G.R. No.

L-29745 June 4, 1973

appellants, were found dead and several others injured on account of the
stampede.

MERCEDES M. TEAGUE, petitioner, vs. ELENA FERNANDEZ, et al., respondent.

xxx xxx xxx
MAKALINTAL, J.:
The facts are stated in the decision of the Court of Appeals as follows:
The Realistic Institute, admittedly owned and operated by defendant-appellee
Mercedes M. Teague was a vocational school for hair and beauty culture
situated on the second floor of the Gil-Armi Building, a two-storey, semiconcrete edifice (Exhs. "C", "C-1" to "C-5" and "4") located at the corner of
Quezon Boulevard and Soler Street, Quiapo, Manila. The said second floor
was unpartitioned, had a total area of about 400 square meters, and although
it had only one stairway, of about 1.50 meters in width, it had eight windows,
each of which was provided with two fire-escape ladders (Exh. "4"), and the
presence of each of said fire-exits was indicated on the wall (Exh. "5").
At about four o'clock in the afternoon of October 24, 1955, a fire broke out
in a store for surplus materials located about ten meters away from the
institute. Soler Street lay between that store and the institute. Upon seeing
the fire, some of the students in the Realistic Institute shouted 'Fire! Fire!' and
thereafter, a panic ensued. Four instructresses and six assistant instructress of
the Institute were present and they, together with the registrar, tried to calm
down the students, who numbered about 180 at the time, telling them not to
be afraid because the Gil-Armi Building would not get burned as it is made of
concrete, and that the fire was anyway, across the street. They told the
students not to rush out but just to go down the stairway two by two, or to
use the fire-escapes. Mrs. Justitia Prieto, one of the instructresses, took to the
microphone so as to convey to the students the above admonitions more
effectively, and she even slapped three students in order to quiet them down.
Miss Frino Meliton, the registrar, whose desk was near the stairway, stood up
and tried with outstretched arms to stop the students from rushing and
pushing their way to the stairs. The panic, however, could not be subdued
and the students, with the exception of the few who made use of fire-escapes
kept on rushing and pushing their way through the stairs, thereby causing
stampede therein.
Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was
over, four students, including Lourdes Fernandez, a sister of plaintiffs-

The injuries sustained by Lourdes Fernandez consisted of lacerations in both

eyes and on the upper lip, contused abrasions in different parts of the body,
internal hemorrhage and fractures in the second and third right ribs. The
cause of death, according to the autopsy report, was "Shock due to traumatic
fractures of the ribs with perinephric hematoma and lacerations of the
conjunctiva of both eyes."
The deceased's five brothers and sisters filed an action for damages against
Mercedes M. Teague as owner and operator of Realistic Institute. The Court of
First Instance of Manila found for the defendant and dismissed the case. The
plaintiffs thereupon appealed to the Court of Appeals, which by a divided vote
of 3 to 2 (a special division of five members having been constituted)
rendered a judgment of reversal and sentenced the defendant to pay
damages to the plaintiffs in the sum of P11,000.00, plus interest at the legal
rate from the date the complaint was filed.
The case came up to this Court on a petition for review filed by the
defendant below.
The decision of the appellate court declared that the defendant, hereinafter to
be referred to as the petitioner, was negligent and that such negligence was
the proximate cause of the death of Lourdes Fernandez. This finding of
negligence is based primarily on the fact that the provision of Section 491 Of
the Revised Ordinances of the City of Manila had not been complied with in
connection with the construction and use of the Gil-Armi building where the
petitioner's vocational school was housed. This provision reads as follows:
Sec. 491. Firepro of partitions, exits and stairways. ... All buildings and
separate sections of buildings or buildings otherwise known as accessorias
having less than three stories, having one or more persons domiciled therein
either temporarily or permanently, and all public or quasi-public buildings
having less than three stories, such as hospitals, sanitarium, schools,
reformatories, places of human detention, assembly halls, clubs, restaurants or
panciterias, and the like, shall be provided with at least two unobstructed
stairways of not less than one meter and twenty centimeters in width and an
inclination of not less than forty degrees from the perpendicular, in case of

large buildings more than two stairways shall likewise be provided when
required by the chief of the fire department, said stairways shall be placed as
far apart as possible.
The alleged violation of the ordinance above-quoted consisted in the fact that
the second storey of the Gil-Armi building had only one stairway, 1.5 meters
wide, instead of two of at least 1.2 meters each, although at the time of the
fire the owner of the building had a second stairway under construction.
In ruling that such non-compliance with the City Ordinances was an act of
negligence and that such negligence was the proximate cause of the death of
Lourdes Fernandez, reliance is based on a number of authorities in the
American jurisdiction, thus: .
The mere fact of violation of a statute is not sufficient basis for an inference
that
such
violation
was
the
proximate
cause
of
the
injury
complained. However, if the very injury has happened which was intended to

be prevented by the statute, it has been held that violation of the statute will
be deemed to be proximate cause of the injury. (65 C.J.S. 1156).

The generally accepted view is that violation of a statutory duty constitutes

negligence, negligence as a matter or law, or, according to the decisions on
the question, negligence per se for the reason that non-observance of what
the legislature has prescribed as a suitable precaution is failure to observe
that care which an ordinarily prudent man would observe, and, when the state
regards certain acts as so liable to injure others as to justify their absolute
prohibition, doing the forbidden act is a breach of duty with respect to those
who may be injured thereby; or, as it has been otherwise expressed, when the
standard of care is fixed by law, failure to conform to such standard is
negligence, negligence per se or negligence in and of itself, in the absence of
a legal excuse. According to this view it is immaterial, where a statute has

been violated, whether the act or omission constituting such violation would
have been regarded as negligence in the absence of any statute on the
subject or whether there was, as a matter of fact, any reason to anticipate
that injury would result from such violation. .... (65 C.J.S. pp. 623-628).

But the existence of an ordinance changes the situation. If a driver causes an

accident by exceeding the speed limit, for example, do not inquire whether his
prohibited conduct was unreasonably dangerous. It is enough that it was
prohibited. Violation of an ordinance intended to promote safety is negligence.
If by creating the hazard which the ordinance was intended to avoid it brings

about the harm which the ordinance was intended to prevent, it is a legal
cause of the harm. This comes only to saying that in such circumstances the
law has no reason to ignore the causal relation which obviously exists in fact.
The law has excellent reason to recognize it, since it is the very relation
which the makers of the ordinance anticipated. This court has applied these
principles to speed limits and other regulations of the manner of driving. (Ross
vs. Hartman, 139 Fed. 2d 14 at 15).
... However, the fact that other happenings causing or
contributing toward an injury intervened between the
violation of a statute or ordinance and the injury does not
necessarily make the result so remote that no action can
be maintained. The test is to be found not in the number
of intervening events or agents, but in their character and
in the natural and probable connection between the wrong
done and the injurious consequence. The general principle
is that the violation of a statute or ordinance is not
rendered remote as the cause of an injury by the
intervention of another agency if the occurrence of the
accident, in the manner in which it happened, was the very
thing which the statute or ordinance was intended to
Prevent. (38 Am Jur 841).
The petitioner has raised a number of issues. The first is that Section 491 of
the Revised Ordinances of the City of Manila refers to public buildings and
hence did not apply to the Gil-Armi building which was of private ownership. It
will be noted from the text of the ordinance, however, that it is not ownership
which determines the character of buildings subject to its requirements, but
rather the use or the purpose for which a particular building is utilized. Thus
the same may be privately owned, but if it is devoted to any one of the
purposes mentioned in the ordinance for instance as a school, which the
Realistic Institute precisely was then the building is within the coverage of
the ordinance. Indeed the requirement that such a building should have two
(2) separate stairways instead of only one (1) has no relevance or reasonable
relation to the fact of ownership, but does have such relation to the use or
purpose for which the building is devoted.
It is next contended that the obligation to comply with the ordinance devolved
upon the owners of the building and therefore it is they and not the
petitioner herein, who is a mere lessee, who should be liable for the violation.
The contention ignores the fact that it was the use of the building for school

purposes which brought the same within the coverage of the ordinance; and it
was the petitioner and not the owners who was responsible for such use.
The next issue, indeed the basic one, raised by the petitioner is whether or
not the failure to comply with the requirement of the ordinance was the
proximate cause of the death of Lourdes Fernandez. The case of Villanueva
Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is
cited in support of the contention that such failure was not the proximate
cause. It is there stated by this Court:
The proximate legal cause is that acting first and producing
the injury, either immediately or by settling other events in
motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its
immediate predecessor, the final event in the chain
immediately affecting the injury as a natural and probable
result of the cause which first acted, under such
circumstances that the person responsible for the first event
should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result
therefrom.
Having in view the decision just quoted, the petitioner relates the chain of
events that resulted in the death of Lourdes Fernandez as follows: (1)
violation of ordinance; (2) fire at a neighboring place; (3) shouts of "Fire!,
Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and death.
As thus projected the violation of the ordinance, it is argued, was only a
remote cause, if at all, and cannot be the basis of liability since there
intervened a number of independent causes which produced the injury
complained of. A statement of the doctrine relied upon is found in Manila
Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court,
citing Corpus Juris said:
A prior and remote cause cannot be made the basis of an
action if such remote cause did nothing more than furnish
the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such
prior or remote cause and the injury a distinct, successive
unrelated, and efficient cause of the injury, even though

such injury would not have happened but for such

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

violation, however, as an act of negligence which gave rise to liability, was

sufficiently comprehended within paragraph 7 of the complaint, which reads: .

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno
Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan
located at about 100 meters from the tobacco seedbed of Marcelo Javier. He

Par. 7. That the death of Lourdes Fernandez was due to

the gross negligence of the defendant who failed to
exercise due care and diligence for the safety of its
students in not providing the building with adequate fire
exits and in not practicing fire drill exercises to avoid the
stampede, aside from the fact that the defendant did not
have a permit to use the building as a school-house.

found the place where he stored his palay flooded with water coming from
the irrigation canal nearby which had overflowed. Urbano went to the elevated
portion of the canal to see what happened and there he saw Marcelo Javier
and Emilio Erfe cutting grass. He asked them who was responsible for the
opening of the irrigation canal and Javier admitted that he was the one.
Urbano then got angry and demanded that Javier pay for his soaked palay. A
quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long,

The decision appealed from is affirmed, with costs.

including the handle, by 2 inches wide) and hacked Javier hitting him on the
right palm of his hand, which was used in parrying the bolo hack. Javier who
was then unarmed ran away from Urbano but was overtaken by Urbano who
hacked him again hitting Javier on the left leg with the back portion of said
bolo, causing a swelling on said leg. When Urbano tried to hack and inflict
further injury, his daughter embraced and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier
to his house about 50 meters away from where the incident happened. Emilio
then went to the house of Barangay Captain Menardo Soliven but not finding
him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the
advice of Solis, the Erfes together with Javier went to the police station of
San Fabian to report the incident. As suggested by Corporal Torio, Javier was
brought to a physician. The group went to Dr. Guillermo Padilla, rural health

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT
AND PEOPLE OF THE PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of the then Intermediate Appellate
Court which affirmed the decision of the then Circuit Criminal Court of
Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable
doubt of the crime of homicide.
The records disclose the following facts of the case.

physician of San Fabian, who did not attend to Javier but instead suggested
that they go to Dr. Mario Meneses because Padilla had no available medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to
Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla
issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) which
reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20 years
of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on
October 23, 1980 and found the following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar
prominence, right.
As to my observation the incapacitation is from (7-9) days period. This wound
was presented to me only for medico-legal examination, as it was already
treated by the other doctor. (p. 88, Original Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle
their differences. Urbano promised to pay P700.00 for the medical expenses
of Javier. Hence, on October 27, 1980, the two accompanied by Solis
appeared before the San Fabian Police to formalize their amicable settlement.

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm.

Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

02 inhalation administered. Ambo bag resuscita-

xxx xxx xxx

tion and cardiac massage done but to no avail.

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties

Pronounced dead by Dra. Cabugao at 4:18 P.M.

appeared before this Station accompanied by brgy. councilman Felipe Solis

and settled their case amicably, for they are neighbors and close relatives to
each other. Marcelo Javier accepted and granted forgiveness to Filomeno
Urbano who shoulder (sic) all the expenses in his medical treatment, and
promising to him and to this Office that this will never be repeated anymore
and not to harbour any grudge against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3,
1980, the additional P300.00 was given to Javier at Urbano's house in the
presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth
General Hospital in a very serious condition. When admitted to the hospital,
Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who
personally attended to Javier found that the latter's serious condition was
caused by tetanus toxin. He noticed the presence of a healing wound in
Javier's palm which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The

PMC done and cadaver brought home by relatives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with the
crime of homicide before the then Circuit Criminal Court of Dagupan City,
Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court
found Urbano guilty as charged. He was sentenced to suffer an indeterminate
prison term of from TWELVE (12) YEARS of prision mayor, as minimum to
SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion

temporal, as maximum, together with the accessories of the law, to indemnify

the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs. He was
ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of
the decision, in view of the nature of his penalty.

medical findings of Dr. Exconde are as follows:

The then Intermediate Appellate Court affirmed the conviction of Urbano on

Date Diagnosis

P30,000.00 with costs against the appellant.

appeal but raised the award of indemnity to the heirs of the deceased to

The appellant filed a motion for reconsideration and/or new trial. The motion

that which he intended ..." Pursuant to this provision "an accused is criminally

for new trial was based on an affidavit of Barangay Captain Menardo Soliven

responsible for acts committed by him in violation of law and for all the

(Annex "A") which states:

natural and logical consequences resulting therefrom." (People v. Cardenas, 56

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian,

SCRA 631).

Pangasinan, and up to the present having been re-elected to such position in

The record is clear that Marcelo Javier was hacked by the petitioner who

the last barangay elections on May 17, 1982;

used a bolo as a result of which Javier suffered a 2-inch incised wound on

That sometime in the first week of November, 1980, there was a typhoon that
swept Pangasinan and other places of Central Luzon including San Fabian, a
town of said province;
That during the typhoon, the sluice or control gates of the Bued irrigation
dam which irrigates the ricefields of San Fabian were closed and/or controlled
so much so that water and its flow to the canals and ditches were regulated
and reduced;
That due to the locking of the sluice or control gates of the dam leading to
the canals and ditches which will bring water to the ricefields, the water in
said canals and ditches became shallow which was suitable for catching
mudfishes;
That after the storm, I conducted a personal survey in the area affected, with
my secretary Perfecto Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late
Marcelo Javier catching fish in the shallow irrigation canals with some
companions;
That few days there after,or on November l5, l980, I came to know that said
Marcelo Javier died of tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.

his right palm; that on November 14, 1981 which was the 22nd day after the
incident, Javier was rushed to the hospital in a very serious condition and
that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the
natural and logical consequence of Urbano's unlawful act. Hence, he was
declared responsible for Javier's death. Thus, the appellate court said:
The claim of appellant that there was an efficient cause which supervened
from the time the deceased was wounded to the time of his death, which
covers a period of 23 days does not deserve serious consideration. True, that
the deceased did not die right away from his wound, but the cause of his
death was due to said wound which was inflicted by the appellant. Said
wound which was in the process of healing got infected with tetanus which
ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that the
victim suffered lockjaw because of the infection of the wound with tetanus.
And there is no other way by which he could be infected with tetanus except
through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the
proximate cause of the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an accused is liable for
all the consequences of his unlawful act. (Article 4, par. 1, R.P.C. People v.
Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418).
Appellant's allegation that the proximate cause of the victim's death was due

In a resolution dated July 16, 1986, we gave due course to the petition.

to his own negligence in going back to work without his wound being properly

The case involves the application of Article 4 of the Revised Penal Code

first week of November, 1980, is an afterthought, and a desperate attempt by

which provides that "Criminal liability shall be incurred: (1) By any person

appellant to wiggle out of the predicament he found himself in. If the wound

committing a felony (delito) although the wrongful act done be different from

healed, and lately, that he went to catch fish in dirty irrigation canals in the

had not yet healed, it is impossible to conceive that the deceased would be

The issue, therefore, hinges on whether or not there was an efficient

reckless enough to work with a disabled hand. (pp. 20-21, Rollo)

intervening cause from the time Javier was wounded until his death which

The petitioner reiterates his position that the proximate cause of the death of
Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found
no tetanus in the injury, and that Javier got infected with tetanus when after
two weeks he returned to his farm and tended his tobacco plants with his
bare hands exposing the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by
Urbano was infected with tetanus at the time of the infliction of the wound.
The evidence merely confirms that the wound, which was already healing at
the time Javier suffered the symptoms of the fatal ailment, somehow got
infected with tetanus However, as to when the wound was infected is not

would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the

appearance of unmistakable symptoms, ranges from 2 to 56 days. However,

over 80 percent of patients become symptomatic within 14 days. A short
incubation period indicates severe disease, and when symptoms occur within 2
or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such

as restlessness, irritability, and

headache

but

are

encountered

occasionally,

the

commonest

presenting

clear from the record.

complaints are pain and stiffness in the jaw, abdomen, or back and difficulty

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the

often complain of difficulty opening their mouths. In fact, trismus in the

following definition of proximate cause:

commonest manifestation of tetanus and is responsible for the familiar

swallowing. As the progresses, stiffness gives way to rigidity, and patients

descriptive name of lockjaw. As more muscles are involved, rigidity becomes

xxx xxx xxx

generalized, and sustained contractions called risus sardonicus. The intensity

... A satisfactory definition of proximate cause is found in Volume 38, pages

695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief.
It is as follows:

efficient intervening cause, produces the injury, and without which the result
would not have occurred."And more comprehensively, "the proximate legal
cause is that acting first and producing the injury, either immediately or by
setting other events in motion, all constituting a natural and continuous chain
events,

each

patients, only local signs and symptoms develop in the region of the injury. In
the vast majority, however, most muscles are involved to some degree, and
the signs and symptoms encountered depend upon the major muscle groups

... "that cause, which, in natural and continuous sequence, unbroken by any

of

and sequence of muscle involvement is quite variable. In a small proportion of

having

a close

causal

connection

with

its

immediate

predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an
ordinarily prudent and intelligent person, have reasonable ground to expect at
the moment of his act or default that an injury to some person might
probably result therefrom." (at pp. 185-186)

affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an

interval referred to as the onset time. As in the case of the incubation period,
a short onset time is associated with a poor prognosis. Spasms are caused
by sudden intensification of afferent stimuli arising in the periphery, which
increases rigidity and causes simultaneous and excessive contraction of
muscles and their antagonists. Spasms may be both painful and dangerous. As
the disease progresses, minimal or inapparent stimuli produce more intense
and longer lasting spasms with increasing frequency. Respiration may be
impaired by laryngospasm or tonic contraction of respiratory muscles which
prevent adequate ventilation. Hypoxia may then lead to irreversible central
nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and

an onset time of more than 6 days. Trismus is usually present, but dysphagia

distinct possibility that the infection of the wound by tetanus was an efficient

is absent and generalized spasms are brief and mild. Moderately severe

of his death. The infection was, therefore, distinct and foreign to the crime.

tetanus has a somewhat shorter incubation period and onset time; trismus is

(People v. Rellin, 77 Phil. 1038).

marked, dysphagia and generalized rigidity are present, but ventilation remains
adequate even during spasms. The criteria for severe tetanus include a short
incubation time, and an onset time of 72 hrs., or less, severe trismus,
dysphagia and rigidity and frequent prolonged, generalized convulsive spasms.

intervening cause later or between the time Javier was wounded to the time

Doubts

are

present.

There

is

likelihood

that

the

wound

was

but

the remote cause and its subsequent infection, for failure to take necessary
precautions, with tetanus may have been the proximate cause of Javier's

1004-1005;

death with which the petitioner had nothing to do. As we ruled in Manila

Emphasis supplied)

Electric Co. v. Remoquillo, et al. (99 Phil. 118).

Therefore, medically speaking, the reaction to tetanus found inside a man's

"A prior and remote cause cannot be made the be of an action if such

(Harrison's

Principle

of

Internal

Medicine,

1983

Edition,

pp.

body depends on the incubation period of the disease.

remote cause did nothing more than furnish the condition or give rise to the

In the case at bar, Javier suffered a 2-inch incised wound on his right palm

such prior or remote cause and the injury a distinct, successive, unrelated,

when he parried the bolo which Urbano used in hacking him. This incident

and efficient cause of the injury, even though such injury would not have

took place on October 23, 1980. After 22 days, or on November 14, 1980, he

happened but for such condition or occasion. If no danger existed in the

suffered the symptoms of tetanus, like lockjaw and muscle spasms. The

condition except because of the independent cause, such condition was not

following day, November 15, 1980, he died.

the proximate cause. And if an independent negligent act or defective

If, therefore, the wound of Javier inflicted by the appellant was already
infected by tetanus germs at the time, it is more medically probable that
Javier should have been infected with only a mild cause of tetanus because

occasion by which the injury was made possible, if there intervened between

condition sets into operation the instances which result in injury because of
the prior defective condition, such subsequent act or condition is the
proximate cause." (45 C.J. pp. 931-932). (at p. 125)

the symptoms of tetanus appeared on the 22nd day after the hacking

It strains the judicial mind to allow a clear aggressor to go scot free of

incident or more than 14 days after the infliction of the wound. Therefore,

criminal liability. At the very least, the records show he is guilty of inflicting

the onset time should have been more than six days. Javier, however, died on

slight physical injuries. However, the petitioner's criminal liability in this respect

the second day from the onset time. The more credible conclusion is that at

was wiped out by the victim's own act. After the hacking incident, Urbano and

the time Javier's wound was inflicted by the appellant, the severe form of

Javier used the facilities of barangay mediators to effect a compromise

tetanus that killed him was not yet present. Consequently, Javier's wound

agreement where Javier forgave Urbano while Urbano defrayed the medical

could have been infected with tetanus after the hacking incident. Considering

expenses of Javier. This settlement of minor offenses is allowed under the

the circumstance surrounding Javier's death, his wound could have been

express provisions of Presidential Decree G.R. No. 1508, Section 2(3). (See also

infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.

People v. Caruncho, 127 SCRA 16).

The rule is that the death of the victim must be the direct, natural, and

We must stress, however, that our discussion of proximate cause and remote

logical consequence of the wounds inflicted upon him by the accused . (People

cause is limited to the criminal aspects of this rather unusual case. It does

v. Cardenas, supra) And since we are dealing with a criminal conviction, the

not necessarily follow that the petitioner is also free of civil liability. The well-

proof that the accused caused the victim's death must convince a rational

settled doctrine is that a person, while not criminally liable, may still be civilly

mind beyond reasonable doubt. The medical findings, however, lead us to a

liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R.

offense should be proved beyond reasonable doubt. But for the purpose of

No. 74041, July 29, 1987), we said:

indemnity the complaining party, why should the offense also be proved
beyond reasonable doubt? Is not the invasion or violation of every private

xxx xxx xxx

right to be proved only by a preponderance of evidence? Is the right of the

... While the guilt of the accused in a criminal prosecution must be established
beyond reasonable doubt, only a preponderance of evidence is required in a
civil action for damages. (Article 29, Civil Code). The judgment of acquittal
extinguishes the civil liability of the accused only when it includes a
declaration that the facts from which the civil liability might arise did not
exist. (Padilla v. Court of Appeals, 129 SCRA 559).

that the acquittal of the accused on the ground that his guilt has not been
proved beyond reasonable doubt does not necessarily exempt him from civil
liability for the same act or omission, has been explained by the Code
Commission as follows:

him from civil liability is one of the most serious flaws in the Philippine legal
system. It has given use to numberless instances of miscarriage of justice,
where the acquittal was due to a reasonable doubt in the mind of the court
as to the guilt of the accused. The reasoning followed is that inasmuch as
the civil responsibility is derived from the criminal offense, when the latter is
not proved, civil liability cannot be demanded.

under discussion. It will correct a serious defect in our law. It will close up an
inexhaustible source of injustice-a cause for disillusionment on the part of the

The respondent court increased the P12,000.00 indemnification imposed by

the trial court to P30,000.00. However, since the indemnification was based
solely on the finding of guilt beyond reasonable doubt in the homicide case,
the civil liability of the petitioner was not thoroughly examined. This aspect of

deplorable consequences. Such reasoning fails to draw a clear line of

demarcation between criminal liability and civil responsibility, and to determine
the logical result of the distinction. The two liabilities are separate and distinct
from each other. One affects the social order and the other, private rights.
One is for the punishment or correction of the offender while the other is for
suffered

by

the

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision

of the then Intermediate Appellate Court, now Court of Appeals, is REVERSED
and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide.
Costs de oficio.
SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin and,Cortes, JJ., concur.

This is one of those causes where confused thinking leads to unfortunate and

damages

"For these reasons, the Commission recommends the adoption of the reform

the case calls for fuller development if the heirs of the victim are so minded.

The old rule that the acquittal of the accused in a criminal case also releases

of

by the criminal law?

innumerable persons injured or wronged."

The reason for the provisions of article 29 of the Civil Code, which provides

reparation

aggrieved person any less private because the wrongful act is also punishable

aggrieved

party.

The

two

responsibilities are so different from each other that article 1813 of the
present (Spanish) Civil Code reads thus: "There may be a compromise upon

G.R. No. L-15688

REMIGIO

RODRIGUEZ,

ET

AL., plaintiffs-appellees,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

Orense
&
Domingo Imperial for appellees.

the civil action arising from a crime; but the public action for the imposition
of the legal penalty shall not thereby be extinguished." It is just and proper
that, for the purposes of the imprisonment of or fine upon the accused, the

November 19, 1921

STREET, J.:

Vera

for

appellant.

This action was instituted jointly by Remigio Rodrigueza and three others in

The sole ground upon which the defense is rested is that the house of

the Court of First Instance of the Province of Albay to recover a sum of

Remigio Rodrigueza stood partly within the limits of the land owned by the

money of the Manila Railroad Company as damages resulting from a fire

defendant company, though exactly how far away from the company's track

kindled by sparks from a locomotive engine under the circumstances set out

does not appear. It further appears that, after the railroad track was laid, the

below. Upon hearing the cause upon the complaint, answer and an agreed

company notified Rodrigueza to get his house off the land of the company

statement of facts, the trial judge rendered judgment against the defendant

and to remove it from its exposed position. Rodrigueza did not comply with

company in favor of the plaintiffs and awarded to them the following sums

this suggestion, though he promised to put an iron roof on his house, which

respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000; (2) to

he never did. Instead, he changed the materials of the main roof to nipa,

Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to Perfecta

leaving the kitchen and media-aguas covered with cogon. Upon this fact it is

Losantas, P150; all with lawful interest from March 21, 1919. From this

contended for the defense that there was contributory negligence on the part

judgment the defendant appealed.

of Remigio Rodrigueza in having his house partly on the premises of the

The facts as appearing from the agreed statement, in relation with the
complaint, are to the effect that the defendant Railroad Company operates a
line through the district of Daraga in the municipality of Albay; that on

Railroad Company, and that for this reason the company is not liable. This
position is in our opinion untenable for the reasons which we shall proceed to
state.

January 29, 1918, as one of its trains passed over said line, a great quantity

In the first place, it will be noted that the fact suggested as constituting a

of sparks were emitted from the smokestack of the locomotive, and fire was

defense to this action could not in any view of the case operate as a bar to

thereby communicated to four houses nearby belonging to the four plaintiffs

recovery by the three plaintiffs other than Remigio Rodrigueza, even assuming

respectively, and the same were entirely consumed. All of these houses were

that the fire was first communicated to his house; for said three plaintiffs are

of light construction with the exception of the house of Remigio Rodrigueza,

in nowise implicated in the act which supposedly constitutes the defense. In

which was of strong materials, though the roof was covered with nipa and

this connection it will be observed that the right of action of each of these

cogon. The fire occurred immediately after the passage of the train, and a

plaintiffs is totally distinct from that of his co-plaintiff, so much so that each

strong wind was blowing at the time. It does not appear either in the

might have sued separately, and the defendant if it had seen fit to do so,

complaint or in the agreed statement whose house caught fire first, though it

might in this case have demurred successfully to the complaint for misjoinder

is stated in the appellant's brief that the fire was first communicated to the

of parties plaintiff. The fact that the several rights of action of the different

house of Remigio Rodrigueza, from whence it spread to the others.

plaintiffs arose simultaneously out of one act of the defendant is not

In the fourth paragraph of the complaint which is admitted to be true it

is alleged that the defendant Railroad Company was conspicuously negligent
in relation to the origin of said fire, in the following respects, namely, first, in
failing to exercise proper supervision over the employees in charge of the
locomotive; secondly, in allowing the locomotive which emitted these sparks to
be operated without having the smokestack protected by some device for
arresting sparks; thirdly, in using in its locomotive upon this occasion Bataan
coal, a fuel of known inferior quality which, upon combustion, produces sparks
in great quantity.

sufficient of itself to require, or even permit, the joinder of such parties as

coplaintiffs in a single action (30 Cyc., 114) if objection had been made
thereto. Domingo Gonzaga, Cristina Luna, and Perfecta Losantas are therefore
entitled to recover upon the admitted fact that this fire originated in the
negligent acts of the defendant; and the circumstance that the fire may have
been

communicated

Rodrigueza,

instead

to

their

of

having

houses

through

the

been

directly

communicated

locomotive, is immaterial. (See 38 Am. Dec., 64, 77;

house

of

Remegio
from

the

11 R. C. L., 968-971;

Kansas City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81 Pennsylvania Railroad
Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)

With respect to the case of Remegio Rodrigueza it is to be inferred that his

have removed said house in the exercise of the power of eminent domain, but

house stood upon this ground before the Railroad Company laid its line over

it elected not to do so.

this course; and at any rate there is no proof that this plaintiff had unlawfully
intruded upon the railroad's property in the act of building his house. What
really occurred undoubtedly is that the company, upon making this extension,
had acquired the land only, leaving the owner of the house free to remove it.
Hence he cannot be considered to have been a trespasser in the beginning.
Rather, he was there at the sufferance of the defendant company, and so
long as his house remained in this exposed position, he undoubtedly assumed
the risk of any loss that might have resulted from fires occasioned by the
defendant's locomotives if operated and managed with ordinary care. But he
cannot be held to have assumed the risk of any damage that might result
from the unlawful negligence acts of the defendant. Nobody is bound to
anticipate and defend himself against the possible negligence of another.
Rather he has a right to assume that the other will use the care of the
ordinary prudent man. (Philadelphia and Reading Railroad Co. vs. Hendrickson,
80 Pa. St., 182; 21 Am. Rep., 97.)
In the situation now under consideration the proximate and only cause of the
damage that occurred was the negligent act of the defendant in causing this
fire. The circumstance that Remigio Rodrigueza's house was partly on the
property of the defendant company and therefore in dangerous proximity to
passing locomotives was an antecedent condition that may in fact have made
the disaster possible, but that circumstance cannot be imputed to him as
contributory negligence destructive of his right of action, because, first, that
condition was not created by himself; secondly, because his house remained
on this ground by the toleration, and therefore with the consent of the
Railroad Company; and thirdly, because even supposing the house to be
improperly there, this fact would not justify the defendant in negligently
destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U. S., 454;
23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345, 350.)lawphil.net
The circumstance that the defendant company, upon planting its line near
Remigio Rodrigueza's house, had requested or directed him to remove it, did
not convert his occupancy into a trespass, or impose upon him any additional
responsibility over and above what the law itself imposes in such situation. In
this connection it must be remembered that the company could at any time

Questions similar to that now before us have been under the consideration of
American courts many times, and their decisions are found to be uniformly
favorable to recovery where the property destroyed has been placed in whole
or in part on the right of way of the railroad company with its express or
implied consent. (L. R. Martin Timber Co. vs. Great Northern Railway Co., 123
Minn., 423; Ann. Cas., 1915A, p. 496, note; Burroughs vs.Housatonic R.R. Co.,
15 Conn., 124; 38 Am. Dec., 64; 74; Southern Ry. Co. vs. Patterson, 105 Va. 6;
8 Ann. Cas., 44.) And the case for the plaintiff is apparently stronger where
the company constructs its line in proximity to a house already built and fails
to condemn it and remove it from its right of way.
From what has been said it is apparent that the judgment appealed from is in
all respect in conformity with the law, and the same is accordingly affirmed,
with costs. So ordered.

Johnson, Araullo, Avancea and Villamor, JJ., concur.

(c) Dismissing the third-party complaint;

(d) Dismissing the defendant's and third-party defendants' counterclaims for

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

JUAN F. NAKPIL & SONS, and JUAN F. NAKPIL, petitioners,

vs. THE COURT

lack of merit;

OF APPEALS, UNITED CONSTRUCTION COMPANY, INC., JUAN J. CARLOS, and

(e)

the PHILIPPINE BAR ASSOCIATION, respondents.

defendants (except Roman Ozaeta) to pay the costs in equal shares.

G.R. No. L-47863 October 3, 1986

SO ORDERED. (Record on Appeal p. 521; Rollo, L- 47851, p. 169).

THE UNITED CONSTRUCTION CO., INC., petitioner, vs. COURT OF APPEALS, ET

The dispositive portion of the decision of the Court of Appeals reads:

AL., respondents.

United

Construction

Co.,

Inc.

and

third-party

P200,000.00 in favor of plaintiff-appellant Philippine Bar Association, with

PHILIPPINE BAR ASSOCIATION, ET AL., petitioners, vs. COURT OF APPEALS, ET

AL., respondents.

interest at the legal rate from November 29, 1968 until full payment to be
paid jointly and severally by defendant United Construction Co., Inc. and third
party defendants (except Roman Ozaeta). In all other respects, the judgment
dated September 21, 1971 as modified in the December 8, 1971 Order of the

PARAS, J.:

lower court is hereby affirmed with COSTS to be paid by the defendant and

These are petitions for review on certiorari of the November 28, 1977
decision of the Court of Appeals in CA-G.R. No. 51771-R modifying the
decision of the Court of First Instance of Manila, Branch V, in Civil Case No.
74958 dated September 21, 1971 as modified by the Order of the lower
court dated December 8, 1971. The Court of Appeals in modifying the
decision of the lower court included an award of an additional amount of
P200,000.00 to the Philippine Bar Association to be paid jointly and severally
by the defendant United Construction Co. and by the third-party defendants
Juan F. Nakpil and Sons and Juan F. Nakpil.

WHEREFORE, judgment is hereby rendered:

defendant

United

Construction

third party defendant (except Roman Ozaeta) in equal shares.

SO ORDERED.
Petitioners Juan F. Nakpil & Sons in L-47851 and United Construction Co., Inc.
and Juan J. Carlos in L-47863 seek the reversal of the decision of the Court
of Appeals, among other things, for exoneration from liability while petitioner
Philippine Bar Association in L-47896 seeks the modification of aforesaid
decision to obtain an award of P1,830,000.00 for the loss of the PBA building
plus four (4) times such amount as damages resulting in increased cost of

The dispositive portion of the modified decision of the lower court reads:

Ordering

defendant

WHEREFORE, the judgment appealed from is modified to include an award of

G.R. No. L-47896 October 3, 1986

(a)

Ordering

the

building,

P100,000.00

as

exemplary

damages;

and

P100,000.00

as

attorney's fees.
These petitions arising from the same case filed in the Court of First Instance

Co.,

Inc.

and

third-party

defendants (except Roman Ozaeta) to pay the plaintiff, jointly and severally,
the sum of P989,335.68 with interest at the legal rate from November 29,
1968, the date of the filing of the complaint until full payment;
(b) Dismissing the complaint with respect to defendant Juan J. Carlos;

of Manila were consolidated by this Court in the resolution of May 10, 1978
requiring the respective respondents to comment. (Rollo, L-47851, p. 172).
The facts as found by the lower court (Decision, C.C. No. 74958; Record on
Appeal, pp. 269-348; pp. 520-521; Rollo, L-47851, p. 169) and affirmed by the
Court of Appeals are as follows:

The

plaintiff,

Philippine

Bar

Association,

civic-non-profit

association,

incorporated under the Corporation Law, decided to construct an office

building on its 840 square meters lot located at the comer of Aduana and
Arzobispo Streets, Intramuros, Manila. The construction was undertaken by the
United Construction, Inc. on an "administration" basis, on the suggestion of
Juan J. Carlos, the president and general manager of said corporation. The
proposal was approved by plaintiff's board of directors and signed by its
president Roman Ozaeta, a third-party defendant in this case. The plans and
specifications

for

the

building

were

prepared

by

the

other

third-party

plaintiff need not amend its complaint by including the said Juan F. Nakpil &
Sons and Juan F. Nakpil personally as parties defendant.
2. That in the event (unexpected by the undersigned) that the Court should
find after the trial that the above-named defendants Juan J. Carlos and
United Construction Co., Inc. are free from any blame and liability for the
collapse of the PBA Building, and should further find that the collapse of said
building was due to defects and/or inadequacy of the plans, designs, and
specifications p by the third-party defendants, or in the event that the Court

defendants Juan F. Nakpil & Sons. The building was completed in June, 1966.

may find Juan F. Nakpil and Sons and/or Juan F. Nakpil contributorily

In the early morning of August 2, 1968 an unusually strong earthquake hit

judgment may be rendered in whole or in part. as the case may be, against

Manila and its environs and the building in question sustained major damage.

Juan F. Nakpil & Sons and/or Juan F. Nakpil in favor of the plaintiff to all

The front columns of the building buckled, causing the building to tilt forward

intents and purposes as if plaintiff's complaint has been duly amended by

dangerously. The tenants vacated the building in view of its precarious

including the said Juan F. Nakpil & Sons and Juan F. Nakpil as parties

condition. As a temporary remedial measure, the building was shored up by

defendant and by alleging causes of action against them including, among

United Construction, Inc. at the cost of P13,661.28.

others, the defects or inadequacy of the plans, designs, and specifications

On November 29, 1968, the plaintiff commenced this action for the recovery
of damages arising from the partial collapse of the building against United

negligent or in any way jointly and solidarily liable with the defendants,

prepared by them and/or failure in the performance of their contract with

plaintiff.

Construction, Inc. and its President and General Manager Juan J. Carlos as

3. Both parties hereby jointly petition this Honorable Court to approve this

defendants. Plaintiff alleges that the collapse of the building was accused by

stipulation. (Record on Appeal, pp. 274-275; Rollo, L-47851,p.169).

defects in the construction, the failure of the contractors to follow plans and
specifications and violations by the defendants of the terms of the contract.

Upon the issues being joined, a pre-trial was conducted on March 7, 1969,

Defendants in turn filed a third-party complaint against the architects who

involved in the case to a Commissioner. Mr. Andres O. Hizon, who was

prepared the plans and specifications, alleging in essence that the collapse of

ultimately appointed by the trial court, assumed his office as Commissioner,

the building was due to the defects in the said plans and specifications.

charged with the duty to try the following issues:

Roman Ozaeta, the then president of the plaintiff Bar Association was
included as a third-party defendant for damages for having included Juan J.

during which among others, the parties agreed to refer the technical issues

1. Whether the damage sustained by the PBA building during the August 2,

Carlos, President of the United Construction Co., Inc. as party defendant.

1968 earthquake had been caused, directly or indirectly, by:

On March 3, 1969, the plaintiff and third-party defendants Juan F. Nakpil &

(a) The inadequacies or defects in the plans and specifications prepared by

Sons and Juan F. Nakpil presented a written stipulation which reads:

third-party defendants;

1. That in relation to defendants' answer with counterclaims and third- party

(b) The deviations, if any, made by the defendants from said plans and

complaints and the third-party defendants Nakpil & Sons' answer thereto, the

specifications and how said deviations contributed to the damage sustained;

(c) The alleged failure of defendants to observe the requisite quality of

the defects in the plans and specifications prepared by the third-party

materials and workmanship in the construction of the building;

defendants' architects, deviations from said plans and specifications by the

(d) The alleged failure to exercise the requisite degree of supervision expected
of the architect, the contractor and/or the owner of the building;

in the construction of subject building.

All the parties registered their objections to aforesaid findings which in turn

(f) Any other cause not herein above specified.

were answered by the Commissioner.

2. If the cause of the damage suffered by the building arose from a

combination of the above-enumerated factors, the degree or proportion in
which each individual factor contributed to the damage sustained;
3. Whether the building is now a total loss and should be completely
demolished or whether it may still be repaired and restored to a tenantable
condition. In the latter case, the determination of the cost of such restoration
any remaining construction, such

workmanship in the construction of the building and of the contractors,

architects and even the owners to exercise the requisite degree of supervision

(e) An act of God or a fortuitous event; and

or repair, and the value of

defendant contractors and failure of the latter to observe the requisite

as the

foundation, which may still be utilized or availed of (Record on Appeal, pp.

275-276; Rollo, L-47851, p. 169).
Thus, the issues of this case were divided into technical issues and nontechnical issues. As aforestated the technical issues were referred to the
Commissioner. The non-technical issues were tried by the Court.
Meanwhile, plaintiff moved twice for the demolition of the building on the
ground that it may topple down in case of a strong earthquake. The motions
were opposed by the defendants and the matter was referred to the
Commissioner. Finally, on April 30, 1979 the building was authorized to be
demolished at the expense of the plaintiff, but not another earthquake of high
intensity on April 7, 1970 followed by other strong earthquakes on April 9,
and 12, 1970, caused further damage to the property. The actual demolition
was undertaken by the buyer of the damaged building. (Record on Appeal, pp.
278-280; Ibid.)
After the protracted hearings, the Commissioner eventually submitted his
report on September 25, 1970 with the findings that while the damage

The trial court agreed with the findings of the Commissioner except as to the
holding

that

the

owner

is

construction.

The

Court

sees

charged
no

with

legal

full

or

nine

supervision

contractual

basis

of

for

the
such

conclusion. (Record on Appeal, pp. 309-328; Ibid).

Thus, on September 21, 1971, the lower court rendered the assailed decision
which was modified by the Intermediate Appellate Court on November 28,
1977.
All the parties herein appealed from the decision of the Intermediate Appellate
Court. Hence, these petitions.
On May 11, 1978, the United Architects of the Philippines, the Association of
Civil Engineers, and the Philippine Institute of Architects filed with the Court a
motion to intervene as amicus curiae. They proposed to present a position
paper on the liability of architects when a building collapses and to submit
likewise a critical analysis with computations on the divergent views on the
design and plans as submitted by the experts procured by the parties. The
motion having been granted, the amicus curiaewere granted a period of 60
days within which to submit their position.
After the parties had all filed their comments, We gave due course to the
petitions in Our Resolution of July 21, 1978.
The position papers of the amicus curiae (submitted on November 24, 1978)
were duly noted.

sustained by the PBA building was caused directly by the August 2, 1968

The amicus curiae gave the opinion that the plans and specifications of the

earthquake whose magnitude was estimated at 7.3 they were also caused by

Nakpils were not defective. But the Commissioner, when asked by Us to

comment, reiterated his conclusion that the defects in the plans and

plans and specifications, or due to the defects in the ground. The contractor

specifications indeed existed.

is likewise responsible for the damage if the edifice fags within the same

Using the same authorities availed of by the amicus curiae such as the
Manila Code (Ord. No. 4131) and the 1966 Asep Code, the Commissioner
added that even if it can be proved that the defects in theconstruction alone
(and not in the plans and design) caused the damage to the building, still the

period on account of defects in the construction or the use of materials of

inferior quality furnished by him, or due to any violation of the terms of the
contract. If the engineer or architect supervises the construction, he shall be
solidarily liable with the contractor.

deficiency in the original design and jack of specific provisions against torsion

Acceptance of the building, after completion, does not imply waiver of any of

in the original plans and the overload on the ground floor columns (found by

the causes of action by reason of any defect mentioned in the preceding

an the experts including the original designer) certainly contributed to the

paragraph.

damage which occurred. (Ibid, p. 174).

The action must be brought within ten years following the collapse of the

In their respective briefs petitioners, among others, raised the following

assignments of errors: Philippine Bar Association claimed that the measure of
damages should not be limited to P1,100,000.00 as estimated cost of repairs
or to the period of six (6) months for loss of rentals while United
Construction Co., Inc. and the Nakpils claimed that it was an act of God that
caused

the

failure

of

the

building

which

should

exempt

them

from

responsibility and not the defective construction, poor workmanship, deviations

from plans and specifications and other imperfections in the case of United
Construction

Co.,

Inc.

or

the

deficiencies

in

the

design,

plans

and

specifications prepared by petitioners in the case of the Nakpils. Both UCCI

and

the

Nakpils object

to

the

payment

of

the

additional

amount

of

P200,000.00 imposed by the Court of Appeals. UCCI also claimed that it

should be reimbursed the expenses of shoring the building in the amount of
P13,661.28 while the Nakpils opposed the payment of damages jointly and
solidarity with UCCI.
The pivotal issue in this case is whether or not an act of God-an unusually
strong earthquake-which caused the failure of the building, exempts from
liability, parties who are otherwise liable because of their negligence.
The applicable law governing the rights and liabilities of the parties herein is
Article 1723 of the New Civil Code, which provides:
Art. 1723. The engineer or architect who drew up the plans and specifications
for a building is liable for damages if within fifteen years from the completion
of the structure the same should collapse by reason of a defect in those

building.
On the other hand, the general rule is that no person shall be responsible for
events which could not be foreseen or which though foreseen, were inevitable
(Article 1174, New Civil Code).
An act of God has been defined as an accident, due directly and exclusively
to natural causes without human intervention, which by no amount of
foresight, pains or care, reasonably to have been expected, could have been
prevented. (1 Corpus Juris 1174).
There is no dispute that the earthquake of August 2, 1968 is a fortuitous
event or an act of God.
To exempt the obligor from liability under Article 1174 of the Civil Code, for a
breach of an obligation due to an "act of God," the following must concur: (a)
the cause of the breach of the obligation must be independent of the will of
the debtor; (b) the event must be either unforseeable or unavoidable; (c) the
event must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (d) the debtor must be free from any
participation in, or aggravation of the injury to the creditor. (Vasquez v. Court
of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71 SCRA 423; Austria v.
Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon Stevedoring
Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of God, there
concurs a corresponding fraud, negligence, delay or violation or contravention

in any manner of the tenor of the obligation as provided for in Article 1170

Jesus, 56 SCRA 67; Cesar vs. Sandiganbayan, January 17, 1985, 134 SCRA

of the Civil Code, which results in loss or damage, the obligor cannot escape

105, 121), unless (1) the conclusion is a finding grounded entirely on

liability.

speculation, surmise and conjectures; (2) the inference made is manifestly

The principle embodied in the act of God doctrine strictly requires that the
act must be one occasioned exclusively by the violence of nature and all
human agencies are to be excluded from creating or entering into the cause
of the mischief. When the effect, the cause of which is to be considered, is
found to be in part the result of the participation of man, whether it be from
active intervention or neglect, or failure to act, the whole occurrence is
thereby humanized, as it were, and removed from the rules applicable to the
acts of God. (1 Corpus Juris, pp. 1174-1175).

act of God in producing a loss, such person is not exempt from liability by
showing that the immediate cause of the damage was the act of God. To be
exempt from liability for loss because of an act of God, he must be free from
any previous negligence or misconduct by which that loss or damage may
have been occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker
v. Milan, 49 O.G. 4379; Limpangco & Sons v. Yangco Steamship Co., 34 Phil.
594, 604; Lasam v. Smith, 45 Phil. 657).

beyond

dispute

both

Court of Appeals went beyond the issues of the case and its findings are
contrary to the admissions of both appellant and appellees (Ramos vs. PepsiCola Bottling Co., February 8, 1967, 19 SCRA 289, 291-292; Roque vs. Buan,
Oct. 31, 1967, 21 SCRA 648, 651); (7) the findings of facts of the Court of
Appeals are contrary to those of the trial court; (8) said findings of facts are
conclusions without citation of specific evidence on which they are based; (9)
briefs are not disputed by the respondents (Garcia vs. CA, June 30, 1970, 33
SCRA 622; Alsua-Bett vs. Court of Appeals, July 30, 1979, 92 SCRA 322, 366);
(10) the finding of fact of the Court of Appeals is premised on the supposed
absence of evidence and is contradicted by evidence on record (Salazar vs.
Gutierrez, May 29, 1970, 33 SCRA 243, 247; Cited in G.R. No. 66497-98, Sacay
v. Sandiganbayan, July 10, 1986).
It is evident that the case at bar does not fall under any of the exceptions
above-mentioned. On the contrary, the records show that the lower court

The negligence of the defendant and the third-party defendants petitioners

established

misapprehension of facts; (5) the findings of fact are conflicting , (6) the

the facts set forth in the petition as well as in the petitioner's main and reply

Thus it has been held that when the negligence of a person concurs with an

was

mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on

in

the

lower

court

and

in

the

Intermediate Appellate Court. Defendant United Construction Co., Inc. was

found to have made substantial deviations from the plans and specifications.
and to have failed to observe the requisite workmanship in the construction
as well as to exercise the requisite degree of supervision; while the third-party
defendants were found to have inadequacies or defects in the plans and
specifications prepared by them. As correctly assessed by both courts, the
defects in the construction and in the plans and specifications were the
proximate causes that rendered the PBA building unable to withstand the
earthquake of August 2, 1968. For this reason the defendant and third-party

spared no effort in arriving at the correct appreciation of facts by the referral

of technical issues to a Commissioner chosen by the parties whose findings
and conclusions remained convincingly unrebutted by the intervenors/amicus

curiae who were allowed to intervene in the Supreme Court.

In any event, the relevant and logical observations of the trial court as
affirmed by the Court of Appeals that "while it is not possible to state with
certainty that the building would not have collapsed were those defects not
present, the fact remains that several buildings in the same area withstood
the earthquake to which the building of the plaintiff was similarly subjected,"
cannot be ignored.

defendants cannot claim exemption from liability. (Decision, Court of Appeals,

The next issue to be resolved is the amount of damages to be awarded to

pp. 30-31).

the PBA for the partial collapse (and eventual complete collapse) of its

It is well settled that the findings of facts of the Court of Appeals are
conclusive on the parties and on this court (cases cited in Tolentino vs. de

building.

The Court of Appeals affirmed the finding of the trial court based on the

There is no question that an earthquake and other forces of nature such as

report of the Commissioner that the total amount required to repair the PBA

cyclones, drought, floods, lightning, and perils of the sea are acts of God. It

building and to restore it to tenantable condition was P900,000.00 inasmuch

does not necessarily follow, however, that specific losses and suffering

as it was not initially a total loss. However, while the trial court awarded the

resulting from the occurrence of these natural force are also acts of God. We

PBA said amount as damages, plus unrealized rental income for one-half year,

are not convinced on the basis of the evidence on record that from the

the Court of Appeals modified the amount by awarding in favor of PBA an

thousands of structures in Manila, God singled out the blameless PBA building

additional sum of P200,000.00 representing the damage suffered by the PBA

in Intramuros and around six or seven other buildings in various parts of the

building as a result of another earthquake that occurred on April 7, 1970 (L-

city for collapse or severe damage and that God alone was responsible for

47896, Vol. I, p. 92).

the damages and losses thus suffered.

The PBA in its brief insists that the proper award should be P1,830,000.00

The record is replete with evidence of defects and deficiencies in the designs

representing the total value of the building (L-47896, PBA's No. 1 Assignment

and plans, defective construction, poor workmanship, deviation from plans and

of Error, p. 19), while both the NAKPILS and UNITED question the additional

specifications and other imperfections. These deficiencies are attributable to

award of P200,000.00 in favor of the PBA (L- 47851, NAKPIL's Brief as

negligent men and not to a perfect God.

Petitioner, p. 6, UNITED's Brief as Petitioner, p. 25). The PBA further urges that
the unrealized rental income awarded to it should not be limited to a period
of one-half year but should be computed on a continuing basis at the rate of
P178,671.76 a year until the judgment for the principal amount shall have

The act-of-God arguments of the defendants- appellants and third party

defendants-appellants

presented

in

their

briefs

are

premised

on

legal

generalizations or speculations and on theological fatalism both of which

been satisfied L- 47896, PBA's No. 11 Assignment of Errors, p. 19).

ignore

The collapse of the PBA building as a result of the August 2, 1968

events and extraordinary fortuitous events leads to its argument that the

earthquake was only partial and it is undisputed that the building could then

August 2, 1968 earthquake was of such an overwhelming and destructive

still be repaired and restored to its tenantable condition. The PBA, however, in

character that by its own force and independent of the particular negligence

view of its lack of needed funding, was unable, thru no fault of its own, to

alleged, the injury would have been produced. If we follow this line of

have the building repaired. UNITED, on the other hand, spent P13,661.28 to

speculative reasoning, we will be forced to conclude that under such a

shore up the building after the August 2, 1968 earthquake (L-47896, CA

situation scores of buildings in the vicinity and in other parts of Manila would

Decision, p. 46). Because of the earthquake on April 7, 1970, the trial court

have toppled down. Following the same line of reasoning, Nakpil and Sons

after the needed consultations, authorized the total demolition of the building

alleges that the designs were adequate in accordance with pre-August 2, 1968

(L-47896, Vol. 1, pp. 53-54).

knowledge and appear inadequate only in the light of engineering information

There should be no question that the NAKPILS and UNITED are liable for the
damage resulting from the partial and eventual collapse of the PBA building
as a result of the earthquakes.
We quote with approval the following from the erudite decision penned by
Justice Hugo E. Gutierrez (now an Associate Justice of the Supreme Court)
while still an Associate Justice of the Court of Appeals:

the

plain

facts.

The

lengthy

discussion

of

United

on

ordinary

earthquakes and unusually strong earthquakes and on ordinary fortuitous

acquired after the earthquake. If this were so, hundreds of ancient buildings
which survived the earthquake better than the two-year old PBA building must
have been designed and constructed by architects and contractors whose
knowledge

and

foresight

were

unexplainably

auspicious

and

prophetic.

Fortunately, the facts on record allow a more down to earth explanation of

the collapse. The failure of the PBA building, as a unique and distinct
construction with no reference or comparison to other buildings, to weather
the severe earthquake forces was traced to design deficiencies and defective
construction, factors which are neither mysterious nor esoteric. The theological

allusion of appellant United that God acts in mysterious ways His wonders to

The Commissioner also found merit in the allegations of the defendants as to

perform impresses us to be inappropriate. The evidence reveals defects and

the physical evidence before and after the earthquake showing the inadequacy

deficiencies in design and construction. There is no mystery about these acts

of design, to wit:

of negligence. The collapse of the PBA building was no wonder performed by

God. It was a result of the imperfections in the work of the architects and the
people in the construction company. More relevant to our mind is the lesson
from the parable of the wise man in the Sermon on the Mount "which built
his house upon a rock; and the rain descended and the floods came and the
winds blew and beat upon that house; and it fen not; for it was founded
upon a rock" and of the "foolish upon the sand. And the rain descended and
man which built his house the floods came, and the winds blew, and beat
upon that house; and it fell and great was the fall of it. (St. Matthew 7: 2427)." The requirement that a building should withstand rains, floods, winds,
earthquakes, and natural forces is precisely the reason why we have
professional experts like architects, and engineers. Designs and constructions
vary under varying circumstances and conditions but the requirement to

Physical evidence before the earthquake providing (sic) inadequacy of design;

1. inadequate design was the cause of the failure of the building.
2. Sun-baffles on the two sides and in front of the building;
a. Increase the inertia forces that move the building laterally toward the
Manila Fire Department.
b. Create another stiffness imbalance.
3. The embedded 4" diameter cast iron down spout on all exterior columns
reduces the cross-sectional area of each of the columns and the strength

design and build well does not change.

thereof.

The findings of the lower Court on the cause of the collapse are more

4. Two front corners, A7 and D7 columns were very much less reinforced.

rational and accurate. Instead of laying the blame solely on the motions and
forces generated by the earthquake, it also examined the ability of the PBA
building, as designed and constructed, to withstand and successfully weather
those forces.
The evidence sufficiently supports a conclusion that the negligence and fault
of both United and Nakpil and Sons, not a mysterious act of an inscrutable
God, were responsible for the damages. The Report of the Commissioner,
Plaintiff's Objections to the Report, Third Party Defendants' Objections to the

Physical Evidence After the Earthquake, Proving Inadequacy of design;

1. Column A7 suffered the severest fracture and maximum sagging. Also D7.
2. There are more damages in the front part of the building than towards the
rear, not only in columns but also in slabs.
3. Building leaned and sagged more on the front part of the building.

Report, Defendants' Objections to the Report, Commissioner's Answer to the

4. Floors showed maximum sagging on the sides and toward the front corner

various Objections, Plaintiffs' Reply to the Commissioner's Answer, Defendants'

parts of the building.

Reply to the Commissioner's Answer, Counter-Reply to Defendants' Reply, and

Third-Party Defendants' Reply to the Commissioner's Report not to mention
the exhibits and the testimonies show that the main arguments raised on
appeal were already raised during the trial and fully considered by the lower
Court. A reiteration of these same arguments on appeal fails to convince us
that we should reverse or disturb the lower Court's factual findings and its
conclusions drawn from the facts, among them:

5. There was a lateral displacement of the building of about 8", Maximum

sagging occurs at the column A7 where the floor is lower by 80 cm. than the
highest slab level.
6. Slab at the corner column D7 sagged by 38 cm.

The Commissioner concluded that there were deficiencies or defects in the

to be desired; so much so "that the experts of the different parties, who are

design, plans and specifications of the PBA building which involved appreciable

all engineers, cannot agree on what equation to use, as to what earthquake

risks with respect to the accidental forces which may result from earthquake

co-efficients are, on the codes to be used and even as to the type of

shocks. He conceded, however, that the fact that those deficiencies or defects

structure that the PBA building (is) was (p. 29, Memo, of third- party

may have arisen from an obsolete or not too conservative code or even a

defendants before the Commissioner).

code that does not require a design for earthquake forces mitigates in a
large measure the responsibility or liability of the architect and engineer

The difficulty expected by the Court if tills technical matter were to be tried

designer.

and inquired into by the Court itself, coupled with the intrinsic nature of the

The Third-party defendants, who are the most concerned with this portion of

said issues to a Commissioner whose qualifications and experience have

the Commissioner's report, voiced opposition to the same on the grounds that

eminently qualified him for the task, and whose competence had not been

(a) the finding is based on a basic erroneous conception as to the design

questioned by the parties until he submitted his report. Within the pardonable

concept of the building, to wit, that the design is essentially that of a heavy

limit of the Court's ability to comprehend the meaning of the Commissioner's

rectangular box on stilts with shear wan at one end; (b) the finding that there

report on this issue, and the objections voiced to the same, the Court sees

were defects and a deficiency in the design of the building would at best be

no compelling reasons to disturb the findings of the Commissioner that there

based on an approximation and, therefore, rightly belonged to the realm of

were defects and deficiencies in the design, plans and specifications prepared

speculation, rather than of certainty and could very possibly be outright error;

by third-party defendants, and that said defects and deficiencies involved

(c) the Commissioner has failed to back up or support his finding with

appreciable risks with respect to the accidental forces which may result from

extensive, complex and highly specialized computations and analyzes which he

earthquake shocks.

questions involved therein, constituted the reason for the reference of the

himself emphasizes are necessary in the determination of such a highly

technical question; and (d) the Commissioner has analyzed the design of the
PBA building not in the light of existing and available earthquake engineering
knowledge at the time of the preparation of the design, but in the light of
recent and current standards.

defendants' objections were based on estimates or exhibits not presented

during the hearing that the resort to engineering references posterior to the
date of the preparation of the plans was induced by the third-party
themselves

who

specifications, and how said deviations contributed to the damage sustained

by the building.
(b) The alleged failure of defendants to observe the requisite quality of

The Commissioner answered the said objections alleging that third-party

defendants

(2) (a) The deviations, if any, made by the defendants from the plans and

submitted

computations

of

the

third-party

defendants are erroneous.

The issue presently considered is admittedly a technical one of the highest
degree. It involves questions not within the ordinary competence of the bench
and the bar to resolve by themselves. Counsel for the third-party defendants
has aptly remarked that "engineering, although dealing in mathematics, is not
an exact science and that the present knowledge as to the nature of
earthquakes and the behaviour of forces generated by them still leaves much

materials and workmanship in the construction of the building.

These two issues, being interrelated with each other, will be discussed
together.
The findings of the Commissioner on these issues were as follows:
We now turn to the construction of the PBA Building and the alleged
deficiencies or defects in the construction and violations or deviations from
the plans and specifications. All these may be summarized as follows:
a. Summary of alleged defects as reported by Engineer Mario M. Bundalian.
(1) Wrongful and defective placing of reinforcing bars.

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

(5) Column C7 Absence of spiral to a height of 20" from the ground level,
Spirals are at 2" from the exterior column face and 6" from the inner column
face,
(6) Column B6 Lack of spiral on 2 feet below the floor beams,
(7) Column B5 Lack of spirals at a distance of 26' below the beam,
(8) Column B7 Spirals not tied to vertical reinforcing bars, Spirals are

(5) Prevalence of honeycombs,

uneven 2" to 4",

(6) Contraband construction joints,

(9) Column A3 Lack of lateral ties,

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

(10) Column A4 Spirals cut off and welded to two separate clustered

(8) Deliberate severance of spirals into semi-circles in noted on Col. A-5,

ground floor,
(9) Defective construction joints in Columns A-3, C-7, D-7 and D-4, ground
floor,
(10) Undergraduate concrete is evident,
(11) Big cavity in core of Column 2A-4, second floor,
(12) Columns buckled at different planes. Columns buckled worst where there
are no spirals or where spirals are cut. Columns suffered worst displacement
where the eccentricity of the columnar reinforcement assembly is more acute.
b. Summary of alleged defects as reported by Engr. Antonio Avecilla.
Columns are first (or ground) floor, unless otherwise stated.
(1) Column D4 Spacing of spiral is changed from 2" to 5" on centers,
(2) Column D5 No spiral up to a height of 22" from the ground floor,
(3) Column D6 Spacing of spiral over 4 l/2,
(4) Column D7 Lack of lateral ties,

vertical bars,
(11) Column A4 (second floor Column is completely hollow to a height of
30"
(12) Column A5 Spirals were cut from the floor level to the bottom of the
spandrel beam to a height of 6 feet,
(13) Column A6 No spirals up to a height of 30' above the ground floor
level,
(14) Column A7 Lack of lateralties or spirals,
c. Summary of alleged defects as reported by the experts of the Third-Party
defendants.
Ground floor columns.
(1) Column A4 Spirals are cut,
(2) Column A5 Spirals are cut,
(3) Column A6 At lower 18" spirals are absent,
(4) Column A7 Ties are too far apart,

(5) Column B5 At upper fourth of column spirals are either absent or

improper spacings and the cutting of the spirals did not result in loss of

improperly spliced,

strength in the column cannot be maintained and is certainly contrary to the

general principles of column design and construction. And even granting that

(6) Column B6 At upper 2 feet spirals are absent,

there be no loss in strength at the yield point (an assumption which is very

(7) Column B7 At upper fourth of column spirals missing or improperly

spliced.

doubtful) the cutting or improper spacings of spirals will certainly result in the
loss of the plastic range or ductility in the column and it is precisely this
plastic range or ductility which is desirable and needed for earthquakeresistant strength.

(8) Column C7 Spirals are absent at lowest 18"

There is no excuse for the cavity or hollow portion in the column A4, second

(9) Column D5 At lowest 2 feet spirals are absent,

floor, and although this column did not fail, this is certainly an evidence on

(10) Column D6 Spirals are too far apart and apparently improperly spliced,

the part of the contractor of poor construction.

(11) Column D7 Lateral ties are too far apart, spaced 16" on centers.

The effect of eccentricities in the columns which were measured at about 2

There is merit in many of these allegations. The explanations given by the

column and beam moments. The main effect of eccentricity is to change the

engineering experts for the defendants are either contrary to general principles

beam or girder span. The effect on the measured eccentricity of 2 inches,

of engineering design for reinforced concrete or not applicable to the

therefore, is to increase or diminish the column load by a maximum of about

requirements for ductility and strength of reinforced concrete in earthquake-

1% and to increase or diminish the column or beam movements by about a

resistant design and construction.

maximum of 2%. While these can certainly be absorbed within the factor of

We shall first classify and consider defects which may have appreciable
bearing or relation to' the earthquake-resistant property of the building.
As heretofore mentioned, details which insure ductility at or near the

1/2 inches maximum may be approximated in relation to column loads and

safety, they nevertheless diminish said factor of safety.

The cutting of the spirals in column A5, ground floor is the subject of great
contention between the parties and deserves special consideration.

earthquake

The proper placing of the main reinforcements and spirals in column A5,

resistant design and construction. The omission of spirals and ties or hoops

ground floor, is the responsibility of the general contractor which is the UCCI.

at the bottom and/or tops of columns contributed greatly to the loss of

The burden of proof, therefore, that this cutting was done by others is upon

earthquake-resistant strength. The plans and specifications required that these

the defendants. Other than a strong allegation and assertion that it is the

spirals and ties be carried from the floor level to the bottom reinforcement of

plumber or his men who may have done the cutting (and this was flatly

the deeper beam (p. 1, Specifications, p. 970, Reference 11). There were

denied by the plumber) no conclusive proof was presented. The engineering

several clear evidences where this was not done especially in some of the

experts for the defendants asserted that they could have no motivation for

ground floor columns which failed.

cutting the bar because they can simply replace the spirals by wrapping

connections

between

columns

and

girders

are

desirable

in

There were also unmistakable evidences that the spacings of the spirals and
ties in the columns were in many cases greater than those called for in the
plans

and

specifications

resulting

again

in

loss

of

earthquake-resistant

strength. The assertion of the engineering experts for the defendants that the

around a new set of spirals. This is not quite correct. There is evidence to
show that the pouring of concrete for columns was sometimes done through
the beam and girder reinforcements which were already in place as in the
case of column A4 second floor. If the reinforcement for the girder and
column is to subsequently wrap around the spirals, this would not do for the

elasticity of steel would prevent the making of tight column spirals and loose

also aggravate the weakness mentioned in the design of the structure. In

or improper spirals would result. The proper way is to produce correct spirals

other words, these defects and deficiencies not only tend to add but also to

down from the top of the main column bars, a procedure which can not be

multiply the effects of the shortcomings in the design of the building. We may

done if either the beam or girder reinforcement is already in place. The

say,

engineering experts for the defendants strongly assert and apparently believe

contributed greatly to the damage which occurred.

that the cutting of the spirals did not materially diminish the strength of the
column. This belief together with the difficulty of slipping the spirals on the
top of the column once the beam reinforcement is in place may be a
sufficient motivation for the cutting of the spirals themselves. The defendants,
therefore, should be held responsible for the consequences arising from the
loss of strength or ductility in column A5 which may have contributed to the
damages sustained by the building.
The lack of proper length of splicing of spirals was also proven in the visible
spirals of the columns where spalling of the concrete cover had taken place.
This lack of proper splicing contributed in a small measure to the loss of

therefore,

that

the

defects

and

deficiencies

in

the

construction

Since the execution and supervision of the construction work in the hands of
the contractor is direct and positive, the presence of existence of all the
major defects and deficiencies noted and proven manifests an element of
negligence which may amount to imprudence in the construction work. (pp.
42-49, Commissioners Report).
As the parties most directly concerned with this portion of the Commissioner's
report, the defendants voiced their objections to the same on the grounds
that the Commissioner should have specified the defects found by him to be
"meritorious"; that the Commissioner failed to indicate the number of cases

strength.

where the spirals and ties were not carried from the floor level to the bottom

The effects of all the other proven and visible defects although nor can

ties in the columns were greater than that called for in the specifications; that

certainly be accumulated so that they can contribute to an appreciable loss

the hollow in column A4, second floor, the eccentricities in the columns, the

in earthquake-resistant strength. The engineering experts for the defendants

lack of proper length of splicing of spirals, and the cut in the spirals in

submitted an estimate on some of these defects in the amount of a few

column A5, ground floor, did not aggravate or contribute to the damage

percent. If accumulated, therefore, including the effect of eccentricity in the

suffered by the building; that the defects in the construction were within the

column the loss in strength due to these minor defects may run to as much

tolerable margin of safety; and that the cutting of the spirals in column A5,

as ten percent.

ground floor, was done by the plumber or his men, and not by the

To recapitulate: the omission or lack of spirals and ties at the bottom and/or

reinforcement of the deeper beam, or where the spacing of the spirals and

defendants.

at the top of some of the ground floor columns contributed greatly to the

Answering the said objections, the Commissioner stated that, since many of

collapse of the PBA building since it is at these points where the greater part

the defects were minor only the totality of the defects was considered. As

of the failure occurred. The liability for the cutting of the spirals in column

regards the objection as to failure to state the number of cases where the

A5, ground floor, in the considered opinion of the Commissioner rests on the

spirals and ties were not carried from the floor level to the bottom

shoulders of the defendants and the loss of strength in this column

reinforcement, the Commissioner specified groundfloor columns B-6 and C-5

contributed to the damage which occurred.

the first one without spirals for 03 inches at the top, and in the latter, there

It is reasonable to conclude, therefore, that the proven defects, deficiencies

and violations of the plans and specifications of the PBA building contributed
to the damages which resulted during the earthquake of August 2, 1968 and
the vice of these defects and deficiencies is that they not only increase but

were no spirals for 10 inches at the bottom. The Commissioner likewise

specified the first storey columns where the spacings were greater than that
called for in the specifications to be columns B-5, B-6, C-7, C-6, C-5, D-5 and
B-7. The objection to the failure of the Commissioner to specify the number
of columns where there was lack of proper length of splicing of spirals, the

Commissioner mentioned groundfloor columns B-6 and B-5 where all the

Relative thereto, the ruling of the Supreme Court in Tucker v. Milan (49 O.G.

splices were less than 1-1/2 turns and were not welded, resulting in some

4379, 4380) which may be in point in this case reads:

loss of strength which could be critical near the ends of the columns. He
answered the supposition of the defendants that the spirals and the ties must
have been looted, by calling attention to the fact that the missing spirals and
ties were only in two out of the 25 columns, which rendered said supposition

One who negligently creates a dangerous condition cannot escape liability for
the natural and probable consequences thereof, although the act of a third
person, or an act of God for which he is not responsible, intervenes to

to be improbable.

precipitate the loss.

The Commissioner conceded that the hollow in column A-4, second floor, did

As already discussed, the destruction was not purely an act of God. Truth to

not aggravate or contribute to the damage, but averred that it is "evidence of

poor construction." On the claim that the eccentricity could be absorbed
within the factor of safety, the Commissioner answered that, while the same
may be true, it also contributed to or aggravated the damage suffered by the
building.
The objection regarding the cutting of the spirals in Column A-5, groundfloor,
was answered by the Commissioner by reiterating the observation in his report
that irrespective of who did the cutting of the spirals, the defendants should
be held liable for the same as the general contractor of the building. The
Commissioner further stated that the loss of strength of the cut spirals and
inelastic deflections of the supposed lattice work defeated the purpose of the
spiral containment in the column and resulted in the loss of strength, as

tell hundreds of ancient buildings in the vicinity were hardly affected by the
earthquake. Only one thing spells out the fatal difference; gross negligence
and evident bad faith, without which the damage would not have occurred.
WHEREFORE, the decision appealed from is hereby MODIFIED and considering
the special and environmental circumstances of this case, We deem it
reasonable to render a decision imposing, as We do hereby impose, upon the
defendant and the third-party defendants (with the exception of Roman
Ozaeta) a solidary (Art. 1723, Civil Code, Supra, p. 10) indemnity in favor of
the Philippine Bar Association of FIVE MILLION (P5,000,000.00) Pesos to cover
all damages (with the exception of attorney's fees) occasioned by the loss of
the building (including interest charges and lost rentals) and an additional
ONE HUNDRED THOUSAND (P100,000.00) Pesos as and for attorney's fees, the

evidenced by the actual failure of this column.

total sum being payable upon the finality of this decision. Upon failure to pay

Again, the Court concurs in the findings of the Commissioner on these issues

upon afore-mentioned amounts from finality until paid. Solidary costs against

and fails to find any sufficient cause to disregard or modify the same. As

the defendant and third-party defendants (except Roman Ozaeta).

found by the Commissioner, the "deviations made by the defendants from the
plans and specifications caused indirectly the damage sustained and that
those deviations not only added but also aggravated the damage caused by
the defects in the plans and specifications prepared by third-party defendants.
(Rollo, Vol. I, pp. 128-142)
The afore-mentioned facts clearly indicate the wanton negligence of both the
defendant and the third-party defendants in effecting the plans, designs,
specifications, and construction of the PBA building and We hold such
negligence as equivalent to bad faith in the performance of their respective
tasks.

on such finality, twelve (12%) per cent interest per annum shall be imposed

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Cruz, JJ., concur.

MIS was further instructed to place the 13-ton genset[5] at the top of
Citibanks building. The broker-forwarder declined, since it had no power
cranes.[6] Thus, Citibank assigned the job to private respondent DMCI, which
accepted the task.[7]
PHILAM INSURANCE COMPANY, INC. and AMERICAN HOME INSURANCE CO.,
Petitioners,

- versus - COURT OF APPEALS, and D.M.

CONSUNJI INC.,

Respondents.
DECISION
SERENO, J.:
In this Petition for Review on Certiorari under Rule 45, petitioners Philam
Insurance Company, Incorporated (Philam) and American Home Insurance
Company (AHIC) seek the reversal of the Decision of the Court of Appeals
(CA) in CA-G.R. CV No. 60098 dated 28 June 2004 and its Resolution dated
24 September 2004. The CA Decision reversed and set aside that of the
Regional Trial Court (RTC) of Makati City in Civil Case No. 95-540 dated 28
April 1998.
The CA ruled against petitioners demand for the recovery of the value of the
insureds generator set (genset) against private respondent D.M. Consunji
Incorporated (DMCI), whose alleged negligence damaged the said equipment.

On 16 October 1993, DMCI lifted the genset with a crane (Unic-K-2000) that
had a hydraulic telescopic boom and a loading capacity of 20 tons.[8] During
the lifting process, both the cranes boom and the genset fell and got
damaged.[9]
The events leading to the fall, based mainly on the signed statement [10] of
DMCIs crane operator, Mr. Ariel Del Pilar, transpired as follows:
The genset was lifted clear out of the open top container by the crane. After
clearing the container van, the crane operator, Mr. Ariel del Pilar, had to
position the genset over the vicinity of the storage area. To do this, the
boom of the crane carrying the generator set had to be turned (swing) to
face right and stopped when it loomed over the storage area. The genset was
swinging as it came to a stop following the right turn. The crane operator
waited for the genset to stop swinging for him to perform the next maneuver.
The boom had to be raised three (3) degrees more from its position at 75
degrees, up to 78 degrees. At 78 degrees the genset could be lowered
straight down to the delivery storage area.
The genset stopped swinging. The crane operator proceeded to raise the

The antecedent facts are as follows:

boom to 78 degrees. While so doing, the crane operator felt a sudden

Four gensets from the United States of America were ordered by Citibank,

towards the crane operator, then outward and away. The body of the crane

N.A. (Citibank). Petitioner AHIC insured these gensets under Certificate No.

lifted off the ground, the boom fell from an approximate height of 9 feet, first

60221 for USD 851,500 covering various risks.[1] The insurance policy provided

hitting a Meralco line, then falling to the ground.[11]

that the claim may be paid in the Philippines by Philam Insurance Co., Inc,

upward movement of the boom. The genset began to swing in and out,

AHICs local settling agent.[2]

After two days, DMCIs surveyor, Manila Adjusters & Surveyors Co. (MASC)

Citibanks broker-forwarder, Melicia International Services (MIS),[3] transported

Certificate, the genset was already deformed.[13]

the gensets in separate container vans. It was instructed by Citibank to deliver

and haul one genset to Makati City,[4] where the latters office was being
constructed by the building contractor, DMCI.

assessed the condition of the crane and the genset.[12] According to its Survey

Citibank demanded from DMCI the full value of the damaged genset, including
the

cost,

insurance

and

freight

amounting

to

USD

212,850.[14] Private

respondent refused to pay, asserting that the damage was caused by an

line to ground, sustaining heavy damage, which negligence was attributable to

accident.

the crane operator.[21]

[15]

Thereafter, Citibank filed an insurance claim with Philam, AHICs local settling

DMCI appealed to the CA, which reversed and set aside the RTCs Decision.

agent,

The appellate court ruled that the falling of the genset was a clear case of

for

the

value

of

the

genset.

Philam

paid

the

claim

for

PhP

5,866,146.[16]

accident and, hence, DMCI could not be held responsible.

Claiming the right of subrogation, Philam demanded the reimbursement of the

In this case, plaintiffs-appellees failed to discharge the burden of proving

gensets value from DMCI, which denied liability.[17] Thus, on 19 April 1994,

negligence on the part of the defendant-appellants crane operator and other

Philam filed a Complaint with the RTC to recover the value of the insured

employees assisting in unloading the genset.

genset.[18]

xxx

At the trial court, petitioner Philam did not invoke res ipsa loquitur. Rather,
during the pre-trial conference, the parties agreed on this sole issue: Whether
or not the damage was the fault of the defendant or within their area of

xxx

xxx

The falling of the genset to the ground was a clear case of accident xxx. xxx
[D]efendant-appellant cannot be held responsible for the event which could

supervision at the time the cause of damage occurred.[19]

not be foreseen, or which though foreseen, was inevitable.[22]

The RTC ruled in favor of Philam and ordered as follows:

Accordingly, the dispositive portion reads:

WHEREFORE PREMISES CONSIDERED, judgment is hereby rendered in favor of

plaintiff as against defendant ordering the latter to pay plaintiff as follows:
1.

the amount of PhP 5,866,146.00 as actual damages with interest at

6% per annum from the date of filing of this Complaint until the sum is fully
paid.
2.

28, 1998 of the Regional Trial Court, Branch 61 of Makati City in Civil Case
no. 95-1450, isREVERSED and SET ASIDE, and the complaint dismissed.
SO ORDERED.[23]
Hence, the pertinent

the amount equivalent to 25% of the sum recoverable as attorneys

fees;
3.

WHEREFORE, there being merit in the appeal, the assailed Decision dated April

issue in this Petition is whether petitioners have

sufficiently established the negligence of DMCI for the former to recover the
value of the damaged genset. While this Court is not a trier of facts, and
hesitates to review the factual findings of the lower courts, in this occasion, it

cost of suit.

SO ORDERED.

[20]

The trial court ruled that the loss or damage to the genset was due to the
negligent operation of the crane:
This Court finds that the loss or damage brought about by the falling of the
genset was caused by negligence in the operation of the crane in lifting the
genset to as high as 9 feet causing the boom to fall [sic], hitting the Meralco

would do so considering the conflicting legal conclusions of the RTC and the
CA.
For DMCI to be liable for damages, negligence on its part must be
established.[24] Additionally, that finding must be the proximate cause of the
damage to the genset.[25]We agree with the CA that Philam failed to establish
DMCIs negligence.
Negligence is the want of care required by the circumstances.[26] It is
a conduct that involves an unreasonably great risk of causing damage; or,

more fully, a conduct that falls below the standard established by law for the

Proceeding to the more contentious claim, Philam emphasized the apparent

protection of others against unreasonably great risk of harm.

inconsistencies in Del Pilars narration. In his signed statement, executed 15

[27]

Philam blames the conduct of DMCIs crane operator for the gensets fall.
Essentially, it points out the following errors in operating the crane:

75 to 78 degrees at the stage when the genset was already set for lowering
to the ground.[28]

genset.[32]
But in his affidavit, executed already during the trial, Del Pilar mentioned that
he moved the boom slowly when he raised it to 78 degrees. [33] Philam deems

Second, Del Pilars revving of the motor of the boom triggered the chain of
events starting with the jerk, then followed by the swinging of the genset
which was obviously violent as it caused the body of the crane to tilt upward,
and ultimately, caused the boom with the genset to fall.[29]

this narration questionable since the slow movement was never mentioned in
Del Pilars earlier signed statement.[34]
Examining the signed statement and the affidavit of Del Pilar, petitioner Philam
inaccurately portrayed his narration.

It would be a long stretch to construe these as acts of negligence. Not all

omissions can be considered as negligent. The test of negligence is as
follows:

In his signed statement, Del Pilar already mentioned that he slowly moved the
genset, and when it swayed, he waited for the swinging to stop before he
lifted the equipment:

Could a prudent man, in the case under consideration, foresee harm as a

result of the course actually pursued? If so, it was the duty of the actor to
take precautions to guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist.[30]

operator were rational and justified.

replete with explanations for why the boom of the crane had to be raised
from 75 to 78 degrees. Although the boom is already in the general area of
the gensets storage place, still, it had to be raised three (3) degrees in order
to put it exactly in the proper designation. At 78 degrees, the genset could
down

to

the

open top van container, dahan-dahan na ako nagpihit o swing papunta sa

kanan at pagkatapos ng nasa direksyon na ako ng paglalagyan, itinigil ko ang
pagpihit o pag swing pagkatapos hinintay ko ang genset sa paggalaw at ng
78, sa tantya ko at noong mag boom up, nag-rebolution (sic) ako at
naramdaman ko na biglang gumalaw paangat (paboom-up) ang boom ng
Crane No. CR-81 at nag-swing na naman patungo sa akin ang genset. At nang

Addressing Philams first submission, this Court finds that the records are

straight

Itinuloy ko na ang pag-angat ng genset at pagkatapos ng malagpas na sa

huminto na ang genset sa paggalaw, nagboom up ako mula 75 hanggang

Applying the test, the circumstances would show that the acts of the crane

lowered

75 to 78 degrees, he revved the motor, upon which he felt the sudden

upward movement (jerk) of the boom followed by the swinging of the

First, Del Pilar did not give any reason for his act of raising the boom from

be

days after the incident, Del Pilar stated that when he raised the boom from

delivery/storage

area. [31] DMCIs

crane

operation team determined accordingly that there was a need to raise the
boom in order to put the genset in the exact location. Indeed, the heavy
equipment must be secured in its proper place.

ito ay umindayog papalayo sa crane ay doon ko naramdaman na iyong body

ng Crane No. CR-81 ay umangat at nakita kong tumumba ang boom ng Crane
CR-81 at bumagsak ang genset sa loob ng Citibank (sic) Parking Area. Noon
ika-16 ng Octubre 1993 ng oras na alas 4:55 ng umaga. (Emphasis supplied.)
In his affidavit, Del Pilars statements concentrated on the manner of lifting of
the genset. At this point, he recalled that the boom was raised slowly[35]:
T:

Papaano

mo naitaas ang boom ng crane mula 75 digri

hanggang 78 digri?
S:

Dahan-dahan lang po.

T:

Pagkatapos mong maitaas ang boom ng crane sa 78 digri, iyong

Alternatively, Philam asserts that if care was exercised in operating the crane,

inumpisahan ibinaba ang generator set sa lupa subalit ito ay nagumpisang

and yet the genset was damaged, then it must have been the very crane

umugoy-ugoy o dumuyan-duyan palabas at papasok ang karga na generator

itself that was defective.[40]

set patungo sa akin. Ito ba ay tutuo?

S:

Opo.

[36]

We cannot give credence to mere conjectures and assumptions on the

condition of the crane to prove negligence. In Picart v. Smith, the Court

(Emphasis supplied.)

The affidavit, which the CA used as the main basis for its Decision, pertained

stressed that abstract speculations cannot be of much value:

exactly to how the cranes boom had been raised. It is only when a witness

The question as to what would constitute the conduct of a prudent man in a

makes two sworn statements, and these two statements incur the gravest

given situation must of course be always determined in the light of human

contradictions, that the court cannot accept both statements as proof.[37]

experience and in view of the facts involved in the particular case. Abstract

Logically, in order to raise the cranes boom, the operator must step on the
pedal; else, the 13-ton genset would not be brought down. Philam did not
even present expert evidence to challenge the need of increasing the power
supply to move the boom.
Donato

F.

Solis,

DMCIs

electrical

engineer

assigned

to

supervise

and
He

gave an eyewitness account of the incident, and his statements thereon were
taken by the surveyor, MASC. Solis said:
What happened when the genset was already lifted out and at the

above proposed storage area?

A:

After it was already at above the designated area, the genset was

still swinging during the time (at about 4:50 a.m., October 16, 1993) and when
the genset stopped swinging I noticed that it was being lowered slowly to the
ground and until approx. 6 feet above the ground. I noticed that it was not
being lowered because it was moving diagonally toward us. When it was
moving toward us we ran to avoid being hit by the genset.[38]
Even if Del Pilar failed to mention the slow manner of raising the boom in his
earlier signed statement, the reverse is not necessarily established. Persons
are easily liable to commit errors in the recollection of minute details of an
important occurrence.[39]

said: Reasonable men govern their conduct by the circumstances which are
before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when
there is something before them to suggest or warn of danger. [41]

coordinate the cranes operations, corroborated Del Pilars description.

Q:

speculations cannot here be of much value but this much can be profitably

The speculative assertion of Philam should be supported by specific evidence

of the cranes defects. Instead, Philam utterly failed to contradict the findings
of MASC which made an actual site inspection to observe the crane used in
lifting the genset. In its Survey Certificate, it stated that: [U]pon close
examination, the crane was observed in actual operation and found to be in
satisfactory working condition.[42] (Emphasis supplied.)
Since Philam failed to convince us of actions that would lay the blame on
DMCI, this Court agrees with the CA that DMCI exercised the necessary care
and precaution in lifting the genset.
Firstly, a whole team was involved in transferring the genset. Petitioners did
not even the question the acts of the other team members involved in the
crane operations. Del Pilar stated thus:
T:

Ikaw lang ba mag-isa ang magbababa ng nasabing generator

set?
S:

Hindi po, ako po ay tinulungan ng isang katrabahong rigger na

ang pangalan ay si G. MARCELINO ROMERO, ng aming Foreman na si G.

FERNANDO DELA ROSA ng Motor Pool, isang mekaniko, at ni DONATO SOLIS,
isang ehenyero.

T:

Anu-ano tulong o ayuda ang naibigay sa iyo ng bawat isa sa mga

taong iyong nabanggit?

S:

Q:

What did you observe during the lifting operation?

A:

During the lifting operation, I noticed that it took awhile (approx. 30

Si G. MARCELINO ROMERO na isang rigger ay tumulong sa akin

minutes) in lifting the genset, because the Crane Operator, Mr. Ariel del Pilar

upang maitali ang generator set sa kable ng crane at sa pagbibigay ng

was testing the lifting capability of Crane No. CR-81. I saw the genset, which

senyas sa akin kung kailan itataas ang pagbuhat ng generator set, kung

was several times lifted about 1 foot high from the flooring of the open top

kailan magaalalay sa pagtaas at

van container.[46]

mga iba pang bagay-bagay na may

kinalaman sa pagpapatakbo ng crane. Ang motor pool foreman ay nandoon

naman upang tingnan at subaybayan na lahat ng bagay pangkaligtasan sa
pagbubuhat ng crane sa generator set upang itoy maibaba ng maayos. Si
Ehenyero

DONATO

SOLIS

ay

ang

pangkalahatang

nangangasiwa

sa

pagbubuhat o paglalapag ng nasabing generator set. Ang mekaniko naman

na hindi ko na matandaan ang kanyang pangalan ay nandoon upang
tumulong

kung

sakaling

magkakaroon

ng

suliranin

pang-mekanikal

ang

crane.[43]
Secondly, as found by the CA,[44] Del Pilar exercised reasonable care and
caution when he tested the crane four times right before actual operations to
make sure that it could lift the genset. He stated further:
T:

Maari (sic) mo bang isalaysay ang buong pangyayari tungkol sa

pagbuhat at pagdiskarga ng genset mula sa open top van container na nasa

trailer ng ibabaw ng Marzan Trucking?
S:

Nang matalian po namin (ako at ang nasabing rigger man) ang

genset, pumunta na po ako sa operating cab ng Crane No. CR-81 pagkatapos

pinaandar ko ang Crane CR-81 para umpisahan iangat ang genset mula sa
open top container pagkatapos sinubukan ko ng buhatin ang genset at nang
mabuhat ng isa o dalawang dangkal, ibinaba ko ito muli sa dating pwesto ng
maka-apat na beses.
T:

Bakit mo ibinaba ng apat na beses ang genset mula ng ito ay

iangat mo?
S:

Thirdly, as can be gleaned from the statements above, Del Pilar stopped
turning the controls, and it was only when the swinging stopped that he
performed the next maneuver. All of these acts, as proven by the evidence,
showed due diligence in operating the crane.
In their final effort to reverse the appellate court, petitioners invoked res ipsa

loquitur, even if they never had raised this doctrine before the trial court.
According to petitioners, the requisites of res ipsa loquitur are present in this
case.[47] Had the principle been applied, the burden of proof in establishing
due diligence in operating the crane would have shifted to DMCI.[48]
In

this

case, res

ipsa loquitur is not applicable, since there is direct

evidence[49] on the issue of diligence or lack thereof pertaining to the lifting of

the genset. The doctrine is not a rule of substantive law, but merely a mode
of proof or a mere procedural convenience.[50]
In any event, res ipsa loquitur merely provides a rebuttable presumption of
negligence. On this, we have already pointed out that the evidence does not
prove negligence on the part of DMCI, and that due diligence on its part has
been established.
Hence, it has generally been held that the presumption arising from the
doctrine cannot be availed of, or is overcome when the plaintiff has
knowledge and testifies or presents evidence as to the specific act of
negligence that caused the injury complained of; or when there is direct

Sinisigurado ko ho na kaya ng Crane No. 81 ang bigat ng

evidence as to the precise cause of the accident, and with all the attendant

genset[.]

facts clearly present.[51] Finally, neither the presumption nor the doctrine would

The testing of the crane during actual operations was corroborated by Solis

inference of the defendant's liability can reasonably be made, whatever the

when he stated as follows:

source of the evidence.[52]

[45]

apply when the circumstances have been so completely elucidated that no

Absent any finding of negligence, we sustain the CAs findings that DMCI
exercised due diligence; that the event is an accident; and that consequently
Philam cannot claim damages for the damaged genset.[53]
IN VIEW THEREOF, the assailed 28 June 2004 Decision of the
Court of Appeals and its 24 September 2004 Resolution are AFFIRMED. The 11
October 2004 Petition for Review filed by Philam Insurance Company, Inc. and
American Home Insurance Corporation is hereby DENIED for lack of merit.
SO ORDERED.

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

by private respondent spouses

against petitioner Philippine Long Distance Telephone Company (PLDT, for

brevity) for the injuries they sustained in the evening of July 30, 1968 when
their jeep ran over a mound of earth and fell into an open trench, an
excavation

allegedly

undertaken

by

PLDT

for

the

installation

of

its

underground conduit system. The complaint alleged that respondent Antonio

Esteban failed to notice the open trench which was left uncovered because of
the creeping darkness and the lack of any warning light or signs. As a result
of the accident, respondent Gloria Esteban allegedly sustained injuries on her
arms, legs and face, leaving a permanent scar on her cheek, while the
respondent husband suffered cut lips. In addition, the windshield of the jeep
was shattered.

PLDT, in its answer, denies liability on the contention that the injuries
sustained by respondent spouses were the result of their own negligence and
that the entity which should be held responsible, if at all, is L.R. Barte and
Company (Barte, for short), an independent contractor which undertook the
construction of the manhole and the conduit system.

Accordingly, PLDT filed

a third-party complaint against Barte alleging that, under the terms of their
agreement, PLDT should in no manner be answerable for any accident or
injuries arising from the negligence or carelessness of Barte or any of its
employees.

In answer thereto, Barte claimed that it was not aware nor was it

notified of the accident involving respondent spouses and that it had complied

with the terms of its contract with PLDT by installing the necessary and

reconsideration, dated February 27, 1980.

appropriate standard signs in the vicinity of the work site, with barricades at

court, in a resolution likewise penned by Justice Agrava, allowed respondents

both ends of the excavation and with red lights at night along the excavated

to file a second motion for reconsideration, within ten (10) days from notice

area to warn the traveling public of the presence of excavations.

thereof.

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.

the defendant-third party plaintiff has paid to the plaintiff. With costs against
6

appealing only as to the amount of damages. Third-party defendant Barte did

not appeal.

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
A copy of this decision was received by private respondents on

October 10, 1979.

On October 25, 1979, said respondents filed a motion

for reconsideration dated October 24, 1979.

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.
On

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
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
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

On September 25, 1979, the Special Second Division of the Court of Appeals

motion for reconsideration on March 7, 1980.

the second motion for reconsideration of private respondent spouses was filed

From this decision both PLDT and private respondents appealed, the latter

damages.

Said resolution was received by private respondents on April 1,

1980 but prior thereto, private respondents had already filed their second

affirming in toto the decision of the lower court.

(B) The third-party defendant is hereby ordered to reimburse whatever amount

the defendant.

13

On March 11, 1980, respondent

12

February

respondents'

29,

11

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

1980,

motion

for the acts of an independent contractor.

for

respondent
leave

of

Court
court

to

of

Appeals

file

received

second

private

motion

for

additional ground that said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution

Section 1, Rule 52 of the Rules of Court, which had procedural governance at

and in misapplying the independent contractor rule in holding PLDT liable to

the time, provided that a second motion for reconsideration may be presented

respondent Esteban spouses.

within fifteen (15) days from notice of the order or judgment deducting the

A convenient resume of the relevant proceedings in the respondent court, as

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

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

respondents;

a petition for review on certiorari to this Court within fifteen (15) days from

(d) January 24, 1980, a resolution was issued denying said motion for

motion 'for reconsideration on February 29, 1980, and said second motion for

reconsideration;

reconsideration on March 7, 1980, both of which motions were by then time-

(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.

February 23, 1980.

22

Instead, they filed a motion for leave to file a second

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

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

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by

respondents to file their second motion for reconsideration was of no legal

the jeep swerving from the left that is, swerving from the inside lane. What

consequence since it was given when there was no more period to extend. It

caused the swerving is not disclosed; but, as the cause of the accident,

is an elementary rule that an application for extension of time must be filed

defendant cannot be made liable for the damages suffered by plaintiffs. The

prior to the expiration of the period sought to be extended.

Necessarily, the

accident was not due to the absence of warning signs, but to the unexplained

discretion of respondent court to grant said extension for filing a second

abrupt swerving of the jeep from the inside lane. That may explain plaintiff-

motion for reconsideration is conditioned upon the timeliness of the motion

husband's insistence that he did not see the ACCIDENT MOUND for which

seeking the same.

reason he ran into it.

No appeal having been taken seasonably, the respondent court's decision,

Second. That plaintiff's jeep was on the inside lane before it swerved to hit

dated September 25, 1979, became final and executory on March 9, 1980.

the ACCIDENT MOUND could have been corroborated by a picture showing

The subsequent resolutions of respondent court, dated March 11, 1980 and

Lacson Street to the south of the ACCIDENT MOUND.

24

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.

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 plaintiffhusband 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

Moreover, we also sustain the findings of respondent Court of Appeals in its

wide. If he did not see the ACCIDENT MOUND in time, he would not have

original decision that there was insufficient evidence to prove any negligence

seen any warning sign either. He knew of the existence and location of the

on the part of PLDT. We have for consideration only the self-serving testimony

ACCIDENT

ordinary

of respondent Antonio Esteban and the unverified photograph of merely a

precaution, he should have driven his jeep on the night of the accident so as

portion of the scene of the accident. The absence of a police report of the

to avoid hitting the ACCIDENT MOUND.

incident and the non-submission of a medical report from the hospital where

MOUND,

having

seen

it

many previous

times.

With

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

private respondents were allegedly treated have not even been satisfactorily
explained.

goes to the very cause of the occurrence of the accident, as one of its

As aptly observed by respondent court in its aforecited extended resolution of

determining

January 24, 1980

damages.

30

factors,

and

thereby

precludes

their

right

to

recover

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

(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,

the part of petitioner.

with defendant, as the party being charged, being given the benefit of any

The presence of warning signs could not have completely prevented the

person could have deliberately engineered a similar accident in the hope and

accident; the only purpose of said signs was to inform and warn the public of

expectation that the Court can grant him substantial moral and exemplary

the presence of excavations on the site. The private respondents already knew

damages from the big corporation that defendant is. The statement is made

of the presence of said excavations. It was not the lack of knowledge of

only to stress the disadvantageous position of defendant which would have

these excavations which caused the jeep of respondents to fall into the

extreme difficulty in contesting such person's claim. If there were no witness

excavation but the unexplained sudden swerving of the jeep from the inside

or record available from the police department of Bacolod, defendant would

lane towards the accident mound. As opined in some quarters, the omission

not be able to determine for itself which of the conflicting testimonies of

to perform a duty, such as the placing of warning signs on the site of the

plaintiffs is correct as to the report or non-report of the accident to the

excavation, constitutes the proximate cause only when the doing of the said

police department.

omitted act would have prevented the injury.

doubt. Definitely without ascribing the same motivation to plaintiffs, another

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.

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.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur.

RAMON K.

ILUSORIO, petitioner, vs. HON. COURT OF APPEALS, and THE

MANILA BANKING CORPORATION, respondents.

comparing the signatures affixed thereat against the specimen signatures of

D E C I S I O N

Mr. Ramon K. Ilusorio which we have on file at our said office on such dates,

QUISUMBING, J.:
This petition for review seeks to reverse the decision[1] promulgated on

x x x

January 28, 1999 by the Court of Appeals in CA-G.R. CV No. 47942, affirming

That the aforementioned checks were among those issued by Manilabank in

the decision of the then Court of First Instance of Rizal, Branch XV (now the

favor of its client MR. RAMON K. ILUSORIO,

Regional Trial Court of Makati, Branch 138) dismissing Civil Case No. 43907,
for damages.

That the same were personally encashed by KATHERINE E. ESTEBAN, an

executive secretary of MR. RAMON K. ILUSORIO in said Investment Corporation;

The facts as summarized by the Court of Appeals are as follows:

That I have met and known her as KATHERINE E. ESTEBAN the attending

Petitioner is a prominent businessman who, at the time material to this case,

verifier when she personally encashed the above-mentioned checks at our said

was the Managing Director of Multinational Investment Bancorporation and the

office;

Chairman and/or President of several other corporations.

He was a depositor

in good standing of respondent bank, the Manila Banking Corporation, under

current Checking Account No. 06-09037-0.

As he was then running about 20

corporations, and was going out of the country a number of times, petitioner
entrusted to his secretary, Katherine
checkbook with blank checks.

[2]

E. Eugenio, his credit cards and his

It was also Eugenio who verified and reconciled

the statements of said checking account.[3]

able to encash and deposit to her personal account about seventeen (17)
checks drawn against the account of the petitioner at the respondent bank,
with an aggregate amount of P119,634.34. Petitioner did not bother to check
his statement of account until a business partner apprised him that he saw
Petitioner fired Eugenio immediately, and

instituted a criminal action against her for estafa thru falsification before the
Office of the Provincial Fiscal of Rizal.

Private respondent, through an

affidavit executed by its employee, Mr. Dante Razon, also lodged a complaint
for estafa thru falsification of commercial documents against Eugenio on the
basis of petitioners statement that his signatures in the checks were
forged.[4] Mr. Razons affidavit states:

verification

procedures

issuance and encashment of the same.[5]

Petitioner then requested the respondent bank to credit back and restore to
its account the value of the checks which were wrongfully encashed but

At the trial, petitioner testified on his own behalf, attesting to the truth of the
circumstances
forgeries.

as

narrated

above,

and

how

he

discovered

the

alleged

Several employees of Manila Bank were also called to the witness

stand as hostile witnesses.

They testified that it is the banks standard

operating procedure that whenever a check is presented for encashment or

clearing, the signature on the check is first verified against the specimen
signature cards on file with the bank.
Manila Bank also sought the expertise of the National Bureau of Investigation
(NBI) in determining the genuineness of the signatures appearing on the
checks.

However, in a letter dated March 25, 1987, the NBI informed the trial

court that they could not conduct the desired examination for the reason that

That I have examined and scrutinized the following checks in accordance with
prescribed

signature appearing on the checks further alleged to have not authorized the

respondent bank refused. Hence, petitioner filed the instant case.[6]

Between the dates September 5, 1980 and January 23, 1981, Eugenio was

Eugenio use his credit cards.

That MR. RAMON K. ILUSORIO executed an affidavit expressly disowning his

with

utmost

care

and

diligence

by

the

standard

specimens

submitted were not

rendering a definitive opinion.

sufficient

for

purposes

of

The NBI then suggested that petitioner be

asked to submit seven (7) or more additional standard signatures executed

before

or

checks.

about,

and

immediately

after

the

dates

of

the

questioned

Petitioner, however, failed to comply with this request.

DAMAGE, TO THE PETITIONER, AND THAT IT WAS NOT NEGLIGENT IN THE

SELECTION AND SUPERVISION OF ITS EMPLOYEES.[11]

After evaluating the evidence on both sides, the court a quo rendered

D. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENT

judgment on May 12, 1994 with the following dispositive portion:

BANK SHOULD BEAR THE LOSS, AND SHOULD BE MADE TO PAY PETITIONER,

WHEREFORE, finding no sufficient basis for plaintiff's cause herein against

WITH RECOURSE AGAINST KATHERINE EUGENIO ESTEBAN.[12]

defendant bank, in the light of the foregoing considerations and established

Essentially the issues in this case are:

facts, this case would have to be, as it is hereby DISMISSED.

cause of action against private respondent; and (2) whether or not private

(1) whether or not petitioner has a

respondent, in filing an estafa case against petitioners secretary, is barred

Defendants counterclaim is likewise DISMISSED for lack of sufficient basis.

from raising the defense that the fact of forgery was not established.

SO ORDERED.[7]

Petitioner contends that Manila Bank is liable for damages for its negligence

Aggrieved, petitioner elevated the case to the Court of Appeals by way of a

petition for review but without success.

The appellate court held that

petitioners own negligence was the proximate cause of

his loss.

The

appellate court disposed as follows:

in failing to detect the discrepant checks.

forged endorsement of the payees signature and which collects the amount
of the check from the drawee is liable for the proceeds thereof to the
payee.

WHEREFORE, the judgment appealed from is AFFIRMED.

Costs against the

appellant.

He adds that as a general rule a

bank which has obtained possession of a check upon an unauthorized or

Petitioner invokes the doctrine of estoppel, saying that having itself

instituted a forgery case against Eugenio, Manila Bank is now estopped from
asserting that the fact of forgery was never proven.
For its part, Manila Bank contends that respondent appellate court did not

SO ORDERED.[8]

depart from the accepted and usual course of judicial proceedings, hence

Before us, petitioner ascribes the following errors to the Court of Appeals:

there is no reason for the reversal of its ruling.

A.

considering that the fact of forgery was never proven. Lastly, the bank

THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE RESPONDENT

BANK IS ESTOPPED FROM RAISING THE DEFENSE THAT THERE WAS NO

FORGERY OF THE SIGNATURES OF THE PETITIONER IN THE CHECK BECAUSE
THE

RESPONDENT

FILED

CRIMINAL

COMPLAINT

FOR

ESTAFA

THRU

FALSIFICATION OF COMMERCIAL DOCUMENTS AGAINST KATHERINE EUGENIO

USING THE AFFIDAVIT OF PETITIONER STATING THAT HIS SIGNATURES WERE

Manila Bank additionally

points out that Section 23[13] of the Negotiable Instruments Law is inapplicable,
negates petitioners claim of estoppel.[14]
On the first issue, we find that petitioner has no cause of action against
Manila Bank.

To be entitled to damages, petitioner has the burden of proving

negligence on the part of the bank for failure to detect the discrepancy in the

FORGED AS PART OF THE AFFIDAVIT-COMPLAINT.[9]

signatures on the checks.

B. THE COURT OF APPEALS ERRED IN NOT APPLYING SEC. 23, NEGOTIABLE

with those on the questioned checks.

INSTRUMENTS LAW.[10]

submit additional specimen signatures as requested by the National Bureau of

C. THE COURT OF APPEALS ERRED IN NOT HOLDING THE BURDEN OF PROOF

IS WITH THE RESPONDENT BANK TO PROVE THE DUE DILIGENCE TO PREVENT

It is incumbent upon petitioner to establish the fact

of forgery, i.e., by submitting his specimen signatures and comparing them

Curiously though, petitioner failed to

Investigation from which to draw a conclusive finding regarding forgery.

The

Court of Appeals found that petitioner, by his own inaction, was precluded
from setting up forgery.

Said the appellate court:

We cannot fault the court a quo for such declaration, considering that the

not equivalent to negligence if they were honest mistakes.

plaintiffs evidence on the alleged forgery is not convincing enough.

case, we believe and so hold that if there were mistakes, the same were not

The

burden to prove forgery was upon the plaintiff, which burden he failed to
discharge. Aside from his own testimony, the appellant presented no other
evidence to prove the fact of forgery.

He did not even submit his own

specimen signatures, taken on or about the date of the questioned checks,

for examination and comparison with those of the subject checks.

On the

other hand, the appellee presented specimen signature cards of the appellant,
taken at various years, namely, in 1976, 1979 and 1981 (Exhibits 1, 2, 3
and 7), showing variances in the appellants unquestioned signatures.

The

evidence further shows that the appellee, as soon as it was informed by the
appellant about his questioned signatures, sought to borrow the questioned
checks from the appellant for purposes of analysis and examination (Exhibit
9), but the same was denied by the appellant.

It was also the former which

sought the assistance of the NBI for an expert analysis of the signatures on
the questioned checks, but the same was unsuccessful for lack of sufficient
specimen signatures.[15]

of its duty as drawee lacks factual basis.

Consistently, the CA and the RTC

found that Manila Bank employees exercised due diligence in cashing the
The banks employees in the present case did not have a hint as to

Eugenios modus operandi because she was a regular customer of the bank,
having

been

designated

by

petitioner

himself

to

transact

in

his

behalf. According to the appellate court, the employees of the bank exercised
due diligence in the performance of their duties.

Thus, it found that:

diligence before encashing the checks.

Its verifiers first verified the drawers

signatures thereon as against his specimen signature cards, and when in

doubt, the verifier went further, such as by referring to a more experienced
for

further

As

borne

negligent.

by

the

records,

it

was

petitioner,

not

the bank,

who

was

Negligence is the omission to do something which a reasonable

man, guided by those considerations which ordinarily regulate the conduct of

human affairs, would do, or the doing of something which a prudent and
reasonable man would do.[17] In the present case, it appears that petitioner
accorded his secretary unusual degree of trust and unrestricted access to his
credit cards, passbooks, check books, bank statements, including custody and
possession of cancelled checks and reconciliation of accounts.

Said the

Court of Appeals on this matter:

Moreover, the appellant had introduced his secretary to the bank for purposes
of reconciliation of his account, through a letter dated July 14, 1980 (Exhibit
8).

Thus, the said secretary became a familiar figure in the bank.

What is

verification.

In

some

instances

confirmation by calling the depositor by phone.

the

verifier

made

It is only after taking such

precautionary measures that the subject checks were given to the teller for
payment.

The trouble is, the appellant had put so much trust and confidence in the
said secretary, by entrusting not only his credit cards with her but also his
checkbook with blank checks.

He also entrusted to her the verification and

reconciliation of his account.

Further adding to his injury was the fact that

while the bank was sending him the monthly Statements of Accounts, he was
not personally checking the same.

His testimony did not indicate that he was

Thus, he had all

the opportunities to verify his account as well as the cancelled checks issued
thereunder -- month after month.

But he did not, until his partner asked him

whether he had entrusted his credit card to his secretary because the said
partner had seen her use the same.
verify the records of his account.

It was only then that he was minded to

[18]

The abovecited findings are binding upon the reviewing court.

We stress the

rule that the factual findings of a trial court, especially when affirmed by the
appellate court, are binding upon us[19] and entitled to utmost respect[20] and

Of course it is possible that the verifiers of TMBC might have made a mistake
in failing to detect any forgery -- if indeed there was.

same secretary who answers and confirms the checks.

out of the country during the period covered by the checks.

The evidence on both sides indicates that TMBCs employees exercised due

verifier

deliberate, since the bank took all the precautions.[16]

worse, whenever the bank verifiers call the office of the appellant, it is the

Moreover, petitioners contention that Manila Bank was remiss in the exercise

checks.

In the instant

However, a mistake is

even finality.

We find no palpable error that would warrant a reversal of the

appellate courts assessment of facts anchored upon the evidence on record.

Petitioners failure to examine his bank statements appears as the proximate

present case, the fact of forgery was not established with certainty.

cause of his own damage.

Proximate cause is that cause, which, in natural

cited cases, the collecting banks were held to be negligent for failing to

and

unbroken

cause,

observe precautionary measures to detect the forgery. In the case before us,

have

both courts below uniformly found that Manila Banks personnel diligently

In the instant case, the bank was not shown to be remiss in its

performed their duties, having compared the signature in the checks from the

continuous

produces

the

occurred.[21]

sequence,
injury,

and

without

by

any

which

efficient

the

result

intervening
would

not

duty of sending monthly bank statements to petitioner so that any error or

specimen

discrepancy in the entries therein could be brought to the banks attention at

petitioners.

the

earliest

opportunity.

But,

petitioner

failed

to

examine

these

bank

statements not because he was prevented by some cause in not doing so,
but because he did not pay sufficient attention to the matter.

Had he done

so, he could have been alerted to any anomaly committed against him.

In

other words, petitioner had sufficient opportunity to prevent or detect any

misappropriation by his secretary had he only reviewed the status of his
accounts based on the bank statements sent to him regularly. In view of
Article 2179 of the New Civil Code,[22] when the plaintiffs own negligence was
the immediate and proximate cause of his injury, no recovery could be had
for damages.
Petitioner

further

contends

that

under

Section

23

of

the

Negotiable

authority to pay the forged checks. True, it is a rule that when a signature is
forged or made without the authority of the person whose signature it
purports to be, the check is wholly inoperative.

No right to retain the

instrument, or to give a discharge therefor, or to enforce payment thereof

signature.

any

the second

on

issue,

party,

can

be

acquired

through

or

under

such

However, the rule does provide for an exception, namely: unless

the party against whom it is sought to enforce such right is precluded from
setting up the forgery or want of authority. In the instant case, it is the
exception that applies.

In our view, petitioner is precluded from setting up the

forgery, assuming there is forgery, due to his own negligence in entrusting to

his secretary his credit cards and checkbook including the verification of his

the

fact

and

satisfied

that

Manila

themselves

Bank

had

that

filed

it

was

case

for estafa against Eugenio would not estop it from asserting the fact that
forgery has not

been clearly established. Petitioner

cannot hold private

respondent in estoppel for the latter is not the actual party to the criminal
action.

In a criminal action, the State is the plaintiff, for the commission of a

felony is an offense against the State.[25] Thus, under Section 2, Rule 110 of
the Rules of Court the complaint or information filed in court is required to
be brought in the name of the People of the Philippines.

the estafa case

[26]

against

alleged forgery.

In the cited cases, the fact of forgery was not in issue. In the

basis

of

petitioners

own

with the petitioner as a valuable client, by bolstering the estafa case which he
filed against his secretary.
All told, we find no reversible error that can be ascribed to the Court of
Appeals.
WHEREFORE, the instant petition is DENIED for lack of merit.

The assailed

decision of the Court of Appeals dated January 28, 1999 in CA-G.R. CV No.
47942, is AFFIRMED.

SO ORDERED.

has the duty to ascertain the genuineness of all prior endorsements is

the

It is, therefore, easy to understand that the filing of

Petitioners reliance on Associated Bank vs. Court of Appeals[23] and Philippine

Bank as the collecting or last endorser generally suffers the loss because it

on

the estafa case by respondent bank was a last ditch effort to salvage its ties

Costs against petitioner.

Bank of Commerce vs. CA[24] to buttress his contention that respondent Manila

Eugenio

affidavit,[27] but without admitting that he had any personal knowledge of the

statements of account.

misplaced.

record

Further, as petitioner himself stated in his petition, respondent bank filed

Instruments Law a forged check is inoperative, and that Manila Bank had no

against

On

signatures

In those

Bellosillo, Acting
Sr., JJ., concur.

C.J.,

(Chairman),

Mendoza,

Austria-Martinez, and Callejo,

Appeals

dated

09

July

2002

which

denied

petitioners

motion

for

reconsideration.
The cause of action before the trial court was one for damages brought
under the human relations provisions of the New Civil Code.

Plaintiff thereat

(respondent herein) Roberto Reyes, more popularly known by the screen name
Amay Bisaya, alleged that at around 6:00 oclock in the evening of 13
October 1994, while he was having coffee at the lobby of Hotel Nikko, [5] he
was spotted by his friend of several years, Dr. Violeta Filart, who then
approached him.[6] Mrs. Filart invited him to join her in a party at the hotels
penthouse in celebration of the natal day of the hotels manager, Mr.
Masakazu Tsuruoka.[7] Mr. Reyes asked if she could vouch for him for which
she replied: of course.[8] Mr. Reyes then went up with the party of Dr. Filart
carrying

the

basket

of

fruits

which

was

the

latters

present

for

the

celebrant.[9] At the penthouse, they first had their picture taken with the
celebrant after which Mr. Reyes sat with the party of Dr. Filart. [10] After a
couple of hours, when the buffet dinner was ready, Mr. Reyes lined-up at the
buffet table but, to his great shock, shame and embarrassment, he was
stopped by petitioner herein, Ruby Lim, who claimed to speak for Hotel Nikko
as Executive Secretary thereof.[11] In a loud voice and within the presence and
hearing of the other guests who were making a queue at the buffet table,
Ruby Lim told him to leave the party (huwag ka nang kumain, hindi ka

imbitado, bumaba ka na lang).[12] Mr. Reyes tried to explain that he was

invited by Dr. Filart.[13]

Dr. Filart, who was within hearing distance, however,

completely ignored him thus adding to his shame and humiliation. [14] Not long
after, while he was still recovering from the traumatic experience, a Makati
policeman approached and asked him to step out of the hotel. [15] Like a
NIKKO

HOTEL

MANILA

GARDEN

and

RUBY LIM, petitioners, vs. ROBERTO

REYES, a.k.a. AMAY BISAYA, respondent.

D E C I S I O N
CHICO-NAZARIO, J.:
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden
(Hotel Nikko)[1] and Ruby Lim assail the Decision[2] of the Court of Appeals
dated 26 November 2001 reversing the Decision[3] of the Regional Trial Court
(RTC) of Quezon City, Branch 104, as well as the Resolution[4] of the Court of

common

criminal,

he

was

escorted

out

of

the

party

by

the

policeman.[16] Claiming damages, Mr. Reyes asked for One Million Pesos actual
damages, One Million Pesos moral and/or exemplary damages and Two
Hundred Thousand Pesos attorneys fees.[17]
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party
but not under the ignominious circumstance painted by the latter.

Ms. Lim

narrated that she was the Hotels Executive Secretary for the past twenty (20)
years.[18] One of her functions included organizing the birthday party of the
hotels former General Manager, Mr. Tsuruoka.[19] The year 1994 was no
different.

For Mr. Tsuruokas party, Ms. Lim generated an exclusive guest list

and

extended

invitations

accordingly.[20] The

guest

list

was

limited

to

approximately sixty (60) of Mr. Tsuruokas closest friends and some hotel
employees and that Mr. Reyes was not one of those invited.

[21]

At the party,

Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink. [22]Mindful
of Mr. Tsuruokas wishes to keep the party intimate, Ms. Lim approached Mr.
Boy Miller, the captain waiter, to inquire as to the presence of Mr. Reyes
who was not invited.

[23]

Mr. Miller replied that he saw Mr. Reyes with the group

of Dr. Filart.[24] As Dr. Filart was engaged in conversation with another guest
and as Ms. Lim did not want to interrupt, she inquired instead from the sister
of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did not invite Mr.
Reyes.[25] Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party
as he was not invited.[26] Mr. Reyes, however, lingered prompting Ms. Lim to
inquire from Ms. Fruto who said that Mr. Reyes did not want to leave.

[27]

When

Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung
whom she later approached.[28] Believing that Captain Batung and Mr. Reyes
knew each other, Ms. Lim requested from him the same favor from Ms.
Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was
not invited.[29] Still, Mr. Reyes lingered.

When Ms. Lim spotted Mr. Reyes by

the buffet table, she decided to speak to him herself as there were no other
guests in the immediate vicinity.[30] However, as Mr. Reyes was already helping
himself to the food, she decided to wait.[31] When Mr. Reyes went to a corner
and started to eat, Ms. Lim approached him and said: alam ninyo, hindo ho

kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin na

lang ninyo at pagkatapos kung pwede lang po umalis na kayo .[32] She then
turned around trusting that Mr. Reyes would show enough decency to leave,
but to her surprise, he began screaming and making a big scene, and even
threatened to dump food on her.[33]

also gave her version of the story to the effect that she never invited Mr.
Reyes to the party.[34] According to her, it was Mr. Reyes who volunteered to
carry the basket of fruits intended for the celebrant as he was likewise going
to take the elevator, not to the penthouse but to Altitude 49.[35] When they
reached the penthouse, she reminded Mr. Reyes to go down as he was not
properly dressed and was not invited.[36] All the while, she thought that Mr.
Reyes already left the place, but she later saw him at the bar talking to Col.
there

was

the celebrant to think that she invited him.[40]

After trial on the merits, the court a quo dismissed the complaint,[41] giving
more credence to the testimony of Ms. Lim that she was discreet in asking
Mr. Reyes to leave the party.

The trial court likewise ratiocinated that Mr.

Reyes assumed the risk of being thrown out of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a guest of
Mr. Tsuruoka, the birthday celebrant.

He assumed the risk of being asked to

leave for attending a party to which he was not invited by the host.
Damages are pecuniary consequences which the law imposes for the breach
of some duty or the violation of some right.

Thus, no recovery can be had

against defendants Nikko Hotel and Ruby Lim because he himself was at fault
(Garciano v. Court of Appeals, 212 SCRA 436).

He knew that it was not the

party of defendant Violeta Filart even if she allowed him to join her and took
responsibility for his attendance at the party.

His action against defendants

Nikko Hotel and Ruby Lim must therefore fail.[42]

On appeal, the Court of Appeals reversed the ruling of the trial court as it
found more commanding of belief the testimony of Mr. Reyes that Ms. Lim
ordered him to leave in a loud voice within hearing distance of several
guests:
In putting appellant in a very embarrassing situation, telling him that he
should not finish his food and to leave the place within the hearing distance
of other guests is an act which is contrary to morals, good customs . . ., for
which appellees should compensate the appellant for the damage suffered by

Dr. Violeta Filart, the third defendant in the complaint before the lower court,

Batung.[37] Then

shouting.[38] She ignored Mr. Reyes.[39] She was embarrassed and did not want

commotion

and

she

saw

Mr.

Reyes

the latter as a consequence therefore (Art. 21, New Civil Code).

The liability

arises from the acts which are in themselves legal or not prohibited, but
contrary to morals or good customs.

Conversely, even in the exercise of a

formal right, [one] cannot with impunity intentionally cause damage to another
in a manner contrary to morals or good customs.[43]
The Court of Appeals likewise ruled that the actuation of Ms. Lim in
approaching several people to inquire into the presence of Mr. Reyes exposed
the latter to ridicule and was uncalled for as she should have approached Dr.
Filart first and both of them should have talked to Mr. Reyes in private:

Said acts of appellee Lim are uncalled for.

What should have been done by

HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE

appellee Lim was to approach appellee Mrs. Filart and together they should

WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA

have told appellant Reyes in private that the latter should leave the party as

COULD NOT HAVE SUFFERED SUCH HUMILIATION, WERE IT NOT FOR DR.

the celebrant only wanted close friends around.

FILARTS INVITATION

It is necessary that Mrs.

Filart be the one to approach appellant because it was she who invited
appellant in that occasion.

Were it not for Mrs. Filarts invitation, appellant

could not have suffered such humiliation.

For that, appellee Filart is equally

liable.

III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS
REGARDS THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION

. . .

OF AMAY BISAYA

The acts of [appellee] Lim are causes of action which are predicated upon

IV.

mere rudeness or lack of consideration of one person, which calls not only
protection of human dignity but respect of such dignity.

Under Article 20 of

the Civil Code, every person who violates this duty becomes liable for
damages, especially if said acts were attended by malice or bad faith.
faith does not simply connote bad judgment or simple negligence.

Bad

It imports

a dishonest purpose or some moral obliquity and conscious doing of a wrong,

a breach of a known duty to some motive or interest or ill-will that partakes
of the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603). [44]
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and
Dr. Violeta Filart the solidary obligation to pay Mr. Reyes (1) exemplary
damages in the amount of Two Hundred Thousand Pesos (P200,000); (2)
moral damages in the amount of Two Hundred Thousand Pesos (P200,000);
and (3) attorneys fees in the amount of Ten Thousand Pesos (P10,000). [45] On
motion for reconsideration, the Court of Appeals affirmed its earlier decision

IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF

HIS POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO
EVIDENCE WAS PRESENTED IN THIS REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE
APPELLANTS BRIEF, THEREBY DEPARTING FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine
of volenti non fit injuria, they cannot be made liable for damages as
respondent Reyes assumed the risk of being asked to leave (and being
embarrassed and humiliated in the process) as he was a gate-crasher.

as the argument raised in the motion had been amply discussed and passed

The doctrine of volenti non fit injuria (to which a person assents is not

upon in the decision sought to be reconsidered.[46]

esteemed in law as injury[47]) refers to self-inflicted injury[48] or to the consent

Thus, the instant petition for review.

Hotel Nikko and Ruby Lim contend that

the Court of Appeals seriously erred in

I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING
THAT BY ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.

to injury[49] which precludes the recovery of damages by one who has

knowingly and voluntarily exposed himself to danger, even if he is not
negligent in doing so.[50] As formulated by petitioners, however, this doctrine
does not find application to the case at bar because even if respondent
Reyes assumed the risk of being asked to leave the party, petitioners, under
Articles 19 and 21 of the New Civil Code, were still under obligation to treat
him fairly in order not to expose him to unnecessary ridicule and shame.

Thus, the threshold issue is whether or not Ruby Lim acted abusively in

celebrant, her former boss.

asking Roberto Reyes, a.k.a. Amay Bisaya, to leave the party where he was

Mr. Reyes would certainly reflect badly on Ms. Lims ability to follow the

not invited by the celebrant thereof thereby becoming liable under Articles 19

instructions of the celebrant to invite only his close friends and some of the

and 21 of the Civil Code.

hotels personnel.

Parenthetically, and if Ruby Lim were so liable,

whether or not Hotel Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable
conclusions concerning the same facts and evidence of the case, this Court is
left without choice but to use its latent power to review such findings of
facts.

Indeed, the general rule is that we are not a trier of facts as our

Mr. Reyes, upon whom the burden rests to prove that

indeed Ms. Lim loudly and rudely ordered him to leave, could not offer any
satisfactory explanation why Ms. Lim would do that and risk ruining a formal
and intimate affair.

On the contrary, Mr. Reyes, on cross-examination, had

unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she
was very close.

Close enough for him to kiss:

jurisdiction is limited to reviewing and revising errors of law. [51] One of the

Q:

exceptions to this general rule, however, obtains herein as the findings of the

were at the buffet table?

Court of Appeals are contrary to those of the trial court. [52] The lower court
ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to leave the party
as she talked to him politely and discreetly.

The appellate court, on the

other hand, held that Ms. Lim is liable for damages as she needlessly
embarrassed Mr. Reyes by telling him not to finish his food and to leave the
place within hearing distance of the other guests.

Both courts, however, were

in agreement that it was Dr. Filarts invitation that brought Mr. Reyes to the
party.
The consequential question then is:

From an in depth review of the evidence, we find more credible the lower

And, Mr. Reyes, you testified that Miss Lim approached you while you
How close was she when she approached you?

A:

Very close because we nearly kissed each other.

Q:

And yet, she shouted for you to go down? She was that close and she

shouted?
A:

Yes. She said, wag kang kumain, hindi ka imbitado dito, bumaba ka na

lang.
Q:

Which version is credible?

To unnecessarily call attention to the presence of

So, you are testifying that she did this in a loud voice?

. . .

courts findings of fact.

A:

First, let us put things in the proper perspective.

In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr.

We are dealing with a formal party in a posh, five-star hotel,[53] for-invitationonly, thrown for the hotels former Manager, a Japanese national.

Then came

a person who was clearly uninvited (by the celebrant)[54] and who could not
just disappear into the crowd as his face is known by many, being an actor.
While he was already spotted by the organizer of the party, Ms. Lim, the very
person who generated the guest list, it did not yet appear that the celebrant
was aware of his presence.

Ms. Lim, mindful of the celebrants instruction to

keep the party intimate, would naturally want to get rid of the gate-crasher
in the most hush-hush manner in order not to call attention to a glitch in an
otherwise seamless affair and, in the process, risk the displeasure of the

Yes.

If it is not loud, it will not be heard by many.[55]

Reyes and expose him to ridicule and shame, it is highly unlikely that she
would shout at him from a very close distance.

Ms. Lim having been in the

hotel business for twenty years wherein being polite and discreet are virtues
to be emulated, the testimony of Mr. Reyes that she acted to the contrary
does not inspire belief and is indeed incredible.

Thus, the lower court was

correct in observing that

Considering the closeness of defendant Lim to plaintiff when the request for
the latter to leave the party was made such that they nearly kissed each
other, the request was meant to be heard by him only and there could have
been no intention on her part to cause embarrassment to him.

It was

plaintiffs reaction to the request that must have made the other guests aware

Ms. Lim was perfectly within her right to ask Mr. Reyes to leave.

of what transpired between them. . .

on the other hand, states:

Had plaintiff simply left the party as requested, there was no need for the

Art. 21. Any person who willfully causes loss or injury to another in a manner

police to take him out.[56]

that is contrary to morals, good customs or public policy shall compensate

Moreover, another problem with Mr. Reyess version of the story is that it is
unsupported.

It is a basic rule in civil cases that he who alleges proves.

Reyes, however, had not presented any witness to back his story up.

Mr.

Article 21,

the latter for the damage.

Article

21[65] refers

to

acts contra

bonus

mores and

has

the

following

All his

elements: (1) There is an act which is legal; (2) but which is contrary to

witnesses Danny Rodinas, Pepito Guerrero and Alexander Silva - proved only

morals, good custom, public order, or public policy; and (3) it is done

that it was Dr. Filart who invited him to the party.[57]

with intent to injure.[66]

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to

A common theme runs through Articles 19 and 21,[67] and that is, the act

which he was not invited, cannot be made liable to pay for damages under

complained of must be intentional.[68]

Articles 19 and 21 of the Civil Code.

Necessarily, neither can her employer,

Hotel Nikko, be held liable as its liability springs from that of its employee.[58]

As applied to herein case and as earlier discussed, Mr. Reyes has not shown

Article 19, known to contain what is commonly referred to as the principle of

know each other personally before the evening of 13 October 1994, thus, Mr.

abuse

Reyes had nothing to offer for an explanation for Ms. Lims alleged abusive

of

grievances.
Art. 19.

rights,[59] is

not

a panacea

for

all

human

hurts

and

social

Every person must, in the exercise of his rights and in the

performance of his duties, act with justice, give everyone his due, and observe
honesty and good faith.

had a very strong bias and prejudice against (Mr. Reyes) possibly influenced
by her associates in her work at the hotel with foreign businessmen.[69] The
lameness of this argument need not be belabored.

Suffice it to say that a

complaint based on Articles 19 and 21 of the Civil Code must necessarily fail

Elsewhere, we explained that when a right is exercised in a manner which

does not conform with the norms enshrined in Article 19 and results in
damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible.[60] The object of this article, therefore, is to
set certain standards which must be observed not only in the exercise of
ones rights but also in the performance of ones duties.[61] These standards
are the following: act with justice, give everyone his due and observe honesty
and good faith.[62] Its antithesis, necessarily, is any act evincing bad faith or
Its elements are the following:

These two people did not

conduct except the statement that Ms. Lim, being single at 44 years old,

Article 19 states:

intent to injure.

that Ms. Lim was driven by animosity against him.

(1) There is a legal right or

duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing
or injuring another.[63] When Article 19 is violated, an action for damages is
proper under Articles 20 or 21 of the Civil Code.

Article 20 pertains to

damages arising from a violation of law[64] which does not obtain herein as

if it has nothing to recommend it but innuendos and conjectures.

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was
likewise acceptable and humane under the circumstances.

In this regard, we

cannot put our imprimatur on the appellate courts declaration that Ms. Lims
act of personally approaching Mr. Reyes (without first verifying from Mrs. Filart
if indeed she invited Mr. Reyes) gave rise to a cause of action predicated
upon mere rudeness or lack of consideration of one person, which calls not
only protection of human dignity but respect of such dignity.[70] Without proof
of any ill-motive on her part, Ms. Lims act of by-passing Mrs. Filart cannot
amount to abusive conduct especially because she did inquire from Mrs.
Filarts companion who told her that Mrs. Filart did not invite Mr. Reyes. [71]

If

at all, Ms. Lim is guilty only of bad judgment which, if done with good
intentions, cannot amount to bad faith.

Not being liable for both actual and moral damages, neither can petitioners

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Lim and Hotel Nikko be made answerable for exemplary damages[72] especially
for the reason stated by the Court of Appeals.

The Court of Appeals held

Not a few of the rich people treat the poor with contempt because of the
latters lowly station in life.

This has to be limited somewhere.

democracy, such a limit must be established.

In a

Social equality is not sought by

the legal provisions under consideration, but due regard for decency and
propriety

(Code

Commission,

pp.

33-34).

And

by

way

of

example

or

correction for public good and to avert further commission of such acts,
exemplary damages should be imposed upon appellees.[73]
The fundamental fallacy in the above-quoted findings is that it runs counter
with the very facts of the case and the evidence on hand.

It is not disputed

that at the time of the incident in question, Mr. Reyes was an actor of long
standing; a co-host of a radio program over DZRH; a Board Member of the
Music Singer Composer (MUSICO) chaired by popular singer Imelda Papin; a
showbiz Coordinator of Citizen Crime Watch; and 1992 official candidate of
the KBL Party for Governor of Bohol; and an awardee of a number of
humanitarian organizations of the Philippines.[74] During his direct examination
on rebuttal, Mr. Reyes stressed that he had income[75] and nowhere did he say
otherwise.

On the other hand, the records are bereft of any information as

to the social and economic standing of petitioner Ruby Lim.

Consequently,

the conclusion reached by the appellate court cannot withstand scrutiny as it

is without basis.

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

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs. HONORABLE COURT

which Mr. Reyes might have suffered through Ms. Lims exercise of a legitimate
right done within the bounds of propriety and good faith, must be his to bear
alone.

Hotel Manila Garden is GRANTED.

The Decision of the Court of Appeals

dated 26 November 2001 and its Resolution dated 09 July 2002 are hereby
The Decision of the Regional Trial Court of

Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED.

SO ORDERED.

JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

PARAS, J.:

WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko

REVERSED and SET ASIDE.

OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA

No costs.

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

were out indicating that the electric current had been cut off in Guerrero.

both instances. (p. 27 Rollo)

Yabes instructed his boys to fish for the body of the deceased. The body was

Basically, this case involves a clash of evidence whereby both patties strive

recovered about two meters from an electric post.

for the recognition of their respective versions of the scenario from which the

In another place, at about 4:00 A.M. on that fateful date, June 29, 1967,

disputed claims originate. The respondent Court of Appeals (CA) summarized

Engineer

the evidence of the parties as follows:

Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in

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

Antonio

Juan,

Power

Plant

Engineer

of

the

National

Power

their electric meter which indicated such abnormalities as grounded or shortcircuited 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.

the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo

At about 8:10 A.M., Engr. Juan went out of the compound again on another

Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the

inspection trip. Having learned of the death of Isabel Lao Juan, he passed by

deceased. Aida and Linda walked side by side at a distance of between 5

the house of the deceased at the corner of Guerrero and M.H. del Pilar

and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay"

streets to which the body had been taken. Using the resuscitator which was a

and quickly sank into the water. The two girls attempted to help, but fear

standard equipment in his jeep and employing the skill he acquired from an in

dissuaded them from doing so because on the spot where the deceased sank

service training on resuscitation, he tried to revive the deceased. His efforts

they saw an electric wire dangling from a post and moving in snake-like

proved futile. Rigor mortis was setting in. On the left palm of the deceased,

fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out

Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met

of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at

two linemen on the way. He told them about the grounded lines of the

four meters away from her he turned back shouting that the water was

INELCO In the afternoon of the same day, he went on a third inspection trip

grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes

preparatory to the restoration of power. The dangling wire he saw on

at the YJ Cinema building which was four or five blocks away.

Guerrero early in the morning of June 29, 1967 was no longer there.

When Antonio Yabes was informed by Ernesto that his mother-in law had

Many people came to the house at the corner of Guerrero and M.H. del Pilar

been electrocuted, he acted immediately. With his wife Jane, together with

after

Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request

sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat,

the police to ask the people of defendant Ilocos Norte Electric Company or

Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro

INELCO to cut off the electric current. Then the party waded to the house on

examined the body at about 8:00 A.M. on June 29, 1967. The skin was

Guerrero Street. The floodwater was receding and the lights inside the house

grayish

learning

or,

in

that

the

medical

deceased

parlance,

had

been

cyanotic,

electrocuted.

which

indicated

Among

death

the

by

electrocution. On the left palm, the doctor found an "electrically charged

A witness in the person of Dr. Antonio Briones was presented by the defense

wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About

to show that the deceased could not have died of electrocution Substantially,

the base of the thumb on the left hand was a burned wound. (Exh. C-2, pp.

the testimony of the doctor is as follows: Without an autopsy on the cadaver

102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the

of the victim, no doctor, not even a medicolegal expert, can speculate as to

cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).

the real cause of death. Cyanosis could not have been found in the body of

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, presidentmanager 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

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)

been newly-installed prior to the date in question. As a public service operator

An action for damages in the aggregate amount of P250,000 was instituted by

and in line with its business of supplying electric current to the public,

the heirs of the deceased with the aforesaid CFI on June 24, 1968. In its

defendant had installed safety devices to prevent and avoid injuries to

Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory,

persons and damage to property in case of natural calamities such as floods,

as a special defense, that the deceased could have died simply either by

typhoons, fire and others. Defendant had 12 linesmen charged with the duty

drowning or by electrocution due to negligence attributable only to herself

of making a round-the-clock check-up of the areas respectively assigned to

and not to petitioner. In this regard, it was pointed out that the deceased,

them.

without petitioner's knowledge, caused the installation of a burglar deterrent

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

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.

early morning before 6 o'clock on June 29, 1967 he passed by the

In this petition for review the petitioner assigns the following errors committed

intersection of Rizal and Guerrero Streets to switch off the street lights in

by the respondent CA:

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.

1. The respondent Court of Appeals committed grave abuse of discretion and

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

2. The respondent Court of Appeals committed grave abuse of discretion and

Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that

error in holding that the strong typhoon "Gening" which struck Laoag City and

after the deceased screamed "Ay" and sank into the water, they tried to

Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its

render some help but were overcome with fear by the sight of an electric wire

wake were not fortuitous events and did not exonerate petitioner-company

dangling from an electric post, moving in the water in a snake-like fashion

from liability for the death of Isabel Lao Juan.

(supra). The foregoing therefore justifies the respondent CA in concluding that

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", "C2") 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).

"(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

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

requisites in the case at bar.

suppressed is available only to said party (People vs. Tulale, L-7233, 18 May

The statements made relative to the startling occurrence are admitted in

question is equally available to both parties (StaplesHowe Printing Co. vs. Bldg.

evidence precisely as an exception to the hearsay rule on the grounds of

and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner

trustworthiness and necessity. "Trustworthiness" because the statements are

could have called Ernesto de la Cruz to the witness stand. This, precisely, was

made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because

Linda Alonzo Estavillo's suggestion to petitioner's counsel when she testified

such natural and spontaneous utterances are more convincing than the

on cross examination:

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

1955, 97 Phil. 953). The presumption does not operate if the evidence in

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

In times of calamities such as the one which occurred in Laoag City on the

negligence. The witnesses testified in a general way about their duties and the

night of June 28 until the early hours of June 29, 1967, extraordinary

measures which defendant usually adopts to prevent hazards to life and limb.

diligence requires a supplier of electricity to be inconstant vigil to prevent or

From these testimonies, the lower court found "that the electric lines and

avoid any probable incident that might imperil life or limb. The evidence does

other equipment of defendant corporation were properly maintained by a well-

not show that defendant did that. On the contrary, evidence discloses that

trained team of lineman, technicians and engineers working around the clock

there were no men (linemen or otherwise) policing the area, nor even manning

to insure that these equipments were in excellent condition at all times." (P.

its office. (CA Decision, pp. 24-25, Rollo)

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

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

of theemergency situation brought about by the typhoon.

electricity is an agency, subtle and deadly, the measure of care required of

The lower court made a mistake in assuming that defendant's employees

danger. The duty of exercising this high degree of diligence and care extends

worked around the clock during the occurrence of the typhoon on the night

to every place where persons have a right to be" (Astudillo vs. Manila Electric,

of June 28 and until the early morning of June 29, 1967, Engr. Antonio Juan

55 Phil. 427). The negligence of petitioner having been shown, it may not now

of the National Power Corporation affirmed that when he first set out on an

absolve itself from liability by arguing that the victim's death was solely due

inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw

to a fortuitous event. "When an act of God combines or concurs with the

grounded and disconnected electric lines of the defendant but he saw

negligence of the defendant to produce an injury, the defendant is liable if

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

the injury would not have resulted but for his own negligent conduct or

defendant contradict the finding of the lower court. Conrado Asis, defendant's
electrical engineer, testified that he conducted a general inspection of the
franchise area of the INELCO only on June 30, 1967, the day following the
typhoon. The reason he gave for the delay was that all their vehicles were
submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his
office at 8:00 A.M. onJune 30 and after briefing his men on what to do they
started out. (p. 338, lbid) One or two days after the typhoon, the INELCO
people heard "rumors that someone was electrocuted" so he sent one of his
men to the place but his man reported back that there was no damaged wire.
(p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr.
Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan came
to the INELCO plant and asked the INELCO people to inspect their lines. He
went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00
noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant,
testified that at about 6:00 on June 29, 1967 the typhoon ceased. At that
time, he was at the main building of the Divine Word College of Laoag where
he had taken his family for refuge. (pp. 510-511, Ibid.)

electric companies must be commensurate with or proportionate to the

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

. . .even before June 28 the people in Laoag were already alerted about the

had a right to be without regard to petitioner's consent as she was on her

impending typhoon, through radio announcements. Even the fire department of

way to protect her merchandise. Hence, private respondents, as heirs, may not

the city announced the coming of the big flood. (pp. 532-534, TSN, March 13,

be barred from recovering damages as a result of the death caused by

1975) At the INELCO irregularities in the flow of electric current were noted

petitioner's negligence (ibid., p. 1165, 1166).

because "amperes of the switch volts were moving". And yet, despite these

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

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)

life and limb. Likewise, the said employees of petitioner categorically disowned

From the preceding, We find that the CA did not abuse its discretion in

the fatal wires as they appear in two photographs taken on the afternoon of

reversing the trial court's findings but tediously considered the factual

June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked

circumstances at hand pursuant to its power to review questions of fact

to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the

raised from the decision of the Regional Trial Court, formerly the Court of

CA properly held, "(t)he finding of the lower court ... was based on what the

First Instance (see sec. 9, BP 129).

defendant's employees were supposed to do, not on what they actually did or

the date in question, and not on the occasion of

the emergency situation brought about by the typhoon" (CA Decision, p. 25,
failed

to

do on

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

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.

company" (supra).

Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the

"When a storm occurs that is liable to prostrate the wires, due care requires

to P48,229.45.

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:

said award of P12,000 to P30,000, thus, increasing the total actual damages

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

D E C I S I ON

AFFIRMED.

MENDOZA, J.:

SO ORDERED.

This is a petition for review on certiorari of the decision[1] of the Court of

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

Regional Trial Court, Branch 36, Dumaguete City, and awarding damages

Appeals, dated March 31, 1991, reversing the contrary decision of the
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action
for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 oclock in the morning of August 23, 1989, private respondent Eliza
Jujeurche G. Sunga, then a college freshman majoring in Physical Education at
the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a wooden
stool at the back of the door at the rear end of the vehicle. Sclaw
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to
let a passenger off. As she was seated at the rear of the vehicle, Sunga gave
way to the outgoing passenger. Just as she was doing so, an Isuzu truck
driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear
portion of the jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the fracture, long leg circular casting,
and case wedging were done under sedation. Her confinement in the hospital
lasted from August 23 to September 7, 1989. Her attending physician, Dr.
Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a
cast for a period of three months and would have to ambulate in crutches
during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas,
alleging violation of the contract of carriage by the former in failing to
exercise the diligence required of him as a common carrier. Calalas, on the

vs. COURT OF APPEALS, ELIZA JUJEURCHE

SUNGA and FRANCISCO SALVA, respondents.
VICENTE

CALALAS, petitioner,

other hand, filed a third-party complaint against Francisco Salva, the owner of
the Isuzu truck. Korte

The lower court rendered judgment against Salva as third-party defendant and

The argument that Sunga is bound by the ruling in Civil Case No. 3490

absolved Calalas of liability, holding that it was the driver of the Isuzu truck

finding the driver and the owner of the truck liable for quasi-delict ignores the

who was responsible for the accident. It took cognizance of another case

fact that she was never a party to that case and, therefore, the principle

(Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-

of res judicata does not apply. Missdaa

delict, in which Branch 37 of the same court held Salva and his driver Verena
jointly liable to Calalas for the damage to his jeepney. Rtcspped

Nor are the issues in Civil Case No. 3490 and in the present case the same.

On appeal to the Court of Appeals, the ruling of the lower court was reversed

were liable for quasi-delict for the damage caused to petitioners jeepney. On

on the ground that Sungas cause of action was based on a contract of

the other hand, the issue in this case is whether petitioner is liable on his

carriage, not quasi-delict, and that the common carrier failed to exercise the

contract

The issue in Civil Case No. 3490 was whether Salva and his driver Verena

third-party complaint against Salva and adjudged Calalas liable for damages

of carriage. The first, quasi-delict, also known as culpa

aquiliana or culpa extra contractual, has as its source the negligence of the
tortfeasor. The second, breach of contract or culpa contractual, is premised

to Sunga. The dispositive portion of its decision reads:

upon the negligence in the performance of a contractual obligation.

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE,

Consequently, in quasi-delict, the negligence or fault should be clearly

and another one is entered ordering defendant-appellee Vicente Calalas to

established because it is the basis of the action, whereas in breach of

pay plaintiff-appellant:

contract, the action can be prosecuted merely by proving the existence of the

diligence required under the Civil Code. The appellate court dismissed the

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and

contract and the fact that the obligor, in this case the common carrier, failed
to transport his passenger safely to his destination.[2] In case of death or
injuries to passengers, Art. 1756 of the Civil Code provides that common
carriers are presumed to have been at fault or to have acted negligently
unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the

(4) P1,000.00 as expenses of litigation; and

common carrier the burden of proof. Slxmis

(5) to pay the costs.

There is, thus, no basis for the contention that the ruling in Civil Case No.

SO ORDERED.

jeepney, should be binding on Sunga. It is immaterial that the proximate cause

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
that the negligence of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would be to make the common
carrier an insurer of the safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the ground
that it is not supported by evidence. Sdaadsc
The petition has no merit.

3490, finding Salva and his driver Verena liable for the damage to petitioners
of the collision between the jeepney and the truck was the negligence of the
truck driver. The doctrine of proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of contract. The doctrine is a
device for imputing liability to a person where there is no relation between
him and another party. In such a case, the obligation is created by law itself.
But, where there is a pre-existing contractual relation between the parties, it is
the parties themselves who create the obligation, and the function of the law
is merely to regulate the relation thus created. Insofar as contracts of
carriage are concerned, some aspects regulated by the Civil Code are those
respecting the diligence required of common carriers with regard to the safety

of passengers as well as the presumption of negligence in cases of death or

while discharging or taking on passengers or loading or unloading freight,

injury to passengers. It provides: Slxsc

obstruct the free passage of other vehicles on the highway.

Art. 1733. Common carriers, from the nature of their business and for reasons

Second, it is undisputed that petitioners driver took in more passengers than

of public policy, are bound to observe extraordinary diligence in the vigilance

the allowed seating capacity of the jeepney, a violation of 32(a) of the same

over the goods and for the safety of the passengers transported by them,

law. It provides: Mesm

according to all the circumstances of each case.

Exceeding registered capacity. - No person operating any motor vehicle shall

Such extraordinary diligence in the vigilance over the goods is further

allow more passengers or more freight or cargo in his vehicle than its

expressed in articles 1734, 1735, and 1746, Nos. 5,6, and 7, while the

registered capacity.

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

The fact that Sunga was seated in an "extension seat" placed her in a peril

Art. 1755. A common carrier is bound to carry the passengers safely as far

only was petitioner unable to overcome the presumption of negligence

as human care and foresight can provide, using the utmost diligence of very

imposed on him for the injury sustained by Sunga, but also, the evidence

cautious persons, with due regard for all the circumstances.

shows he was actually negligent in transporting passengers. Calrky

Art. 1756. In case of death of or injuries to passengers, common carriers are

We find it hard to give serious thought to petitioners contention that Sungas

presumed to have been at fault or to have acted negligently, unless they

taking an "extension seat" amounted to an implied assumption of risk. It is

prove that they observed extraordinary diligence as prescribed by articles

akin to arguing that the injuries to the many victims of the tragedies in our

1733 and 1755.

seas should not be compensated merely because those passengers assumed

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

greater than that to which the other passengers were exposed. Therefore, not

a greater risk of drowning by boarding an overloaded ferry. This is also true

of petitioners contention that the jeepney being bumped while it was
improperly parked constitutes caso fortuito. A caso fortuito is an event which
could not be foreseen, or which, though foreseen, was inevitable.[3] This
requires that the following requirements be present: (a) the cause of the
breach is independent of the debtors will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it impossible for the debtor to
fulfill his obligation in a normal manner, and (d) the debtor did not take part
in causing the injury to the creditor.[4] Petitioner should have foreseen the
danger of parking his jeepney with its body protruding two meters into the
highway. Kycalr
Finally, petitioner challenges the award of moral damages alleging that it is
excessive and without basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated: Kyle

Plaintiff-appellant at the time of the accident was a first-year college student

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and

in that school year 1989-1990 at the Silliman University, majoring in Physical

its

Education. Because of the injury, she was not able to enroll in the second

MODIFICATION that the award of moral damages is DELETED.

semester of that school year. She testified that she had no more intention of
continuing with her schooling, because she could not walk and decided not to
pursue her degree, major in Physical Education "because of my leg which has
a defect already."
Plaintiff-appellant likewise testified that even while she was under confinement,
she cried in pain because of her injured left foot. As a result of her injury,
the Orthopedic Surgeon also certified that she has "residual bowing of the
fracture side." She likewise decided not to further pursue Physical Education
as her major subject, because "my left leg x x x has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of
the injuries that she suffered. Under Article 2219 of the Civil Code, she is
entitled to recover moral damages in the sum of P50,000.00, which is fair, just
and reasonable.
As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code.[5] As an exception, such damages are
recoverable: (1) in cases in which the mishap results in the death of a
passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil
Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith,
as provided in Art. 2220.[6]
In this case, there is no legal basis for awarding moral damages since there
was no factual finding by the appellate court that petitioner acted in bad faith
in the performance of the contract of carriage. Sungas contention that
petitioners admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her
to the hospital does not imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely implied recognition by
Verena that he was the one at fault for the accident.

resolution,

dated

September

11,

1995,

SO ORDERED.

Bellosillo, (Chairman), and Buena, JJ., concur.

Quisumbing, and De Leon, Jr., JJ., on leave.

are

AFFIRMED,

with

the