complied if either of the two alternatives, i.e., having a rear-
vision mirror or a helper, is present. Stated otherwise, said provision is violated only where there
is a positive finding that the tractor-truck did not have both rear-vision mirror and a helper for the
driver.
Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the Rev. Motor
Vehicle Law, providing that:
No motor vehicle operating as a single unit shall exceed the following dimensions:
Overall width ................ 2.5 meters.
xxx xxx xxx
since there was an express finding that the truck-trailer was 3 meters wide. However, Sec.
9 (d) of the same law, as amended, providing that —
 SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles Office with the approval
of the Secretary of Public Works and Communications shall establish regulations and a
tariff of additional fees under which special permits may be issued in the discretion of the
Chief of the Motor Vehicles Office or his deputies, for each of the following special cases,
and without such special permit, no such motor vehicles shall be operated on the public
highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit of permissible dimensions
specified in subsections (b) and (c) of section eight-A hereof. (Emphasis supplied)
xxx xxx xxx
expressly allows the registration, or use of motor vehicles exceeding the limits of
permissible dimensions specified in subsec. (b) of Sec. 8-A. So, to conclude that there was
a violation of law — which undisputably constitutes negligence, at the very least — it is
not enough that the width of the tractor-truck exceed the limit in Sec. 8-A; in addition, it
must also appear that there was no special permit granted under Sec. 9. Unfortunately for
petitioners, that vital factual link is missing. There was no proof much less any finding to
that effect. And it was incumbent upon petitioners-appellants to have proved lack of such
permit since the tractor-truck and the trailer were registered.5 Compliance with law and
regularity in the performance of official duty — in this case, the issuance of proper
registration papers — are presumed6 and prevail over mere surmises. Having charged a
violation of law, the onus of substantiating the same fell upon petitioners-appellants. Hence,
the conclusion that there was a violation of the law lacks factual basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We are urged to apply the
Anglo-American doctrine of respondent superior. We cannot however, abandon the Bahia ruling
without going against the explicit mandate of the law. A motor vehicle owner is not an absolute
insurer against all damages caused by its driver. Article 2180 of our Civil Code is very explicit
that the owner's responsibility shall cease once it proves that it has observed the diligence of a
good father of a family to prevent damage. The Bahia case merely clarified what that diligence
consists of, namely, diligence in the selection and supervision of the driver-employee.
Neither could We apply the respondent superior principle. Under Article 2180 of the Civil Code,
the basis of an employer's liability is his own negligence, not that of his employees. The former is
made responsible for failing to properly and diligently select and supervise his erring employees.
We do not — and have never — followed the respondent superior rule.8 So, the American rulings
cited by petitioners, based as they are on said doctrine, are not authoritative here.
In view of the foregoing, the motion for reconsideration is hereby denied.

SECOND DIVISION
G.R. No. 104408 June 21, 1993
METRO MANILA TRANSIT CORPORATION, petitioner,
vs.
THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.
Office of the Government Corporate Counsel for petitioner.
Renato P. Decena and Restituto Abjero for private respondent.

REGALADO, J.:
This appeal calls for a review of the legal validity and sufficiency of petitioner's invocation of due
diligence in the selection and supervision of employees as its defense against liability resulting
from a vehicular collision. With the facility by which such a defense can be contrived and our
country having reputedly the highest traffic accident rate in its geographical region, it is indeed
high time for us to once again address this matter which poses not only a litigation issue for the
courts but affects the very safety of our streets.
The facts of the case at bar are recounted for us by respondent court, thus —
At about six o'clock in the morning of August 28, 1979, plaintiff-appellant Nenita
Custodio boarded as a paying passenger a public utility jeepney with plate No. D7
305 PUJ Pilipinas 1979, then driven by defendant Agudo Calebag and owned by
his co-defendant Victorino Lamayo, bound for her work at Dynetics Incorporated
located in Bicutan, Taguig, Metro Manila, where she then worked as a machine
operator earning P16.25 a day. While the passenger jeepney was travelling at (a)
fast clip along DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving
vehicle, a Metro Manila Transit Corp. (MMTC, for short) bus bearing plate no. 3Z
307 PUB (Philippines) "79 driven by defendant Godofredo C. Leonardo was
negotiating Honeydew Road, Bicutan, Taguig, Metro Manila bound for its terminal
at Bicutan. As both vehicles approached the intersection of DBP Avenue and
Honeydew Road they failed to slow down and slacken their speed; neither did they
blow their horns to warn approaching vehicles. As a consequence, a collision
between them occurred, the passenger jeepney ramming the left side portion of the
MMTC bus. The collision impact caused plaintiff-appellant Nenita Custodio to hit
the front windshield of the passenger jeepney and (she) was thrown out therefrom,
falling onto the pavement unconscious with serious physical injuries. She was
brought to the Medical City Hospital where she regained consciousness only after
one (1) week. Thereat, she was confined for twenty-four (24) days, and as a
consequence, she was unable to work for three and one half months (31/2).1
A complaint for damages2 was filed by herein private respondent, who being then a minor was
assisted by her parents, against all of therein named defendants following their refusal to pay the
expenses incurred by the former as a result of the collision.
Said defendants denied all the material allegations in the complaint and pointed an accusing finger
at each other as being the party at fault. Further, herein petitioner Metro Manila Transit
Corporation (MMTC), a government-owned corporation and one of the defendants in the court a
quo, along with its driver, Godofredo Leonardo, contrarily averred in its answer with cross-claim
and counterclaim3 that the MMTC bus was driven in a prudent and careful manner by driver
Leonardo and that it was the passenger jeepney which was driven recklessly considering that it hit
the left middle portion of the MMTC bus, and that it was defendant Lamayo, the owner of the
jeepney and employer of driver Calebag, who failed to exercise due diligence in the selection and
supervision of employees and should thus be held solidarily liable for damages caused to the
MMTC bus through the fault and negligence of its employees.
Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim and
counterclaim4 that the damages suffered by therein plaintiff should be borne by defendants MMTC
and its driver, Godofredo Leonardo, because the latter's negligence was the sole and proximate
cause of the accident and that MMTC failed to exercise due diligence in the selection and
supervision of its employees.
By order of the trial court, defendant Calebag was declared in default for failure to file an answer.5
Thereafter, as no amicable settlement was reached during the pre-trial conference,6 trial on the
merits ensued with the opposing parties presenting their respective witnesses and documentary
evidence.
Herein private respondent Nenita Custodia, along with her parents, were presented as witnesses
for the prosecution. In addition, Dr. Edgardo del Mundo, the attending physician, testified on the
cause, nature and extent of the injuries she sustained as a result of the vehicular mishap.7 On the
other hand, defendant MMTC presented as witnesses Godofredo Leonardo, Christian Bautista and
Milagros Garbo. Defendant Lamayo, however, failed to present any witness.
Milagros Garbo testified that, as a training officer of MMTC, she was in charge of the selection of
the company's bus drivers, conducting for this purpose a series of training programs and
examinations. According to her, new applicants for job openings at MMTC are preliminarily
required to submit certain documents such as National Bureau of Investigation (NBI) clearance,
birth or residence certificate, ID pictures, certificate or diploma of highest educational attainment,
professional driver's license, and work experience certification. Re-entry applicants, aside from
the foregoing requirements, are additionally supposed to submit company clearance for shortages
and damages and revenue performance for the preceding year. Upon satisfactory compliance with
said requisites, applicants are recommended for and subjected to a Preliminary interview, followed
by a record check to find out whether they are included in the list of undesirable employees given
by other companies.
Thereafter, she continued, if an applicant is found to be acceptable, a final interview by the Chief
Supervisor is scheduled and followed by a training program which consists of seminars and actual
driving and Psycho-physical tests and X-ray examinations. The seminars, which last for a total of
eighteen (18) days, include familiarization with assigned routes, existing traffic rules and
regulations, Constabulary Highway Patrol Group (CHPG) seminar on defensive driving,
preventive maintenance, proper vehicle handling, interpersonal relationship ,and administrative
rules on discipline and on-the-job training. Upon completion of all the seminars and tests, a final
clearance is issued, an employment contract is executed and the driver is ready to report for duty.8
MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to monitor the daily
operation of buses in the field, to countercheck the dispatcher on duty prior to the operation of the
buses in the morning and to see to it that the bus crew follow written guidelines of the company,
which include seeing to it that its employees are in proper uniform, briefed in traffic rules and
regulations before the start of duty, fit to drive and, in general, follow other rules and regulations
of the Bureau of Land Transportation as well as of the company.9
The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers of the colliding
vehicles concurrently negligent for non-observance of appropriate traffic rules and regulations and
for failure to take the usual precautions when approaching an intersection. As joint tortfeasors,
both drivers, as well as defendant Lamayo, were held solidarily liable for damages sustained by
plaintiff Custodio. Defendant MMTC, on the bases of the evidence presented was, however,
absolved from liability for the accident on the ground that it was not only careful and diligent in
choosing and screening applicants for job openings but was also strict and diligent in supervising
its employees by seeing to it that its employees were in proper uniforms, briefed in traffic rules
and regulations before the start of duty, and that it checked its employees to determine whether or
not they were positive for alcohol and followed other rules and regulations and guidelines of the
Bureau of Land Transportation and of the company.
The trial court accordingly ruled:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered
dismissing the complaint against the Metro Manila Transit Corporation and
ordering defendants Agudo P. Calebag, Victorino Lamayo and Godofredo C.
Leonardo to pay plaintiffs, jointly and severally, the following:
a) the sum of P10,000.00 by way of medical expenses;
b) the sum of P5,000.00 by way of expenses of litigation;
c) the sum of P15,000.00 by way of moral damages;
d) the sum of P2,672.00 by way of loss of earnings;
e) the sum of P5,000.00 by way of exemplary damages;
f) the sum of P6,000.00 by way of attorney's fees; and
g) costs of suit.
SO ORDERED. 11
Plaintiff's motion to have that portion of the trial court's decision absolving MMTC from liability
reconsidered 12 having been denied for lack of merit, 13 an appeal was filed by her with respondent
appellate court. After consideration of the appropriate pleadings on appeal and finding the appeal
meritorious, the Court of Appeals modified the trial court's decision by holding MMTC solidarily
liable with the other defendants for the damages awarded by the trial court because of their
concurrent negligence, concluding that while there is no hard and fast rule as to what constitutes
sufficient evidence to prove that an employer has exercised the due diligence required of it in the
selection and supervision of its employees, based on the quantum of evidence adduced the said
appellate court was not disposed to say that MMTC had exercised the diligence required of a good
father of a family in the selection and supervision of its driver, Godofredo Leonardo. 14
The Court of Appeals was resolute in its conclusion and denied the motions for reconsideration of
appellee Custodio and appellant MMTC in a resolution dated February 17, 1982, 15 thus
prompting MMTC to file the instant petition invoking the review powers of this Court over the
decision of the Court of Appeals, raising as issues for resolution whether or not (1) the
documentary evidence to support the positive testimonies of witnesses Garbo and Bautista are still
necessary; (2) the testimonies of witnesses Garbo and Bautista may still be disturbed on appeal;
and (3) the evidence presented during the trial with respect to the proof of due diligence of
petitioner MMTC in the selection and supervision of its employees, particularly driver Leonardo,
is sufficient.
Prefatorily, private respondent questions the timeliness of the filing of the petition at bar in view
of the procedural stricture that the timely perfection of an appeal is both a mandatory and
jurisdictional requirement. This is a legitimate concern on the part of private respondent and
presents an opportune occasion to once again clarify this point as there appears to be some
confusion in the application of the rules and interpretative rulings regarding the computation of
reglementary periods at this stage of the proceedings.
The records of this case reveal that the decision of respondent Court of Appeals, dated October 31,
1991, was received by MMTC on November 18, 1991 16 and it seasonably filed a motion for the
reconsideration thereof on November 28, 1991. 17 Said motion for reconsideration was denied by
respondent court in its resolution dated February 17, 1992, which in turn was received by MMTC
on March 9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court, fifteen
(15) days therefrom or up to March 24, 1992 within which to file its petition, for review on
certiorari. Anticipating, however, that it may not be able to file said petition before the lapse of
the reglementary period therefor, MMTC filed a motion on March 19, 1992 for an extension of
thirty (30) days to file the present petition, with proof of service of copies thereof to respondent
court and the adverse parties. The Court granted said motion, with the extended period to be
counted from the expiration of the reglementary period. 19 Consequently, private respondent had
thirty (30) days from March 24, 1992 within which to file its petition, or up to April 23, 1992, and
the eventual filing of said petition on April 14, 1992 was well within the period granted by the
Court.
We digress to reiterate, in view of erroneous submissions that we continue to receive, that in the
case of a petition for review on certiorari from a decision rendered by the Court of Appeals,
Section 1, Rule 45 of the Rules of Court, which has long since been clarified in Lacsamana vs.
The Hon. Second Special Cases Division of the Intermediate Appellate Court, et al., 20 allows the
same to be filed "within fifteen (15) days from notice of judgment or of the denial of the motion
for reconsideration filed in due time, and paying at the same time to the corresponding docket fee."
In other words, in the event a motion for reconsideration is filed and denied, the period of fifteen
(15) days begins to run all over again from notice of the denial resolution. Otherwise put, if a
motion for reconsideration is filed, the reglementary period within which to appeal the decision of
the Court of Appeals to the Supreme Court is reckoned from the date the party who intends to
appeal received the order denying the motion for reconsideration. 21 Furthermore, a motion for
extension of time to file a petition for review may be filed with this Court within said reglementary
period, paying at the same time the corresponding docket fee.
1. The first two issues raised by petitioner shall be correlatively discussed in view of their
interrelation.
In its present petition, MMTC insists that the oral testimonies of its employees were presented as
witnesses in its behalf sufficiently prove, even without the presentation documentary evidence,
that driver Leonardo had complied with all the hiring and clearance requirements and had
undergone all trainings, tests and examinations preparatory to actual employment, and that said
positive testimonies spell out the rigid procedure for screening of job applicants and the
supervision of its employees in the field. It underscored the fact that it had indeed complied with
the measure of diligence in the selection and supervision of its employees as enunciated in Campo,
et al. vs. Camarote, et al. 22 requiring an employer, in the exercise of the diligence of a good father
of a family, to carefully examine the applicant for employment as to his qualifications, experience
and record service, and not merely be satisfied with the possession of a professional driver's license.
It goes on to say since the testimonies of these witnesses were allegedly neither discredited nor
impeached by the adverse party, they should be believed and not arbitrarily disregarded or rejected
nor disturbed on appeal. It assiduously argues that inasmuch as there is no law requiring that facts
alleged by petitioner be established by documentary evidence, the probative force and weight of
their testimonies should not be discredited, with the further note that the lower court having passed
upon the relevancy of the oral testimonies and considered the same as unrebutted, its consideration
should no longer be disturbed on appeal. 23
Private respondent, on the other hand, retorts that the factual findings of respondent court are
conclusive upon the High Court which cannot be burdened with the task of analyzing and weighing
the evidence all over again. 24
At this juncture, it suffices to note that factual findings of the trial court may be reversed by the
Court of Appeals, which is vested by law with the power to review both legal and factual issues,
if on the evidence of record, it appears that the trial court may have been mistaken 25 particularly
in the appreciation of evidence, which is within the domain of the Court of Appeals. 26 The general
rule laid down in a plethora of cases is that such findings of fact by the Court of Appeals are
conclusive upon and beyond the power of review of the Supreme Court. 27 However, it is now
well-settled that while the findings of fact of the Court of Appeals are entitled to great respect, and
even finality at times, that rule is not inflexible and is subject to well established exceptions, to
wit: (1) when the conclusion is a finding grounded entirely on speculation, surmises and
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) where
there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts;
(5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same are contrary to the admissions of both appellant
and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court;
(8) when the findings of fact are conclusions without citation of specific evidence on which they
are based; (9) when the facts set forth in the petition, as well as in the petitioner's main and reply
briefs are not disputed by the respondents and (10) when the findings of fact of the Court of
Appeals are premised on the supposed absence of evidence and are contradicted by the evidence
on record. 28
When as in this case, the findings of the Court of Appeals and the trial court are contrary to each
other, this court may scrutinize the evidence on record, 29 in order to arrive at a correct finding
based thereon. 30
A perusal of the same shows that since there is no dispute as to the finding of concurrent negligence
on the part of the defendant Calebag, the driver of the passenger jeepney, and co-defendant
Leonardo, the bus driver of petitioner MMTC, both of whom were solidarily held liable with
defendant Lamayo, the owner of the jeepney, we are spared the necessity of determining the
sufficiency of evidence establishing the fact of negligence. 31 The contrariety is in the findings of
the two lower courts, and which is the subject of this present controversy, with regard to the
liability of MMTC as employer of one the erring drivers.
The trial court, in absolving MMTC from liability ruled that —
On the question as to whether defendant MMTC was successful in proving its
defense that indeed it had exercised the due diligence of a good father of a family
in the selection and supervision of defendant Leonardo, this Court finds that based
on the evidence presented during the trial, defendant MMTC was able to prove that
it was not only careful and diligent in choosing and screening applicants for job
openings but also strict (and) diligent in supervising its employees by seeing to it
that its employees were in proper uniforms, briefed in traffic rules and regulations
before the start of duty, checked employees to determine whether they were positive
for alcohol and followed other rules and regulations and guidelines of the Bureau
of Land Transportation as well as its company. Having successfully proven such
defense, defendant MMTC therefore, cannot be held liable for the accident.
Having reached this conclusion, the Court now, holds that defendant MMTC be
totally absolved from liability and that the complaint against it be dismissed. . . . 32
whereas respondent court was of the opinion that —
It is surprising though that witness Milagros Garbo did not testify nor present any
evidence that defendant-appellee's driver, defendant Godofredo Leonardo has
complied with or has undergone all clearances and trainings she referred to. The
clearances, result of seminars and tests which Godofredo Leonardo submitted and
complied with, if any, were not presented in court despite the fact that they are
obviously in the possession and control of defendant-appellee. Instead, it resorted
to generalities. The Court has ruled that due diligence in (the) selection and
supervision of employee(s) are not proved by mere testimonies to the effect that its
applicant has complied with all the company requirements before one is admitted
as an employee but without proof thereof. . . .
 On the part of Christian Bautista, the transport supervisor of defendant-appellee, he
testified that it is his duty to monitor the operation of buses in the field; to
countercheck the dispatchers' duty prior to the operation of the buses in the
morning; to see to it that bus crew follows written guidelines of the company (t.s.n.,
April 29, 1988, pp. 4-5), but when asked to present in court the alleged written
guidelines of the company he merely stated that he brought with him a "wrong
document" and defendant-appellee's counsel asked for reservation to present such
written guidelines in the next hearing but the same was (sic) never presented in
court. 33
A thorough and scrupulous review of the records of this case reveals that the conclusion of
respondent Court of Appeals is more firmly grounded on jurisprudence and amply supported by
the evidence of record than that of the court below.
It is procedurally required for each party in a case to prove his own affirmative assertion by the
degree of evidence required by law. 34 In civil cases, the degree of evidence required of a party in
order to support his claim is preponderance of evidence, or that evidence adduced by one party
which is more conclusive and credible than that of the other party. It is, therefore, incumbent on
the plaintiff who is claiming a right to prove his case. Corollarily, defendant must likewise prove
own allegation to buttress its claim that it is not liable. 35
In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the
burden of presenting at the trial such amount of evidence required by law to obtain a favorable
judgment. 36 It is entirely within each of the parties discretion, consonant with the theory of the
case it or he seeks to advance and subject to such procedural strategy followed thereby, to present
all available evidence at its or his disposal in the manner which may be deemed necessary and
beneficial to prove its or his position, provided only that the same shall measure up to the quantum
of evidence required by law. In making proof in its or his case, it is paramount that the best and
most complete evidence be formally entered. 37
Coming now to the case at bar, while there is no rule which requires that testimonial evidence, to
hold sway, must be corroborated by documentary evidence, or even subject evidence for that
matter, inasmuch as the witnesses' testimonies dwelt on mere generalities, we cannot consider the
same as sufficiently persuasive proof that there was observance of due diligence in the selection
and supervision of employees. 38 Petitioner's attempt to prove its diligentissimi patris familias in
the selection and supervision of employees through oral evidence must fail as it was unable to
buttress the same with any other evidence, object or documentary, which might obviate the
apparent biased nature of the testimony. 39
Our view that the evidence for petitioner MMTC falls short of the required evidentiary quantum
as would convincingly and undoubtedly prove its observance of the diligence of a good father of
a family has its precursor in the underlying rationale pronounced in the earlier case of Central
Taxicab Corp. vs. Ex-Meralco Employees Transportation Co., et al., 40 set amidst an almost
identical factual setting, where we held that:
 . . . . This witness spoke of an "affidavit of experience" which a driver-applicant
must accomplish before he is employed by the company, a written "time schedule"
for each bus, and a record of the inspections and thorough checks pertaining to each
bus before it leaves the car barn; yet no attempt was ever made to present in
evidence any of these documents, despite the fact that they were obviously in the
possession and control of the defendant company.
xxx xxx xxx
Albert also testified that he kept records of the preliminary and final tests given him
as well as a record of the qualifications and experience of each of the drivers of the
company. It is rather strange, therefore, that he failed to produce in court the all
important record of Roberto, the driver involved in this case.
The failure of the defendant company to produce in court any "record" or other
documentary proof tending to establish that it had exercised all the diligence of a
good father of a family in the selection and supervision of its drivers and buses,
notwithstanding the calls therefor by both the trial court and the opposing counsel,
argues strongly against its pretensions.
We are fully aware that there is no hard-and-fast rule on the quantum of evidence
needed to prove due observance of all the diligence of a good father of a family as
would constitute a valid defense to the legal presumption of negligence on the part
of an employer or master whose employee has by his negligence, caused damage
to another. . . . (R)educing the testimony of Albert to its proper proportions, we do
not have enough trustworthy evidence left to go by. We are of the considered
opinion, therefore, that the believable evidence on the degree of care and diligence
that has been exercised in the selection and supervision of Roberto Leon y Salazar,
is not legally sufficient to overcome the presumption of negligence against the
defendant company.
Whether or not the diligence of a good father of a family has been observed by petitioner is a
matter of proof which under the circumstances in the case at bar has not been clearly established.
It is not felt by the Court that there is enough evidence on record as would overturn the presumption
of negligence, and for failure to submit all evidence within its control, assuming the putative
existence thereof, petitioner MMTC must suffer the consequences of its own inaction and
indifference.
2. In any event, we do not find the evidence presented by petitioner sufficiently convincing to
prove the diligence of a good father of a family, which for an employer doctrinally translates into
its observance of due diligence in the selection and supervision of its employees but which mandate,
to use an oft-quoted phrase, is more often honored in the breach than in the observance.
Petitioner attempted to essay in detail the company's procedure for screening job applicants and
supervising its employees in the field, through the testimonies of Milagros Garbo, as its training
officer, and Christian Bautista, as its transport supervisor, both of whom naturally and expectedly
testified for MMTC. It then concluded with its sweeping pontifications that "thus, there is no doubt
that considering the nature of the business of petitioner, it would not let any applicant-drivers to
be (sic) admitted without undergoing the rigid selection and training process with the end (in) view
of protecting the public in general and its passengers in particular; . . . thus, there is no doubt that
applicant had fully complied with the said requirements otherwise Garbo should not have allowed
him to undertake the next set of requirements . . . and the training conducted consisting of seminars
and actual driving tests were satisfactory otherwise he should have not been allowed to drive the
subject vehicle. 41
These statements strike us as both presumptuous and in the nature of petitio principii, couched in
generalities and shorn of any supporting evidence to boost their verity. As earlier observed,
respondent court could not but express surprise, and thereby its incredulity, that witness Garbo
neither testified nor presented any evidence that driver Leonardo had complied with or had
undergone all the clearances and trainings she took pains to recite and enumerate. The supposed
clearances, results of seminars and tests which Leonardo allegedly submitted and complied with
were never presented in court despite the fact that, if true, then they were obviously in the
possession and control of petitioner. 42
The case at bar is clearly within the coverage of Article 2176 and 2177, in relation to Article 2180,
of the Civil Code provisions on quasi-delicts as all the elements thereof are present, to wit: (1)
damages suffered by the plaintiff, (2) fault or negligence of the defendant or some other person for
whose act he must respond, and (3) the connection of cause and effect between fault or negligence
of the defendant and the damages incurred by plaintiff. 43 It is to be noted that petitioner was
originally sued as employer of driver Leonardo under Article 2180, the pertinent parts of which
provides that:
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 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 basis of the employer's vicarious liability has been explained under this ratiocination:
The responsibility imposed by this article arises by virtue of a presumption juris
tantum of negligence on the part of the persons made responsible under the article,
derived from their failure to exercise due care and vigilance over the acts of
subordinates to prevent them from causing damage. Negligence is imputed to them
by law, unless they prove the contrary. Thus, the last paragraph of the article says
that such responsibility ceases if is proved that the persons who might be held
responsible under it exercised the diligence of a good father of a family
 (diligentissimi patris familias) to prevent damage. It is clear, therefore, that it is not
representation, nor interest, nor even the necessity of having somebody else answer
for the damages caused by the persons devoid of personality, but it is the non-
performance of certain duties of precaution and prudence imposed upon the persons
who become responsible by civil bond uniting the actor to them, which forms the
foundation of such responsibility. 44
The above rule is, of course, applicable only where there is an employer-employee relationship,
although it is not necessary that the employer be engaged in business or industry. Whether or not
engaged in any business or industry, the employer under Article 2180 is liable for torts committed
by his employees within the scope of their assigned tasks. But, it is necessary first to establish the
employment relationship. Once this is done, the plaintiff must show, to hold the employer liable,
that the employee was acting within the scope of his assigned task when the tort complained of
was committed. It is only then that the defendant, as employer, may find it necessary to interpose
the defense of due diligence in the selection and supervision of employees. 45 The diligence of a
good father of a family required to be observed by employers to prevent damages under Article
2180 refers to due diligence in the selection and supervision of employees in order to protect the
public. 46
With the allegation and subsequent proof of negligence against the defendant driver and of an
employer-employee relation between him and his co-defendant MMTC in this instance, the case
in undoubtedly based on a quasi-delict under Article 2180 47 When the employee causes damage
due to his own negligence while performing his own duties, there arises the juris tantum
presumption that the employer is negligent, 48 rebuttable only by proof of observance of the
diligence of a good father of a family. For failure to rebut such legal presumption of negligence in
the selection and supervision of employees, the employer is likewise responsible for damages, 49
the basis of the liability being the relationship of pater familias or on the employer's own
negligence. 50
As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have consistently held that
where the injury is due to the concurrent negligence of the drivers of the colliding vehicles, the
drivers and owners of the said vehicles shall be primarily, directly and solidarily liable for damages
and it is immaterial that one action is based on quasi-delict and the other on culpa contractual, as
the solidarily of the obligation is justified by the very nature thereof. 52
It should be borne in mind that the legal obligation of employers to observe due diligence in the
selection and supervision of employees is not to be considered as an empty play of words or a mere
formalism, as appears to be the fashion of the times, since the non-observance thereof actually
becomes the basis of their vicarious liability under Article 2180.
On the matter of selection of employees, Campo vs. Camarote, supra, lays down this admonition:
. . . . In order tat the owner of a vehicle may be considered as having exercised all
diligence of a good father of a family, he should not have been satisfied with the
mere possession of a professional driver's license; he should have carefully
examined the applicant for employment as to his qualifications, his experience and
 record of service. These steps appellant failed to observe; he has therefore, failed
to exercise all due diligence required of a good father of a family in the choice or
selection of driver.
Due diligence in the supervision of employees, on the other hand, includes the formulation of
suitable rules and regulations for the guidance of employees and the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has relations through
his or its employees and the imposition of necessary disciplinary measures upon employees in case
of breach or as may be warranted to ensure the performance of acts indispensable to the business
of and beneficial to their employer. 53 To this, we add that actual implementation and monitoring
of consistent compliance with said rules should be the constant concern of the employer, acting
through dependable supervisors who should regularly report on their supervisory functions.
In order that the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to
the presumption of negligence on the part of the employer, the latter has the burden of proving that
it has been diligent not only in the selection of employees but also in the actual supervision of their
work. The mere allegation of the existence of hiring procedures and supervisory policies, without
anything more, is decidedly not sufficient to overcome presumption.
We emphatically reiterate our holding, as a warning to all employers, that "(t)he mere formulation
of various company policies on safety without showing that they were being complied with is not
sufficient to exempt petitioner from liability arising from negligence of its employees. It is
incumbent upon petitioner to show that in recruiting and employing the erring driver the
recruitment procedures and company policies on efficiency and safety were followed." 54 Paying
lip-service to these injunctions or merely going through the motions of compliance therewith will
warrant stern sanctions from the Court.
These obligations, imposed by the law and public policy in the interests and for the safety of the
commuting public, herein petitioner failed to perform. Respondent court was definitely correct in
ruling that ". . . due diligence in the selection and supervision of employee (is) not proved by mere
testimonies to the effect that its applicant has complied with all the company requirements before
one is admitted as an employee but without proof thereof." 55 It is further a distressing commentary
on petitioner that it is a government-owned public utility, maintained by public funds, and
organized for the public welfare.
The Court it is necessary to once again stress the following rationale behind these all-important
statutory and jurisprudential mandates, for it has been observed that despite its pronouncement in
Kapalaran Bus Line vs. Coronado, et al., supra, there has been little improvement in the transport
situation in the country:
In requiring the highest possible degree of diligence from common carriers and
creating a presumption of negligence against them, the law compels them to curb
the recklessness of their drivers. While the immediate beneficiaries of the standard
of extraordinary diligence are, of course, the passengers and owners of the cargo
 carried by a common carrier, they are not the only persons that the law seeks to
benefit. For if common carriers carefully observe the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but
simultaneously benefit pedestrians and the owners and passengers of other vehicles
who are equally entitled to the safe and convenient use of our roads and highways.
The law seeks to stop and prevent the slaughter and maiming of people (whether
passengers or not) and the destruction of property (whether freight or not) on our
highways by buses, the very size and power of which seem often to inflame the
minds of their drivers. . . .
Finally, we believe that respondent court acted in the exercise of sound discretion when it affirmed
the trial court's award, without requiring the payment of interest thereon as an item of damages
just because of delay in the determination thereof, especially since private respondent did not
specifically pray therefor in her complaint. Article 2211 of the Civil Code provides that in quasi-
delicts, interest as a part of the damages may be awarded in the discretion of the court, and not as
a matter of right. We do not perceive that there have been international dilatory maneuvers or any
special circumstances which would justify that additional award and, consequently, we find no
reason to disturb said ruling.
WHEREFORE, the impugned decision of respondent Court of Appeals is hereby AFFIRMED.
SO ORDERED.

Prescription
FIRST DIVISION
G.R. No. L-83524 October 13, 1989
ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners,
vs.
HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.
Rodolfo D. Mapile for petitioners.
Jose Al. Perez for private respondent.

GANCAYCO, J.:
The principal issue in this Petition for Review is whether or not a Complaint for damages instituted
by the petitioners against the private respondent arising from a marine collision is barred by the
statute of limitations.
The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a
fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating its
way from Marinduque to Manila. Somewhere near Maricabon Island and Cape Santiago, the boat
figured in a collision with an inter-island vessel, the M/V Asia Philippines owned by the private
respondent Trans-Asia Shipping Lines, Inc. As a consequence of the collision, the F/B Marjolea
sank, taking with it its fish catch.
After the mishap, the captains of both vessels filed their respective marine protests with the Board
of Marine Inquiry of the Philippine Coast Guard. The Board conducted an investigation for the
purpose of determining the proximate cause of the maritime collision.
On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch was
attributable to the negligence of the employees of the private respondent who were on board the
M/V Asia Philippines during the collision. The findings made by the Board served as the basis of
a subsequent Decision of the Commandant of the Philippine Coast Guard dated April 29, 1982
wherein the second mate of the M/V Asia Philippines was suspended from pursuing his profession
as a marine officer.1
On May 30, 1985, the petitioners instituted a Complaint for damages against the private respondent
before Branch 117 of the Regional Trial Court in Pasay City.2 The suit was docketed as Civil Case
No. 2907-P.
The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of
prescription. He argued that under Article 1146 of the Civil Code, 3 the prescriptive period for
instituting a Complaint for damages arising from a quasi-delict like a maritime collision is four
years. He maintained that the petitioners should have filed their Complaint within four years from
the date when their cause of action accrued, i.e., from April 8, 1976 when the maritime collision
took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted beyond the
four-year prescriptive period.
For their part, the petitioners contended that maritime collisions have peculiarities and
characteristics which only persons with special skill, training and experience like the members of
the Board of Marine Inquiry can properly analyze and resolve. The petitioners argued that the
running of the prescriptive period was tolled by the filing of the marine protest and that their cause
of action accrued only on April 29, 1982, the date when the Decision ascertaining the negligence
of the crew of the M/V Asia Philippines had become final, and that the four-year prescriptive
period under Article 1146 of the Civil Code should be computed from the said date. The petitioners
concluded that inasmuch as the Complaint was filed on May 30, 1985, the same was seasonably
filed.
In an Order dated September 25, 1986,4 the trial court denied the Motion filed by the private
respondent. The trial court observed that in ascertaining negligence relating to a maritime collision,
there is a need to rely on highly technical aspects attendant to such collision, and that the Board of
Marine Inquiry was constituted pursuant to the Philippine Merchant Marine Rules and Regulations,
which took effect on January 1, 1975 by virtue of Letter of Instruction No. 208 issued on August
12, 1974 by then President Ferdinand E. Marcos, precisely to answer the need. The trial court went
on to say that the four-year prescriptive period provided in Article 1146 of the Civil Code should
begin to run only from April 29, 1982, the date when the negligence of the crew of the M/V Asia
Philippines had been finally ascertained. The pertinent portions of the Order of the trial court are
as follows —
 Considering that the action concerns an incident involving a collision at sea of two
vehicles and to determine negligence for that incident there is an absolute need to
rely on highly technical aspects attendant to such collisions. It is obviously to
answer such a need that the Marine Board of Inquiry (Sic) was constituted pursuant
to the Philippine Merchant Marine Rules and Regulations which became effective
January 1, 1975 under Letter of Instruction(s) No. 208 dated August 12, 1974. The
relevant section of that law (Art. XVI/b/ provided as follow(s):
1. Board of Marine Inquiry (BMI) — Shall have the
jurisdiction to investigate marine accidents or
casualties relative to the liability of shipowners and
officers, exclusive jurisdiction to investigate
cases/complaints against the marine officers; and to
review all proceedings or investigation conducted by
the Special Boards of Marine Inquiry.
2. Special Board of Marine Inquiry. — Shall have
original jurisdiction to investigate marine casualties
and disasters which occur or are committed within
the limits of the Coast Guard District concerned or
those referred by the Commandant.
The Court finds reason in the argument of the plaintiff that marine incidents have
those 'peculiarities which only persons of special skill, training and exposure can
rightfully decipher and resolve on the matter of the negligence and liabilities of
parties involved and inasmuch as the report of the Board of Inquiry (sic) admittedly
came out only on April 29, 1982, the prescriptive period provided x x x under Art.
1146 of the Civil Code should begin to run only from that date. The complaint was
filed with this Court on May 10, 1985, hence the statute of limitations can not
constitute a bar to the filing of this case.5
The private respondent elevated the case to the Court of Appeals by way of a special civil action
for certiorari and prohibition, alleging therein that the trial court committed a grave abuse of
discretion in refusing to dismiss the Complaint filed by the petitioners. The case was assigned to
the Second Division of the appellate court and was docketed as Case No. CA-G.R. SP No. 12032.6
In a Decision dated November 27, 1987,7 and clarified in a Resolution dated January 12, 1988,8
the Court of Appeals granted the Petition filed by the private respondent and ordered the trial court
to dismiss the Complaint. The pertinent portions of the Decision of the appellate court are as
follows —
It is clear that the cause of action of private respondent (the herein petitioners
Ernesto Kramer, Jr. and Marta Kramer) accrued from the occurrence of the mishap
because that is the precise time when damages were inflicted upon and sustained
by the aggrieved party and from which relief from the court is presently sought.
Private respondents should have immediately instituted a complaint for damages
 based on a quasi-delict within four years from the said marine incident because its
cause of action had already definitely ripened at the onset of the collision. For this
reason, he (sic) could cite the negligence on the part of the personnel of the
petitioner to exercise due care and lack of (sic) diligence to prevent the collision
that resulted in the total loss of their x x x boat.
We can only extend scant consideration to respondent judge's reasoning that in view
of the nature of the marine collision that allegedly involves highly technical aspects,
the running of the prescriptive period should only commence from the finality of
the investigation conducted by the Marine Board of Inquiry (sic) and the decision
of the Commandant, Philippine Coast Guard, who has original jurisdiction over the
mishap. For one, while it is true that the findings and recommendation of the Board
and the decision of the Commandant may be helpful to the court in ascertaining
which of the parties are at fault, still the former (court) is not bound by said findings
and decision. Indeed, the same findings and decision could be entirely or partially
admitted, modified, amended, or disregarded by the court according to its lights and
judicial discretion. For another, if the accrual of a cause of action will be made to
depend on the action to be taken by certain government agencies, then necessarily,
the tolling of the prescriptive period would hinge upon the discretion of such
agencies. Said alternative it is easy to foresee would be fraught with hazards. Their
investigations might be delayed and lag and then witnesses in the meantime might
not be available or disappear, or certain documents may no longer be available or
might be mislaid. ... 9
The petitioners filed a Motion for the reconsideration of the said Decision but the same was denied
by the Court of Appeals in a Resolution dated May 27, 1988.10
Hence, the instant Petition wherein the arguments raised by the petitioner before the trial court are
reiterated.11 In addition thereto, the petitioner contends that the Decision of the Court of Appeals
12 The private respondent filed its Comment on the Petition seeking therein the dismissal of the
same.13 It is also contended by the private respondent that the ruling of the Court in Vasquez is
not applicable to the case at bar because the said case involves a maritime collision attributable to
a fortuitous event. In a subsequent pleading, the private respondent argues that the Philippine
Merchant Marine Rules and Regulations cannot have the effect of repealing the provisions of the
Civil Code on prescription of actions.14
On September 19,1988, the Court resolved to give due course to the petition.15 After the parties
filed their respective memoranda, the case was deemed submitted for decision.
The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a
quasi-delict must be instituted within four (4) years. The prescriptive period begins from the day
the quasi-delict is committed. In Paulan vs. Sarabia,16 this Court ruled that in an action for
damages arising from the collision of two (2) trucks, the action being based on a quasi-delict, the
four (4) year prescriptive period must be counted from the day of the collision.
In Espanol vs. Chairman, Philippine Veterans Administration, 17 this Court held as follows-
 The right of action accrues when there exists a cause of action, which consists of 3
elements, namely: a) a right in favor of the plaintiff by whatever means and under
whatever law it arises or is created; b) an obligation on the part of defendant to
respect such right; and c) an act or omission on the part of such defendant violative
of the right of the plaintiff ... It is only when the last element occurs or takes place
that it can be said in law that a cause of action has arisen ... .
From the foregoing ruling, it is clear that the prescriptive period must be counted when the last
element occurs or takes place, that is, the time of the commission of an act or omission violative
of the right of the plaintiff, which is the time when the cause of action arises.
It is therefore clear that in this action for damages arising from the collision of two (2) vessels the
four (4) year prescriptive period must be counted from the day of the collision. The aggrieved party
need not wait for a determination by an administrative body like a Board of Marine Inquiry, that
the collision was caused by the fault or negligence of the other party before he can file an action
for damages. The ruling in Vasquez does not apply in this case. Immediately after the collision the
aggrieved party can seek relief from the courts by alleging such negligence or fault of the owners,
agents or personnel of the other vessel.
Thus, the respondent court correctly found that the action of petitioner has prescribed. The
collision occurred on April 8, 1976. The complaint for damages was filed iii court only on May
30, 1 985, was beyond the four (4) year prescriptive period.
WHEREFORE, the petition is dismissed. No costs.
SO ORDERED.

Double recovery
EN BANC
G.R. No. L-30642 April 30, 1985
PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors ROMULO and
NESTOR S. FLORESCA; and ERLINDA FLORESCA-GABUYO, PEDRO S.
FLORESCA, JR., CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S.
FLORESCA and CARMEN S. FLORESCA;
LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her minor
children LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez; and
DANIEL MARTINEZ and TOMAS MARTINEZ;
SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her minor
children JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed OBRA;
LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her minor
children EDNA, GEORGE and LARRY III, all surnamed VILLAR;
DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of her
minor children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and
AURELIO, JR. all surnamed LANUZA;
EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her minor
children JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed ISLA,
petitioners,
vs.
PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of
Branch XIII, Court of First Instance of Manila, respondents.
Rodolfo C. Pacampara for petitioners.
Tito M. Villaluna for respondents.

MAKASIAR, J.:
This is a petition to review the order of the former Court of First Instance of Manila, Branch XIII,
dated December 16, 1968 dismissing petitioners' complaint for damages on the ground of lack of
jurisdiction.
Petitioners are the heirs of the deceased employees of Philex Mining Corporation (hereinafter
referred to as Philex), who, while working at its copper mines underground operations at Tuba,
Benguet on June 28, 1967, died as a result of the cave-in that buried them in the tunnels of the
mine. Specifically, the complaint alleges that Philex, in violation of government rules and
regulations, negligently and deliberately failed to take the required precautions for the protection
of the lives of its men working underground. Portion of the complaint reads:
xxx xxx xxx
9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with
gross and reckless negligence and imprudence and deliberate failure to take the
required precautions for the due protection of the lives of its men working
underground at the time, and in utter violation of the laws and the rules and
regulations duly promulgated by the Government pursuant thereto, allowed great
amount of water and mud to accumulate in an open pit area at the mine above Block
43-S-1 which seeped through and saturated the 600 ft. column of broken ore and
rock below it, thereby exerting tremendous pressure on the working spaces at its
4300 level, with the result that, on the said date, at about 4 o'clock in the afternoon,
with the collapse of all underground supports due to such enormous pressure,
approximately 500,000 cubic feet of broken ores rocks, mud and water,
accompanied by surface boulders, blasted through the tunnels and flowed out and
filled in, in a matter of approximately five (5) minutes, the underground workings,
ripped timber supports and carried off materials, machines and equipment which
blocked all avenues of exit, thereby trapping within its tunnels of all its men above
referred to, including those named in the next preceding paragraph, represented by
the plaintiffs herein;
 10. That out of the 48 mine workers who were then working at defendant PHILEX's
mine on the said date, five (5) were able to escape from the terrifying holocaust; 22
were rescued within the next 7 days; and the rest, 21 in number, including those
referred to in paragraph 7 hereinabove, were left mercilessly to their fate,
notwithstanding the fact that up to then, a great many of them were still alive,
entombed in the tunnels of the mine, but were not rescued due to defendant
PHILEX's decision to abandon rescue operations, in utter disregard of its bounden
legal and moral duties in the premises;
xxx xxx xxx
13. That defendant PHILEX not only violated the law and the rules and regulations
duly promulgated by the duly constituted authorities as set out by the Special
Committee above referred to, in their Report of investigation, pages 7-13, Annex
'B' hereof, but also failed completely to provide its men working underground the
necessary security for the protection of their lives notwithstanding the fact that it
had vast financial resources, it having made, during the year 1966 alone, a total
operating income of P 38,220,254.00, or net earnings, after taxes of P19,117,394.00,
as per its llth Annual Report for the year ended December 31, 1966, and with
aggregate assets totalling P 45,794,103.00 as of December 31, 1966;
xxx xxx xxx
(pp. 42-44, rec.)
A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of action of
petitioners based on an industrial accident are covered by the provisions of the Workmen's
Compensation Act (Act 3428, as amended by RA 772) and that the former Court of First Instance
has no jurisdiction over the case. Petitioners filed an opposition dated May 27, 1968 to the said
motion to dismiss claiming that the causes of action are not based on the provisions of the
Workmen's Compensation Act but on the provisions of the Civil Code allowing the award of actual,
moral and exemplary damages, particularly:
Art. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre- existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter.
Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-
delict.
(b) 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 2201, paragraph 2
shall apply.
Art. 2201. x x x x x x x x x
 In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant
acted with gross negligence.
After a reply and a rejoinder thereto were filed, respondent Judge issued an order dated June 27,
1968 dismissing the case on the ground that it falls within the exclusive jurisdiction of the
Workmen's Compensation Commission. On petitioners' motion for reconsideration of the said
order, respondent Judge, on September 23, 1968, reconsidered and set aside his order of June 27,
1968 and allowed Philex to file an answer to the complaint. Philex moved to reconsider the
aforesaid order which was opposed by petitioners.
On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction and ruled that
in accordance with the established jurisprudence, the Workmen's Compensation Commission has
exclusive original jurisdiction over damage or compensation claims for work-connected deaths or
injuries of workmen or employees, irrespective of whether or not the employer was negligent,
adding that if the employer's negligence results in work-connected deaths or injuries, the employer
shall, pursuant to Section 4-A of the Workmen's Compensation Act, pay additional compensation
equal to 50% of the compensation fixed in the Act.
Petitioners thus filed the present petition.
In their brief, petitioners raised the following assignment of errors:
I
THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS-
PETITIONERS' COMPLAINT FOR LACK OF JURISDICTION.
II
THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR
DISTINCTION BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL
CODE AND CLAIMS FOR COMPENSATION UNDER THE WORKMEN'S
COMPENSATION ACT.
A
In the first assignment of error, petitioners argue that the lower court has jurisdiction over the cause
of action since the complaint is based on the provisions of the Civil Code on damages, particularly
Articles 2176, 2178, 1173, 2201 and 2231, and not on the provisions of the Workmen's
Compensation Act. They point out that the complaint alleges gross and brazen negligence on the
part of Philex in failing to take the necessary security for the protection of the lives of its employees
working underground. They also assert that since Philex opted to file a motion to dismiss in the
court a quo, the allegations in their complaint including those contained in the annexes are deemed
admitted.
In the second assignment of error, petitioners asseverate that respondent Judge failed to see the
distinction between the claims for compensation under the Workmen's Compensation Act and the
claims for damages based on gross negligence of Philex under the Civil Code. They point out that
workmen's compensation refers to liability for compensation for loss resulting from injury,
disability or death of the working man through industrial accident or disease, without regard to the
fault or negligence of the employer, while the claim for damages under the Civil Code which
petitioners pursued in the regular court, refers to the employer's liability for reckless and wanton
negligence resulting in the death of the employees and for which the regular court has jurisdiction
to adjudicate the same.
On the other hand, Philex asserts that work-connected injuries are compensable exclusively under
the provisions of Sections 5 and 46 of the Workmen's Compensation Act, which read:
SEC. 5. Exclusive right to compensation.—The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury ...
SEC. 46. Jurisdiction.— The Workmen's Compensation Commissioner shall have
exclusive jurisdiction to hear and decide claims for compensation under the
Workmen's Compensation Act, subject to appeal to the Supreme Court, ...
Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was held that
"all claims of workmen against their employer for damages due to accident suffered in the course
of employment shall be investigated and adjudicated by the Workmen's Compensation
Commission," subject to appeal to the Supreme Court.
Philex maintains that the fact that an employer was negligent, does not remove the case from the
exclusive character of recoveries under the Workmen's Compensation Act; because Section 4-A
of the Act provides an additional compensation in case the employer fails to comply with the
requirements of safety as imposed by law to prevent accidents. In fact, it points out that Philex
voluntarily paid the compensation due the petitioners and all the payments have been accepted in
behalf of the deceased miners, except the heirs of Nazarito Floresca who insisted that they are
entitled to a greater amount of damages under the Civil Code.
In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. Edgardo Angara,
now President of the University of the Philippines, Justice Manuel Lazaro, as corporate counsel
and Assistant General Manager of the GSIS Legal Affairs Department, and Commissioner on
Elections, formerly UP Law Center Director Froilan Bacungan, appeared as amici curiae and
thereafter, submitted their respective memoranda.
The issue to be resolved as WE stated in the resolution of November 26, 1976, is:
Whether the action of an injured employee or worker or that of his heirs in case of
his death under the Workmen's Compensation Act is exclusive, selective or
cumulative, that is to say, whether his or his heirs' action is exclusively restricted
to seeking the limited compensation provided under the Workmen's Compensation
Act or whether they have a right of selection or choice of action between availing
of the worker's right under the Workmen's Compensation Act and suing in the
regular courts under the Civil Code for higher damages (actual, moral and/or
 exemplary) from the employer by virtue of negligence (or fault) of the employer or
of his other employees or whether they may avail cumulatively of both actions, i.e.,
collect the limited compensation under the Workmen's Compensation Act and sue
in addition for damages in the regular courts.
There are divergent opinions in this case. Justice Lazaro is of the opinion that an injured employee
or worker, or the heirs in case of his death, may initiate a complaint to recover damages (not
compensation under the Workmen's Compensation Act) with the regular court on the basis of
negligence of an employer pursuant to the Civil Code provisions. Atty. Angara believes otherwise.
He submits that the remedy of an injured employee for work-connected injury or accident is
exclusive in accordance with Section 5 of the Workmen's Compensation Act, while Atty.
Bacungan's position is that the action is selective. He opines that the heirs of the employee in case
of his death have a right of choice to avail themselves of the benefits provided under the
Workmen's Compensation Act or to sue in the regular court under the Civil Code for higher
damages from the employer by virtue of negligence of the latter. Atty. Bocobo's stand is the same
as that of Atty. Bacungan and adds that once the heirs elect the remedy provided for under the Act,
they are no longer entitled to avail themselves of the remedy provided for under the Civil Code by
filing an action for higher damages in the regular court, and vice versa.
On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a motion to
dismiss on the ground that they have amicably settled their claim with respondent Philex. In the
resolution of September 7, 1978, WE dismissed the petition only insofar as the aforesaid
petitioners are connected, it appearing that there are other petitioners in this case.
WE hold that the former Court of First Instance has jurisdiction to try the case,
It should be underscored that petitioners' complaint is not for compensation based on the
Workmen's Compensation Act but a complaint for damages (actual, exemplary and moral) in the
total amount of eight hundred twenty-five thousand (P825,000.00) pesos. Petitioners did not
invoke the provisions of the Workmen's Compensation Act to entitle them to compensation
thereunder. In fact, no allegation appeared in the complaint that the employees died from accident
arising out of and in the course of their employments. The complaint instead alleges gross and
reckless negligence and deliberate failure on the part of Philex to protect the lives of its workers
as a consequence of which a cave-in occurred resulting in the death of the employees working
underground. Settled is the rule that in ascertaining whether or not the cause of action is in the
nature of workmen's compensation claim or a claim for damages pursuant to the provisions of the
Civil Code, the test is the averments or allegations in the complaint (Belandres vs. Lopez Sugar
Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between Philex and the deceased employees a contractual
relationship. The alleged gross and reckless negligence and deliberate failure that amount to bad
faith on the part of Philex, constitute a breach of contract for which it may be held liable for
damages. The provisions of the Civil Code on cases of breach of contract when there is fraud or
bad faith, read:
 Art. 2232. In contracts and quasi-contracts, the court may award exemplary
damages if the defendant acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner.
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is able shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen
or could have reasonably foreseen at the time the obligation was constituted.
In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of damages, as
assessed by the court.
The rationale in awarding compensation under the Workmen's Compensation Act differs from that
in giving damages under the Civil Code. The compensation acts are based on a theory of
compensation distinct from the existing theories of damages, payments under the acts being made
as compensation and not as damages (99 C.J.S. 53). Compensation is given to mitigate the
harshness and insecurity of industrial life for the workman and his family. Hence, an employer is
liable whether negligence exists or not since liability is created by law. Recovery under the Act is
not based on any theory of actionable wrong on the part of the employer (99 C.J.S. 36).
In other words, under the compensation acts, the employer is liable to pay compensation benefits
for loss of income, as long as the death, sickness or injury is work-connected or work-aggravated,
even if the death or injury is not due to the fault of the employer (Murillo vs. Mendoza, 66 Phil.
689). On the other hand, damages are awarded to one as a vindication of the wrongful invasion of
his rights. It is the indemnity recoverable by a person who has sustained injury either in his person,
property or relative rights, through the act or default of another (25 C.J.S. 452).
The claimant for damages under the Civil Code has the burden of proving the causal relation
between the defendant's negligence and the resulting injury as well as the damages suffered. While
under the Workmen's Compensation Act, there is a presumption in favor of the deceased or injured
employee that the death or injury is work-connected or work-aggravated; and the employer has the
burden to prove otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA
551; Maria Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228).
The claim of petitioners that the case is not cognizable by the Workmen's Compensation
Commission then, now Employees Compensation Commission, is strengthened by the fact that
unlike in the Civil Code, the Workmen's Compensation Act did not contain any provision for an
award of actual, moral and exemplary damages. What the Act provided was merely the right of
the heirs to claim limited compensation for the death in the amount of six thousand (P6,000.00)
pesos plus burial expenses of two hundred (P200.00) pesos, and medical expenses when incurred
(Sections 8, 12 and 13, Workmen's Compensation Act), and an additional compensation of only
50% if the complaint alleges failure on the part of the employer to "install and maintain safety
appliances or to take other precautions for the prevention of accident or occupational disease"
(Section 4-A, Ibid.). In the case at bar, the amount sought to be recovered is over and above that
which was provided under the Workmen's Compensation Act and which cannot be granted by the
Commission.
Moreover, under the Workmen's Compensation Act, compensation benefits should be paid to an
employee who suffered an accident not due to the facilities or lack of facilities in the industry of
his employer but caused by factors outside the industrial plant of his employer. Under the Civil
Code, the liability of the employer, depends on breach of contract or tort. The Workmen's
Compensation Act was specifically enacted to afford protection to the employees or workmen. It
is a social legislation designed to give relief to the workman who has been the victim of an accident
causing his death or ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA
379).
WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the worker's right
under the Workmen's Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and exemplary) from the employers by virtue of that negligence or
fault of the employers or whether they may avail themselves cumulatively of both actions, i.e.,
collect the limited compensation under the Workmen's Compensation Act and sue in addition for
damages in the regular courts.
In disposing of a similar issue, this Court in Pacana vs. Cebu Autobus Company, 32 SCRA 442,
ruled that an injured worker has a choice of either to recover from the employer the fixed amounts
set by the Workmen's Compensation Act or to prosecute an ordinary civil action against the
tortfeasor for higher damages but he cannot pursue both courses of action simultaneously.
In Pacaña WE said:
In the analogous case of Esguerra vs. Munoz Palma, involving the application of
Section 6 of the Workmen's Compensation Act on the injured workers' right to sue
third- party tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again
speaking for the Court, pointed out that the injured worker has the choice of
remedies but cannot pursue both courses of action simultaneously and thus
balanced the relative advantage of recourse under the Workmen's Compensation
Act as against an ordinary action.
As applied to this case, petitioner Esguerra cannot maintain his action for damages
against the respondents (defendants below), because he has elected to seek
compensation under the Workmen's Compensation Law, and his claim (case No.
44549 of the Compensation Commission) was being processed at the time he filed
this action in the Court of First Instance. It is argued for petitioner that as the
damages recoverable under the Civil Code are much more extensive than the
amounts that may be awarded under the Workmen's Compensation Act, they should
not be deemed incompatible. As already indicated, the injured laborer was initially
free to choose either to recover from the employer the fixed amounts set by the
Compensation Law or else, to prosecute an ordinary civil action against the
 tortfeasor for higher damages. While perhaps not as profitable, the smaller
indemnity obtainable by the first course is balanced by the claimant's being relieved
of the burden of proving the causal connection between the defendant's negligence
and the resulting injury, and of having to establish the extent of the damage
suffered; issues that are apt to be troublesome to establish satisfactorily. Having
staked his fortunes on a particular remedy, petitioner is precluded from pursuing
the alternate course, at least until the prior claim is rejected by the Compensation
Commission. Anyway, under the proviso of Section 6 aforequoted, if the employer
Franklin Baker Company recovers, by derivative action against the alleged
tortfeasors, a sum greater than the compensation he may have paid the herein
petitioner, the excess accrues to the latter.
Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies to third-
party tortfeasor, said rule should likewise apply to the employer-tortfeasor.
Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition has been
dismissed in the resolution of September 7, 1978 in view of the amicable settlement reached by
Philex and the said heirs.
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May
14, 1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra,
Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino Martinez submitted notices and
claims for compensation to the Regional Office No. 1 of the then Department of Labor and all of
them have been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided
that they be paid in installments (pp. 106-107, rec.). Such allegation was admitted by herein
petitioners in their opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) in
the lower court, but they set up the defense that the claims were filed under the Workmen's
Compensation Act before they learned of the official report of the committee created to investigate
the accident which established the criminal negligence and violation of law by Philex, and which
report was forwarded by the Director of Mines to the then Executive Secretary Rafael Salas in a
letter dated October 19, 1967 only (p. 76, rec.).
WE hold that although the other petitioners had received the benefits under the Workmen's
Compensation Act, such may not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been
aware of said violation of government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmen's Compensation Commission which awarded
a lesser amount for compensation. The choice of the first remedy was based on ignorance or a
mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However, should the petitioners
be successful in their bid before the lower court, the payments made under the Workmen's
Compensation Act should be deducted from the damages that may be decreed in their favor.
B
Contrary to the perception of the dissenting opinion, the Court does not legislate in the instant case.
The Court merely applies and gives effect to the constitutional guarantees of social justice then
secured by Section 5 of Article 11 and Section 6 of Article XIV of the 1935 Constitution, and now
by Sections 6, 7, and 9 of Article 11 of the DECLARATION OF PRINCIPLES AND STATE
POLICIES of the 1973 Constitution, as amended, and as implemented by Articles 2176, 2177,
2178, 1173, 2201, 2216, 2231 and 2232 of the New Civil Code of 1950.
To emphasize, the 1935 Constitution declares that:
Sec. 5. The promotion of social justice to insure the well-being and economic
security of all the people should be the concern of the State (Art. II).
Sec. 6. The State shall afford protection to labor, especially to working women, and
minors, and shall regulate the relations between landowner and tenant, and between
labor and capital in industry and in agriculture. The State may provide for
compulsory arbitration (Art. XIV).
The 1973 Constitution likewise commands the State to "promote social justice to insure the dignity,
welfare, and security of all the people "... regulate the use ... and disposition of private property
and equitably diffuse property ownership and profits "establish, maintain and ensure adequate
social services in, the field of education, health, housing, employment, welfare and social security
to guarantee the enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II,
1973 Constitution); "... afford protection to labor, ... and regulate the relations between workers
and employers ..., and assure the rights of workers to ... just and humane conditions of work" (Sec.
9, Art. II, 1973 Constitution, emphasis supplied).
The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of Article
11 of the 1973 Constitution and re-stated as a declaration of basic policy in Article 3 of the New
Labor Code, thus:
Art. 3. Declaration of basic policy.—The State shall afford protection to labor,
promote full employment, ensure equal work opportunities regardless of sex, race
or creed, and regulate the relations between workers and employers. The State shall
assure the rights of workers to self-organization, collective bargaining, security of
tenure, and just and humane conditions of work. (emphasis supplied).
The aforestated constitutional principles as implemented by the aforementioned articles of the New
Civil Code cannot be impliedly repealed by the restrictive provisions of Article 173 of the New
Labor Code. Section 5 of the Workmen's Compensation Act (before it was amended by R.A. No.
772 on June 20, 1952), predecessor of Article 173 of the New Labor Code, has been superseded
by the aforestated provisions of the New Civil Code, a subsequent law, which took effect on
August 30, 1950, which obey the constitutional mandates of social justice enhancing as they do
the rights of the workers as against their employers. Article 173 of the New Labor Code seems to
diminish the rights of the workers and therefore collides with the social justice guarantee of the
Constitution and the liberal provisions of the New Civil Code.
The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the 1973
Constitution are statements of legal principles to be applied and enforced by the courts. Mr. Justice
Robert Jackson in the case of West Virginia State Board of Education vs. Barnette, with
characteristic eloquence, enunciated:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One's right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638,
emphasis supplied).
In case of any doubt which may be engendered by Article 173 of the New Labor Code, both the
New Labor Code and the Civil Code direct that the doubts should be resolved in favor of the
workers and employees.
Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. 442, as
amended, promulgated on May 1, 1974, but which took effect six months thereafter, provides that
"all doubts in the implementation and interpretation of the provisions of this Code, including its
implementing rules and regulations, shall be resolved in favor of labor" (Art. 2, Labor Code).
Article 10 of the New Civil Code states: "In case of doubt in the interpretation or application of
laws, it is presumed that the law-making body intended right and justice to prevail. "
More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of doubt, all
labor legislation and all labor contracts shall be construed in favor of the safety and decent living
of the laborer."
Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of the
Workmen's Compensation Act provided:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury (emphasis supplied).
Employers contracting laborecsrs in the Philippine Islands for work outside the
same may stipulate with such laborers that the remedies prescribed by this Act shall
apply exclusively to injuries received outside the Islands through accidents
happening in and during the performance of the duties of the employment; and all
service contracts made in the manner prescribed in this section shall be presumed
to include such agreement.
Only the second paragraph of Section 5 of the Workmen's Compensation Act No. 3428, was
amended by Commonwealth Act No. 772 on June 20, 1952, thus:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
 representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury.
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall
apply to injuries received outside the Island through accidents happening in and
during the performance of the duties of the employment. Such stipulation shall not
prejudice the right of the laborers to the benefits of the Workmen's Compensation
Law of the place where the accident occurs, should such law be more favorable to
them (As amended by section 5 of Republic Act No. 772).
Article 173 of the New Labor Code does not repeal expressly nor impliedly the applicable
provisions of the New Civil Code, because said Article 173 provides:
Art. 173. Exclusiveness of liability.- Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended, Commonwealth Act Numbered
One hundred eighty- six, as amended, Commonwealth Act Numbered Six hundred
ten, as amended, Republic Act Numbered Forty-eight hundred Sixty-four, as
amended, and other laws whose benefits are administered by the System during the
period of such payment for the same disability or death, and conversely (emphasis
supplied).
As above-quoted, Article 173 of the New Labor Code expressly repealed only Section 699 of the
Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as amended, R.A. No.
610, as amended, R.A. No. 4864, as amended, and all other laws whose benefits are administered
by the System (referring to the GSIS or SSS).
Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of the New
Labor Code does not even remotely, much less expressly, repeal the New Civil Code provisions
heretofore quoted.
It is patent, therefore, that recovery under the New Civil Code for damages arising from negligence,
is not barred by Article 173 of the New Labor Code. And the damages recoverable under the New
Civil Code are not administered by the System provided for by the New Labor Code, which defines
the "System" as referring to the Government Service Insurance System or the Social Security
System (Art. 167 [c], [d] and [e] of the New Labor Code).
Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court form part of
the law of the land.
Article 8 of the New Civil Code provides:
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines.
The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled:
Article 8 of the Civil Code of the Philippines decrees that judicial decisions
applying or interpreting the laws or the Constitution form part of this jurisdiction's
legal system. These decisions, although in themselves not laws, constitute evidence
of what the laws mean. The application or interpretation placed by the Court upon
a law is part of the law as of the date of the enactment of the said law since the
Court's application or interpretation merely establishes the contemporaneous
legislative intent that the construed law purports to carry into effect" (65 SCRA 270,
272-273 [1975]).
WE ruled that judicial decisions of the Supreme Court assume the same authority as the statute
itself (Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763).
The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before and after it
was amended by Commonwealth Act No. 772 on June 20, 1952, limited the right of recovery in
favor of the deceased, ailing or injured employee to the compensation provided for therein. Said
Section 5 was not accorded controlling application by the Supreme Court in the 1970 case of
Pacana vs. Cebu Autobus Company (32 SCRA 442) when WE ruled that an injured worker has a
choice of either to recover from the employer the fixed amount set by the Workmen's
Compensation Act or to prosecute an ordinary civil action against the tortfeasor for greater
damages; but he cannot pursue both courses of action simultaneously. Said Pacana case penned by
Mr. Justice Teehankee, applied Article 1711 of the Civil Code as against the Workmen's
Compensation Act, reiterating the 1969 ruling in the case of Valencia vs. Manila Yacht Club (28
SCRA 724, June 30,1969) and the 1958 case of Esguerra vs. Munoz Palma (104 Phil. 582), both
penned by Justice J.B.L. Reyes. Said Pacana case was concurred in by Justices J.B.L. Reyes, Dizon,
Makalintal, Zaldivar, Castro, Fernando and Villamor.
Since the first sentence of Article 173 of the New Labor Code is merely a re-statement of the first
paragraph of Section 5 of the Workmen's Compensation Act, as amended, and does not even refer,
neither expressly nor impliedly, to the Civil Code as Section 5 of the Workmen's Compensation
Act did, with greater reason said Article 173 must be subject to the same interpretation adopted in
the cases of Pacana, Valencia and Esguerra aforementioned as the doctrine in the aforesaid three
(3) cases is faithful to and advances the social justice guarantees enshrined in both the 1935 and
1973 Constitutions.
It should be stressed likewise that there is no similar provision on social justice in the American
Federal Constitution, nor in the various state constitutions of the American Union. Consequently,
the restrictive nature of the American decisions on the Workmen's Compensation Act cannot limit
the range and compass of OUR interpretation of our own laws, especially Article 1711 of the New
Civil Code, vis-a-vis Article 173 of the New Labor Code, in relation to Section 5 of Article II and
Section 6 of Article XIV of the 1935 Constitution then, and now Sections 6, 7 and 9 of the
Declaration of Principles and State Policies of Article II of the 1973 Constitution.
The dissent seems to subordinate the life of the laborer to the property rights of the employer. The
right to life is guaranteed specifically by the due process clause of the Constitution. To relieve the
employer from liability for the death of his workers arising from his gross or wanton fault or failure
to provide safety devices for the protection of his employees or workers against the dangers which
are inherent in underground mining, is to deprive the deceased worker and his heirs of the right to
recover indemnity for the loss of the life of the worker and the consequent loss to his family without
due process of law. The dissent in effect condones and therefore encourages such gross or wanton
neglect on the part of the employer to comply with his legal obligation to provide safety measures
for the protection of the life, limb and health of his worker. Even from the moral viewpoint alone,
such attitude is un-Christian.
It is therefore patent that giving effect to the social justice guarantees of the Constitution, as
implemented by the provisions of the New Civil Code, is not an exercise of the power of law-
making, but is rendering obedience to the mandates of the fundamental law and the implementing
legislation aforementioned.
The Court, to repeat, is not legislating in the instant case.
It is axiomatic that no ordinary statute can override a constitutional provision.
The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the New Labor
Code subvert the rights of the petitioners as surviving heirs of the deceased mining employees.
Section 5 of the Workmen's Compensation Act and Article 173 of the New Labor Code are
retrogressive; because they are a throwback to the obsolete laissez-faire doctrine of Adam Smith
enunciated in 1776 in his treatise Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964),
which has been discarded soon after the close of the 18th century due to the Industrial Revolution
that generated the machines and other mechanical devices (beginning with Eli Whitney's cotton
gin of 1793 and Robert Fulton's steamboat of 1807) for production and transportation which are
dangerous to life, limb and health. The old socio-political-economic philosophy of live-and-let-
live is now superdesed by the benign Christian shibboleth of live-and-help others to live. Those
who profess to be Christians should not adhere to Cain's selfish affirmation that he is not his
brother's keeper. In this our civilization, each one of us is our brother's keeper. No man is an island.
To assert otherwise is to be as atavistic and ante-deluvian as the 1837 case of Prisley vs. Fowler
(3 MN 1,150 reprint 1030) invoked by the dissent, The Prisley case was decided in 1837 during
the era of economic royalists and robber barons of America. Only ruthless, unfeeling capitalistics
and egoistic reactionaries continue to pay obeisance to such un-Christian doctrine. The Prisley rule
humiliates man and debases him; because the decision derisively refers to the lowly worker as
"servant" and utilizes with aristocratic arrogance "master" for "employer." It robs man of his
inherent dignity and dehumanizes him. To stress this affront to human dignity, WE only have to
restate the quotation from Prisley, thus: "The mere relation of the master and the servant never can
imply an obligation on the part of the master to take more care of the servant than he may
reasonably be expected to do himself." This is the very selfish doctrine that provoked the American
Civil War which generated so much hatred and drew so much precious blood on American plains
and valleys from 1861 to 1864.
"Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of the law
insures man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth;
its spirit giveth life."
C
It is curious that the dissenting opinion clings to the myth that the courts cannot legislate.
That myth had been exploded by Article 9 of the New Civil Code, which provides that "No judge
or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the
laws. "
Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes that in
certain instances, the court, in the language of Justice Holmes, "do and must legislate" to fill in the
gaps in the law; because the mind of the legislator, like all human beings, is finite and therefore
cannot envisage all possible cases to which the law may apply Nor has the human mind the infinite
capacity to anticipate all situations.
But about two centuries before Article 9 of the New Civil Code, the founding fathers of the
American Constitution foresaw and recognized the eventuality that the courts may have to legislate
to supply the omissions or to clarify the ambiguities in the American Constitution and the statutes.
'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified but
denies that the power of the Judiciary to nullify statutes may give rise to Judicial tyranny (The
Federalist, Modern Library, pp. 503-511, 1937 ed.). Thomas Jefferson went farther to concede that
the court is even independent of the Nation itself (A.F.L. vs. American Sash Company, 1949 335
US 538).
Many of the great expounders of the American Constitution likewise share the same view. Chief
Justice Marshall pronounced: "It is emphatically the province and duty of the Judicial department
to say what the law is (Marbury vs. Madison I Cranch 127 1803), which was re-stated by Chief
Justice Hughes when he said that "the Constitution is what the judge says it is (Address on May 3,
1907, quoted by President Franklin Delano Roosevelt on March 9, 1937). This was reiterated by
Justice Cardozo who pronounced that "No doubt the limits for the judge are narrower. He legislates
only between gaps. He fills the open spaces in the law. " (The Nature of the Judicial Process, p.
113). In the language of Chief Justice Harlan F. Stone, "The only limit to the judicial legislation is
the restraint of the judge" (U.S. vs. Butler 297 U.S. 1 Dissenting Opinion, p. 79), which view is
also entertained by Justice Frankfurter and Justice Robert Jackson. In the rhetoric of Justice
Frankfurter, "the courts breathe life, feeble or strong, into the inert pages of the Constitution and
all statute books."
It should be stressed that the liability of the employer under Section 5 of the Workmen's
Compensation Act or Article 173 of the New Labor Code is limited to death, ailment or injury
caused by the nature of the work, without any fault on the part of the employers. It is correctly
termed no fault liability. Section 5 of the Workmen's Compensation Act, as amended, or Article
173 of the New Labor Code, does not cover the tortious liability of the employer occasioned by
his fault or culpable negligence in failing to provide the safety devices required by the law for the
protection of the life, limb and health of the workers. Under either Section 5 or Article 173, the
employer remains liable to pay compensation benefits to the employee whose death, ailment or
injury is work-connected, even if the employer has faithfully and diligently furnished all the safety
measures and contrivances decreed by the law to protect the employee.
The written word is no longer the "sovereign talisman." In the epigrammatic language of Mr.
Justice Cardozo, "the law has outgrown its primitive stage of formalism when the precise word
was the sovereign talisman, and every slip was fatal" (Wood vs. Duff Gordon 222 NW 88; Cardozo,
The Nature of the Judicial Process 100). Justice Cardozo warned that: "Sometimes the
conservatism of judges has threatened for an interval to rob the legislation of its efficacy. ...
Precedents established in those items exert an unhappy influence even now" (citing Pound,
Common Law and Legislation 21 Harvard Law Review 383, 387).
Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted, although
with a cautionary undertone: "that judges do and must legislate, but they can do so only
interstitially they are confined from molar to molecular motions" (Southern Pacific Company vs.
Jensen, 244 US 204 1917). And in the subsequent case of Springer vs. Government (277 US 188,
210-212, 72 L.ed. 845, 852- 853), Justice Holmes pronounced:
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. x x x. When we come to the
fundamental distinctions it is still more obvious that they must be received with a
certain latitude or our government could not go on.
To make a rule of conduct applicable to an individual who but for such action would
be free from it is to legislate yet it is what the judges do whenever they determine
which of two competing principles of policy shall prevail.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative
and executive action with mathematical precision and divide the branches into
waterlight compartments, were it ever so desirable to do so, which I am far from
believing that it is, or that the Constitution requires.
True, there are jurists and legal writers who affirm that judges should not legislate, but grudgingly
concede that in certain cases judges do legislate. They criticize the assumption by the courts of
such law-making power as dangerous for it may degenerate into Judicial tyranny. They include
Blackstone, Jeremy Bentham, Justice Black, Justice Harlan, Justice Roberts, Justice David Brewer,
Ronald Dworkin, Rolf Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices,
jurists or legal commentators, who either deny the power of the courts to legislate in-between gaps
of the law, or decry the exercise of such power, have not pointed to examples of the exercise by
the courts of such law-making authority in the interpretation and application of the laws in specific
cases that gave rise to judicial tyranny or oppression or that such judicial legislation has not
protected public interest or individual welfare, particularly the lowly workers or the
underprivileged.
On the other hand, there are numerous decisions interpreting the Bill of Rights and statutory
enactments expanding the scope of such provisions to protect human rights. Foremost among them
is the doctrine in the cases of Miranda vs. Arizona (384 US 436 1964), Gideon vs. Wainright (372
US 335), Escubedo vs. Illinois (378 US 478), which guaranteed the accused under custodial
investigation his rights to remain silent and to counsel and to be informed of such rights as even
as it protects him against the use of force or intimidation to extort confession from him. These
rights are not found in the American Bill of Rights. These rights are now institutionalized in
Section 20, Article IV of the 1973 Constitution. Only the peace-and-order adherents were critical
of the activism of the American Supreme Court led by Chief Justice Earl Warren.
Even the definition of Identical offenses for purposes of the double jeopardy provision was
developed by American judicial decisions, not by amendment to the Bill of Rights on double
jeopardy (see Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these judicial
decisions have been re-stated in Section 7 of Rule 117 of the 1985 Rules on Criminal Procedure,
as well as in Section 9 of Rule 117 of the 1964 Revised Rules of Court. In both provisions, the
second offense is the same as the first offense if the second offense is an attempt to commit the
first or frustration thereof or necessarily includes or is necessarily included in the first offense.
The requisites of double jeopardy are not spelled out in the Bill of Rights. They were also
developed by judicial decisions in the United States and in the Philippines even before people vs.
Ylagan (58 Phil. 851-853).
Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson (163 US 537)
as securing to the Negroes equal but separate facilities, which doctrine was revoked in the case of
Brown vs. Maryland Board of Education (349 US 294), holding that the equal protection clause
means that the Negroes are entitled to attend the same schools attended by the whites-equal
facilities in the same school-which was extended to public parks and public buses.
De-segregation, not segregation, is now the governing principle.
Among other examples, the due process clause was interpreted in the case of People vs. Pomar (46
Phil. 440) by a conservative, capitalistic court to invalidate a law granting maternity leave to
working women-according primacy to property rights over human rights. The case of People vs.
Pomar is no longer the rule.
As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937, 949), Justice
Holmes had been railing against the conservatism of Judges perverting the guarantee of due
process to protect property rights as against human rights or social justice for the working man.
The law fixing maximum hours of labor was invalidated. Justice Holmes was vindicated finally in
1936 in the case of West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the
American Supreme Court upheld the rights of workers to social justice in the form of guaranteed
minimum wage for women and minors, working hours not exceeding eight (8) daily, and maternity
leave for women employees.
The power of judicial review and the principle of separation of powers as well as the rule on
political questions have been evolved and grafted into the American Constitution by judicial
decisions (Marbury vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L. ed. 1385; Springer
vs. Government, 277 US 210-212, 72 L. ed. 852, 853).
It is noteworthy that Justice Black, who seems to be against judicial legislation, penned a separate
concurring opinion in the case of Coleman vs. Miller, supra, affirming the doctrine of political
question as beyond the ambit of judicial review. There is nothing in both the American and
Philippine Constitutions expressly providing that the power of the courts is limited by the principle
of separation of powers and the doctrine on political questions. There are numerous cases in
Philippine jurisprudence applying the doctrines of separation of powers and political questions and
invoking American precedents.
Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions expressly vest
in the Supreme Court the power to review the validity or constitutionality of any legislative
enactment or executive act.
WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY REVERSED
AND SET ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS.
SHOULD A GREATER AMOUNT OF DAMAGES BE DECREED IN FAVOR OF HEREIN
PETITIONERS, THE PAYMENTS ALREADY MADE TO THEM PURSUANT TO THE
WORKMEN'S COMPENSATION ACT SHALL BE DEDUCTED. NO COSTS.
SO ORDERED.