EN BANC The question presented for decision is whether or not the defendant in
G.R. No. L-12219 March 15, 1918 maneuvering his car in the manner above described was guilty of negligence such
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant,
Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused by
an automobile driven by the defendant. From a judgment of the Court of First
Instance of the Province of La Union absolving the defendant from liability the
plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on
December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears
that upon the occasion in question the plaintiff was riding on his pony over said
bridge. Before he had gotten half way across, the defendant approached from the
opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and
blew his horn to give warning of his approach. He continued his course and after
he had taken the bridge he gave two more successive blasts, as it appeared to him
that the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the rapidity
of the approach, he pulled the pony closely up against the railing on the right side
of the bridge instead of going to the left. He says that the reason he did this was
that he thought he did not have sufficient time to get over to the other side. The
bridge is shown to have a length of about 75 meters and a width of 4.80 meters.
As the automobile approached, the defendant guided it toward his left, that being
the proper side of the road for the machine. In so doing the defendant assumed
that the horseman would move to the other side. The pony had not as yet
exhibited fright, and the rider had made no sign for the automobile to stop.
Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach
directly toward the horse without diminution of speed. When he had gotten quite
near, there being then no possibility of the horse getting across to the other side,
the defendant quickly turned his car sufficiently to the right to escape hitting the
horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened
and turned its body across the bridge with its head toward the railing. In so doing,
it as struck on the hock of the left hind leg by the flange of the car and the limb
was broken. The horse fell and its rider was thrown off with some violence. From
the evidence adduced in the case we believe that when the accident occurred the
free space where the pony stood between the automobile and the railing of the
bridge was probably less than one and one half meters. As a result of its injuries
the horse died. The plaintiff received contusions which caused temporary
unconsciousness and required medical attention for several days.
as gives rise to a civil obligation to repair the damage done; and we are of the
opinion that he is so liable. As the defendant started across the bridge, he had
the right to assume that the horse and the rider would pass over to the proper
side; but as he moved toward the center of the bridge it was demonstrated to his
eyes that this would not be done; and he must in a moment have perceived that it
was too late for the horse to cross with safety in front of the moving vehicle. In
the nature of things this change of situation occurred while the automobile was
yet some distance away; and from this moment it was not longer within the power
of the plaintiff to escape being run down by going to a place of greater safety.
The control of the situation had then passed entirely to the defendant; and it was
his duty either to bring his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass sufficiently far away
from the horse to avoid the danger of collision. Instead of doing this, the
defendant ran straight on until he was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse had not yet exhibited fright.
But in view of the known nature of horses, there was an appreciable risk that, if
the animal in question was unacquainted with automobiles, he might get exited
and jump under the conditions which here confronted him. When the defendant
exposed the horse and rider to this danger he was, in our opinion, negligent in the
eye of the law.
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use
that person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience
and in view of the facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which are before them or known
to them. They are not, and are not supposed to be, omniscient of the future.
Hence they can be expected to take care only when there is something before
them to suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If so, it
was the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in
these terms, the proper criterion for determining the existence of negligence in a
given case is this: Conduct is said to be negligent when a prudent man in the
position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think
that negligence is clearly established. A prudent man, placed in the position of
the defendant, would in our opinion, have recognized that the course which he
was pursuing was fraught with risk, and would therefore have foreseen harm to
the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he
was guilty of antecedent negligence in planting himself on the wrong side of the
road. But as we have already stated, the defendant was also negligent; and in
such case the problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the two parties
were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances
the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to
the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359) should perhaps be mentioned in this connection. This Court there held that
while contributory negligence on the part of the person injured did not constitute
a bar to recovery, it could be received in evidence to reduce the damages which
would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the company's yards
located not far away. The rails were conveyed upon cars which were hauled along
a narrow track. At certain spot near the water's edge the track gave way by
reason of the combined effect of the weight of the car and the insecurity of the
road bed. The car was in consequence upset; the rails slid off; and the plaintiff's
leg was caught and broken. It appeared in evidence that the accident was due to
the effects of the typhoon which had dislodged one of the supports of the track.
The court found that the defendant company was negligent in having failed to
repair the bed of the track and also that the plaintiff was, at the moment of the
accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the track
in proper repair nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen the
defendant's negligence in that case consisted in an omission only. The liability of
the company arose from its responsibility for the dangerous condition of its track.
In a case like the one now before us, where the defendant was actually present
and operating the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the respective parties in order
to apportion the damage according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was in this case the
immediate and determining cause of the accident and that the antecedent
negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of the
action had been previously adjudicated in the court of a justice of the peace. In
this connection it appears that soon after the accident in question occurred, the
plaintiff caused criminal proceedings to be instituted before a justice of the
peace charging the defendant with the infliction of serious injuries (lesiones
graves). At the preliminary investigation the defendant was discharged by the
magistrate and the proceedings were dismissed. Conceding that the acquittal of
the defendant at the trial upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the question of his civil liability
arising from negligence -- a point upon which it is unnecessary to express an
opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be
reversed, and judgment is her rendered that the plaintiff recover of the
defendant the sum of two hundred pesos (P200), with costs of other instances.
The sum here awarded is estimated to include the value of the horse, medical
expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as not to be
recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.
Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in
this case. I do so because of my understanding of the "last clear chance" rule of
the law of negligence as particularly applied to automobile accidents. This rule
cannot be invoked where the negligence of the plaintiff is concurrent with that of
the defendant. Again, if a traveler when he reaches the point of collision is in a
situation to extricate himself and avoid injury, his negligence at that point will
prevent a recovery. But Justice Street finds as a fact that the negligent act of the
interval of time, and that at the moment the plaintiff had no opportunity to avoid
the accident. Consequently, the "last clear chance" rule is applicable. In other
words, when a traveler has reached a point where he cannot extricate himself
and vigilance on his part will not avert the injury, his negligence in reaching that
position becomes the condition and not the proximate cause of the injury and will
not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
 EN BANC
G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted
by David Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street
railway and an electric light system in the city of Manila. Its power plant is
situated at the eastern end of a small island in the Pasig River within the city of
Manila, known as the Isla del Provisor. The power plant may be reached by boat
or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.
The plaintiff, David Taylor, was at the time when he received the injuries
complained of, 15 years of age, the son of a mechanical engineer, more mature
than the average boy of his age, and having considerable aptitude and training in
mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols,
about 12 years of age, crossed the footbridge to the Isla del Provisor, for the
purpose of visiting one Murphy, an employee of the defendant, who and promised
to make them a cylinder for a miniature engine. Finding on inquiry that Mr.
Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's premises. The visit
was made on a Sunday afternoon, and it does not appear that they saw or spoke
to anyone after leaving the power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the
defendant's coal, they walked across the open space in the neighborhood of the
place where the company dumped in the cinders and ashes from its furnaces.
Here they found some twenty or thirty brass fulminating caps scattered on the
ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it
may be discharged by the use of electricity. They are intended for use in the
explosion of blasting charges of dynamite, and have in themselves a considerable
explosive power. After some discussion as to the ownership of the caps, and their
right to take them, the boys picked up all they could find, hung them on stick, of
which each took end, and carried them home. After crossing the footbridge, they
met a little girl named Jessie Adrian, less than 9 years old, and all three went to
the home of the boy Manuel. The boys then made a series of experiments with the
caps. They trust the ends of the wires into an electric light socket and obtained
no result. They next tried to break the cap with a stone and failed. Manuel looked
for a hammer, but could not find one. Then they opened one of the caps with a
knife, and finding that it was filled with a yellowish substance they got matches,
and David held the cap while Manuel applied a lighted match to the contents. An
explosion followed, causing more or less serious injuries to all three. Jessie, who
when the boys proposed putting a match to the contents of the cap, became
frightened and started to run away, received a slight cut in the neck. Manuel had
his hand burned and wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his right eye to such an
extent as to the necessitate its removal by the surgeons who were called in to
care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be
on the defendant's premises, nor how long they had been there when the boys
found them. It appears, however, that some months before the accident, during
the construction of the defendant's plant, detonating caps of the same size and
kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about
the time when these caps were found, similarly caps were in use in the
construction of an extension of defendant's street car line to Fort William
McKinley. The caps when found appeared to the boys who picked them up to have
been lying for a considerable time, and from the place where they were found
would seem to have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit
or prevent visitors from entering and walking about its premises unattended,
when they felt disposed so to do. As admitted in defendant counsel's brief, "it is
undoubtedly true that children in their play sometimes crossed the foot bridge to
the islands;" and, we may add, roamed about at will on the uninclosed premises
of the defendant, in the neighborhood of the place where the caps were found.
There is evidence that any effort ever was made to forbid these children from
visiting the defendant company's premises, although it must be assumed that the
company or its employees were aware of the fact that they not infrequently did
so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy
on one of the interisland transports. Later he took up work in his father's office,
learning mechanical drawing and mechanical engineering. About a month after his
accident he obtained employment as a mechanical draftsman and continued in
that employment for six months at a salary of P2.50 a day; and it appears that he
was a boy of more than average intelligence, taller and more mature both
mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel.
The only questions of fact which are seriously disputed are plaintiff's allegations
that the caps which were found by plaintiff on defendant company's premises
were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on
its premises at the point where they were found.
The evidence in support of these allegations is meager, and the defendant
company, apparently relying on the rule of law which places the burden of proof
of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists
that plaintiff failed in his proof. We think, however, that plaintiff's evidence is
sufficient to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or
less extensively, on the McKinley extension of the defendant company's track;
that some of these caps were used in blasting a well on the company's premises a
few months before the accident; that not far from the place where the caps were
found the company has a storehouse for the materials, supplies and so forth, used
by it in its operations as a street railway and a purveyor of electric light; and that
the place, in the neighborhood of which the caps were found, was being used by
the company as a sort of dumping ground for ashes and cinders. Fulminating caps
or detonators for the discharge by electricity of blasting charges by dynamite are
not articles in common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the contrary, we think that
the discovery of twenty or thirty of these caps at the place where they were
found by the plaintiff on defendant's premises fairly justifies the inference that
the defendant company was either the owner of the caps in question or had the
caps under its possession and control. We think also that the evidence tends to
disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the
expectation that they would be buried out of the sight by the ashes which it was
engaged in dumping in that neighborhood, they being old and perhaps defective;
and, however this may be, we are satisfied that the evidence is sufficient to
sustain a finding that the company or some of its employees either willfully or
through an oversight left them exposed at a point on its premises which the
general public, including children at play, where not prohibited from visiting, and
over which the company knew or ought to have known that young boys were likely
to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the
facts on which these conclusions are based by intimidating or rather assuming that
the blasting work on the company's well and on its McKinley extension was done
by contractors. It was conclusively proven, however, that while the workman
employed in blasting the well was regularly employed by J. G. White and Co., a
firm of contractors, he did the work on the well directly and immediately under
the supervision and control of one of defendant company's foremen, and there is
no proof whatever in the record that the blasting on the McKinley extension was
done by independent contractors. Only one witness testified upon this point, and
while he stated that he understood that a part of this work was done by contract,
he could not say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged contractor to
the defendant company. The fact having been proven that detonating caps were
more or less extensively employed on work done by the defendant company's
directions and on its behalf, we think that the company should have introduced
the necessary evidence to support its contention if it wished to avoid the not
unreasonable inference that it was the owner of the material used in these
operations and that it was responsible for tortious or negligent acts of the agents
employed therein, on the ground that this work had been intrusted
to independent contractors as to whose acts the maxim respondent
superior should not be applied. If the company did not in fact own or make use of
caps such as those found on its premises, as intimated by counsel, it was a very
simple matter for it to prove that fact, and in the absence of such proof we think
that the other evidence in the record sufficiently establishes the contrary, and
justifies the court in drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by the company
or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in
plaintiff's favor, upon the provisions of article 1089 of the Civil Code read
together with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-
contracts, and illicit acts and omissions or by those in which any kind of
fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the damage
so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for those
of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable
for damages caused by their employees in the service of the branches in
which the latter may be employed or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with
due diligence, and for kindling of explosive substances which may not
have been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his
contention that the facts proven at the trial do not established the liability of the
defendant company under the provisions of these articles, and since we agree
with this view of the case, it is not necessary for us to consider the various
questions as to form and the right of action (analogous to those raised in the case
of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would,
perhaps, be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the
generally accepted doctrine in the United States, the plaintiff in an action such as
that under consideration, in order to establish his right to a recovery, must
establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some
person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the
damage.
These proposition are, of course, elementary, and do not admit of discussion, the
real difficulty arising in the application of these principles to the particular facts
developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps
been left exposed at the point where they were found, or if their owner had
exercised due care in keeping them in an appropriate place; but it is equally clear
that plaintiff would not have been injured had he not, for his own pleasure and
convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and
carried away the property of the defendant which he found on its premises, and
had he not thereafter deliberately cut open one of the caps and applied a match
to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and
inexperience, his entry upon defendant company's premises, and the intervention
of his action between the negligent act of defendant in leaving the caps exposed
on its premises and the accident which resulted in his injury should not be held to
have contributed in any wise to the accident, which should be deemed to be the
direct result of defendant's negligence in leaving the caps exposed at the place
where they were found by the plaintiff, and this latter the proximate cause of the
accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down
in many of the courts of last resort in the United States in the cases known as the
"Torpedo" and "Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is
liable for an injury received by an infant of tender years, who from mere idle
curiosity, or for the purposes of amusement, enters upon the railroad company's
premises, at a place where the railroad company knew, or had good reason to
suppose, children would be likely to come, and there found explosive signal
torpedoes left unexposed by the railroad company's employees, one of which
when carried away by the visitor, exploded and injured him; or where such infant
found upon the premises a dangerous machine, such as a turntable, left in such
condition as to make it probable that children in playing with it would be exposed
to accident or injury therefrom and where the infant did in fact suffer injury in
playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds
the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the
principal question was whether a railroad company was liable for in injury
received by an infant while upon its premises, from idle curiosity, or for purposes
of amusement, if such injury was, under circumstances, attributable to the
negligence of the company), the principles on which these cases turn are that
"while a railroad company is not bound to the same degree of care in regard to
mere strangers who are unlawfully upon its premises that it owes to passengers
conveyed by it, it is not exempt from responsibility to such strangers for injuries
arising from its negligence or from its tortious acts;" and that "the conduct of an
infant of tender years is not to be judged by the same rule which governs that of
adult. While it is the general rule in regard to an adult that to entitle him to
recover damages for an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in regard to an infant
of tender years. The care and caution required of a child is according to his
maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously
controverted and sharply criticized in several state courts, and the supreme court
of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated
and disapproved the doctrine of the Turntable cases, especially that laid down
in Railroad Company vs. Stout, in a very able decision wherein it held, in the
language of the syllabus: (1) That the owner of the land is not liable to
trespassers thereon for injuries sustained by them, not due to his wanton or
willful acts; (2) that no exception to this rule exists in favor of children who are
injured by dangerous machinery naturally calculated to attract them to the
premises; (3) that an invitation or license to cross the premises of another can not
be predicated on the mere fact that no steps have been taken to interfere with
such practice; (4) that there is no difference between children and adults as to
the circumstances that will warrant the inference of an invitation or a license to
enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were
indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad
Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in
Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United
States, citing and approving the doctrine laid down in England in the leading case
of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in
accord with that announced in the Railroad Company vs. Stout (supra), and the
Supreme Court of the United States, in a unanimous opinion delivered by Justice
Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the
doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical
analysis and review of many of the adjudged cases, both English and American,
formally declared that it adhered "to the principles announced in the case
of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as
follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own
pleasure, entered upon and visited the defendant's premises, without defendant's
express permission or invitation, and while there, was by accident injured by
falling into a burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or
had reason the interest or curiosity of passers-by. On these facts the court held
that the plaintiff could not be regarded as a mere trespasser, for whose safety
and protection while on the premises in question, against the unseen danger
referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the
principles involved to the facts in that case, because what is said there is
strikingly applicable in the case at bar, and would seem to dispose of defendant's
contention that, the plaintiff in this case being a trespasser, the defendant
company owed him no duty, and in no case could be held liable for injuries which
would not have resulted but for the entry of plaintiff on defendant's premises.
 We adhere to the principles announced in Railroad Co. vs. Stout (supra).
Applied to the case now before us, they require us to hold that the
defendant was guilty of negligence in leaving unguarded the slack pile,
made by it in the vicinity of its depot building. It could have forbidden
all persons from coming to its coal mine for purposes merely of curiosity
and pleasure. But it did not do so. On the contrary, it permitted all,
without regard to age, to visit its mine, and witness its operation. It
knew that the usual approach to the mine was by a narrow path skirting
its slack pit, close to its depot building, at which the people of the
village, old and young, would often assemble. It knew that children were
in the habit of frequenting that locality and playing around the shaft
house in the immediate vicinity of the slack pit. The slightest regard for
the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was
concealed (except when snow, wind, or rain prevailed) a mass of burning
coals into which a child might accidentally fall and be burned to death.
Under all the circumstances, the railroad company ought not to be heard
to say that the plaintiff, a mere lad, moved by curiosity to see the mine,
in the vicinity of the slack pit, was a trespasser, to whom it owed no
duty, or for whose protection it was under no obligation to make
provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a
highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his
neighbor's dogs be so attracted and thereby injured, an action on the
case would lie. "What difference," said Lord Ellenborough, C.J., "is there
in reason between drawing the animal into the trap by means of his
instinct which he can not resist, and putting him there by manual force?"
What difference, in reason we may observe in this case, is there between
an express license to the children of this village to visit the defendant's
coal mine, in the vicinity of its slack pile, and an implied license,
resulting from the habit of the defendant to permit them, without
objection or warning, to do so at will, for purposes of curiosity or
pleasure? Referring it the case of Townsend vs. Wathen, Judge
Thompson, in his work on the Law of Negligence, volume 1, page 305,
note, well says: "It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with stinking
meat, so that his neighbor's dog attracted by his natural instinct, might
run into it and be killed, and which would exempt him from liability for
the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and
tempted to intermeddle with it by instincts equally strong, might thereby
be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the
case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike
instincts and impulses; and others who are chargeable with a duty of
care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in
their immature judgment might naturally suppose they were at liberty to
handle or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of
implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an
implied license might sometimes arise when it would not on behalf of
others. Thus leaving a tempting thing for children to play with exposed,
where they would be likely to gather for that purpose, may be equivalent
to an invitation to them to make use of it; and, perhaps, if one were to
throw away upon his premises, near the common way, things tempting to
children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion
in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs.
McDonald (supra) is not less cogent and convincing in this jurisdiction than in that
wherein those cases originated. Children here are actuated by similar childish
instincts and impulses. Drawn by curiosity and impelled by the restless spirit of
youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything
which arouses the attention of the young and inquiring mind, will draw them to
the neighborhood as inevitably as does the magnet draw the iron which comes
within the range of its magnetic influence. The owners of premises, therefore,
whereon things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner knows or ought
to know children are likely to roam about for pastime and in play, " must
calculate upon this, and take precautions accordingly." In such cases the owner of
the premises can not be heard to say that because the child has entered upon his
premises without his express permission he is a trespasser to whom the owner
owes no duty or obligation whatever. The owner's failure to take reasonable
precautions to prevent the child from entering his premises at a place where he
knows or ought to know that children are accustomed to roam about of to which
their childish instincts and impulses are likely to attract them is at least
equivalent to an implied license to enter, and where the child does enter under
such conditions the owner's failure to take reasonable precautions to guard the
child against injury from unknown or unseen dangers, placed upon such premises
by the owner, is clearly a breach of duty, responsible, if the child is actually
injured, without other fault on its part than that it had entered on the premises
of a stranger without his express invitation or permission. To hold otherwise
would be expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which
they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is
contention that a man has a right to do what will with his own property or that
children should be kept under the care of their parents or guardians, so as to
prevent their entering on the premises of others is of sufficient weight to put in
doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to
injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No.
5060, decided January 26, 1910), and except as to infants of very tender years it
would be absurd and unreasonable in a community organized as is that in which
we lived to hold that parents or guardian are guilty of negligence or imprudence
in every case wherein they permit growing boys and girls to leave the parental
roof unattended, even if in the event of accident to the child the negligence of
the parent could in any event be imputed to the child so as to deprive it a right to
recover in such cases — a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property
without defendant's express invitation or permission would not have relieved
defendant from responsibility for injuries incurred there by plaintiff, without
other fault on his part, if such injury were attributable to the negligence of the
defendant, we are of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its premises was not
the proximate cause of the injury received by the plaintiff, which therefore was
not, properly speaking, "attributable to the negligence of the defendant," and, on
the other hand, we are satisfied that plaintiffs action in cutting open the
detonating cap and putting match to its contents was the proximate cause of the
explosion and of the resultant injuries inflicted upon the plaintiff, and that the
defendant, therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that
because of plaintiff's youth the intervention of his action between the negligent
act of the defendant in leaving the caps exposed on its premises and the
explosion which resulted in his injury should not be held to have contributed in
any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we
have thought proper to discuss and to consider that doctrine at length in this
decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the
general rule in regard to an adult that to entitle him to recover damages for an
injury resulting from the fault or negligence of another he must himself have been
free from fault, such is not the rule in regard to an infant of tender years. The
care and caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances of the case."
As we think we have shown, under the reasoning on which rests the doctrine of
the Turntable and Torpedo cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can be attributed to the
plaintiff, a well-grown boy of 15 years of age, because of his entry upon
defendant's uninclosed premises without express permission or invitation' but it is
wholly different question whether such youth can be said to have been free from
fault when he willfully and deliberately cut open the detonating cap, and placed
a match to the contents, knowing, as he undoubtedly did, that his action would
result in an explosion. On this point, which must be determined by "the particular
circumstances of this case," the doctrine laid down in the Turntable and Torpedo
cases lends us no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been directed, the record
discloses that the plaintiffs, in whose favor judgments have been affirmed, were
of such tender years that they were held not to have the capacity to understand
the nature or character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of
15, more mature both mentally and physically than the average boy of his age; he
had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical
draftsman thirty days after the injury was incurred; and the record discloses
throughout that he was exceptionally well qualified to take care of himself. The
evidence of record leaves no room for doubt that, despite his denials on the
witness stand, he well knew the explosive character of the cap with which he was
amusing himself. The series of experiments made by him in his attempt to
produce an explosion, as described by the little girl who was present, admit of no
other explanation. His attempt to discharge the cap by the use of electricity,
followed by his efforts to explode it with a stone or a hammer, and the final
success of his endeavors brought about by the application of a match to the
contents of the caps, show clearly that he knew what he was about. Nor can there
be any reasonable doubt that he had reason to anticipate that the explosion might
be dangerous, in view of the fact that the little girl, 9 years of age, who was
within him at the time when he put the match to the contents of the cap, became
frightened and ran away.
True, he may not have known and probably did not know the precise nature of the
explosion which might be expected from the ignition of the contents of the cap,
and of course he did not anticipate the resultant injuries which he incurred; but
he well knew that a more or less dangerous explosion might be expected from his
act, and yet he willfully, recklessly, and knowingly produced the explosion. It
would be going far to say that "according to his maturity and capacity" he
exercised such and "care and caution" as might reasonably be required of him, or
that defendant or anyone else should be held civilly responsible for injuries
incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary
capacity to understand and appreciate the nature and consequences of his own
acts, so as to make it negligence on his part to fail to exercise due care and
precaution in the commission of such acts; and indeed it would be impracticable
and perhaps impossible so to do, for in the very nature of things the question of
negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor
can be said to have such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have such ability
will necessarily vary in accordance with the varying nature of the infinite variety
of acts which may be done by him. But some idea of the presumed capacity of
infants under the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which minors are
conclusively presumed to be capable of exercising certain rights and incurring
certain responsibilities, though it can not be said that these provisions of law are
of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own
acts varies with the varying circumstances of each case. Under the provisions of
the Penal Code a minor over fifteen years of age is presumed to be capable of
committing a crime and is to held criminally responsible therefore, although the
fact that he is less than eighteen years of age will be taken into consideration as
an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a
child may, under certain circumstances, choose which parent it prefers to live
with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment
of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec.
765). And males of 14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and
understanding to be sensible of the danger to which he exposed himself when he
put the match to the contents of the cap; that he was sui juris in the sense that
his age and his experience qualified him to understand and appreciate the
necessity for the exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the injury incurred by
him must be held to have been the direct and immediate result of his own willful
and reckless act, so that while it may be true that these injuries would not have
been incurred but for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non
intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to
him through his own fault, and that he can not demand reparation
therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own
acts the grievance should be against himself and not against another.
(Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his
own acts the grievance should be against himself and not against
another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly
lays down the law touching contributory negligence in this jurisdiction,
nevertheless, the interpretation placed upon its provisions by the supreme court
of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to
recover damages from the defendant, in whole or in part, for the injuries
sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code,
fault or negligence is a source of obligation when between such
negligence and the injury there exists the relation of cause and effect;
but if the injury produced should not be the result of acts or omissions of
a third party, the latter has no obligation to repair the same, although
such acts or omission were imprudent or unlawful, and much less when it
is shown that the immediate cause of the injury was the negligence of
the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the
alleged fault or negligence is not sufficient without proof that it, and no other
cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that
title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455),
commenting on the decision of March 7, 1902 of the Civil Code, fault or
negligence gives rise to an obligation when between it and the damage
there exists the relation of cause and effect; but if the damage caused
does not arise from the acts or omissions of a third person, there is no
obligation to make good upon the latter, even though such acts or
omissions be imprudent or illegal, and much less so when it is shown that
the immediate cause of the damage has been the recklessness of the
injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden
thereof is upon the plaintiff, it is apparent that it is duty of him who
shall claim damages to establish their existence. The decisions of April 9,
1896, and March 18, July, and September 27, 1898, have especially
supported the principle, the first setting forth in detail the necessary
points of the proof, which are two: An act or omission on the part of the
person who is to be charged with the liability, and the production of the
damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or
effect between the act or omission and the damage; the latter must be
the direct result of one of the first two. As the decision of March 22,
1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily
presupposing a legal ground for imputability." (Decision of October 29,
1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was
definitely settled in this court in the maturely considered case of Rakes vs.
Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are
many cases (personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the supreme court of
Spain "define the effect to be given the negligence of its causes, though not the
principal one, and we are left to seek the theory of the civil law in the practice of
other countries;" and in such cases we declared that law in this jurisdiction to
require the application of "the principle of proportional damages," but expressly
and definitely denied the right of recovery when the acts of the injured party
were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured
party shall be considered immediate causes of the accident. The test is
simple. Distinction must be made between the accident and the injury,
between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it, independent
of it, but contributing to his own proper hurt. For instance, the cause of
the accident under review was the displacement of the crosspiece or the
failure to replace it. This produces the event giving occasion for damages
 —that is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to
himself. Had the crosspiece been out of place wholly or partly through
his act or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with
the occurrence, he contributes only to his own injury, he may recover
the amount that the defendant responsible for the event should pay for
such injury, less a sum deemed a suitable equivalent for his own
imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate
cause of the explosion, the accident which resulted in plaintiff's injury, was in his
own act in putting a match to the contents of the cap, and that having
"contributed to the principal occurrence, as one of its determining factors, he can
not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in
picking up upon defendant's premises the detonating caps, the property of
defendant, and carrying the relation of cause and effect between the negligent
act or omission of the defendant in leaving the caps exposed on its premises and
the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of
very tender years would have no effect in relieving defendant of responsibility,
but whether in view of the well-known fact admitted in defendant's brief that
"boys are snappers-up of unconsidered trifles," a youth of the age and maturity of
plaintiff should be deemed without fault in picking up the caps in question under
all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the
judgment of the court below, without costs to either party in this instance, and
ten days thereafter let the record be returned to the court wherein it originated,
where the judgment will be entered in favor of the defendant for the costs in first
instance and the complaint dismissed without day. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.

Johnson, J., concurs in the result.

Footnotes
1
Phil. Rep., 85.
 FIRST DIVISION
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA
PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of
Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of
the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorney's fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store,
Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's
branch manager, operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of
Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at
the payment and verification counter when she felt a sudden gust of wind and
heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-
wrapping counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the people around
in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate 5 issued by ZHIENETH's attending doctor described
the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt
injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L)
lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners
the reimbursement of the hospitalization, medical bills and wake and funeral
expenses 6 which they had incurred. Petitioners refused to pay. Consequently,
private respondents filed a complaint for damages, docketed as Civil Case No.
7119 wherein they sought the payment of P157,522.86 for actual damages,
P300,000 for moral damages, P20,000 for attorney's fees and an unspecified
amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries
and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in
exercising care and diligence over her daughter by allowing her to freely roam
around in a store filled with glassware and appliances. ZHIENETH too, was guilty
of contributory negligence since she climbed the counter, triggering its eventual
collapse on her. Petitioners also emphasized that the counter was made of sturdy
wood with a strong support; it never fell nor collapsed for the past fifteen years
since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed
the diligence of a good father of a family in the selection, supervision and control
of its employees. The other petitioners likewise raised due care and diligence in
the performance of their duties and countered that the complaint was malicious
for which they suffered besmirched reputation and mental anguish. They sought
the dismissal of the complaint and an award of moral and exemplary damages and
attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after
finding that the preponderance of the evidence favored petitioners. It ruled that
the proximate cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung
to the counter, afterwhich the structure and the girl fell with the structure falling
on top of her, pinning her stomach. In contrast, none of private respondents'
witnesses testified on how the counter fell. The trial court also held that
CRISELDA's negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the
counter was situated at the end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an attractive nuisance. 8The counter
was higher than ZHIENETH. It has been in existence for fifteen years. Its structure
was safe and well-balanced. ZHIENETH, therefore, had no business climbing on
and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court
its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3)
petitioners were not negligent in the maintenance of the counter; and (4)
petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the
conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to
have propped herself on the counter. She had a small frame (four feet high and
seventy pounds) and the counter was much higher and heavier than she was. Also,
the testimony of one of the store's former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the
Makati Medical Center belied petitioners' theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she
did, ZHIENETH replied, "[N]othing, I did not come near the counter and the
counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's
spontaneous declaration should not only be considered as part of res gestaebut
also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for
her to have let go of ZHIENETH at the precise moment that she was signing the
credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of
ZHIENETH's death, was petitioners' negligence in failing to institute measures to
have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that ZHIENETH's
death while unfortunate and tragic, was an accident for which neither CRISELDA
nor even ZHIENETH could entirely be held faultless and blameless. Further,
petitioners adverted to the trial court's rejection of Gonzales' testimony as
unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the
ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately placed
at a corner to avoid such accidents. Truth to tell, they acted without fault or
negligence for they had exercised due diligence on the matter. In fact, the
criminal case 10 for homicide through simple negligence filed by private
respondents against the individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and
reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted "L" 11 with a top wider than the base. It was top heavy and the weight of
the upper portion was neither evenly distributed nor supported by its narrow
base. Thus, the counter was defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously
brought to the attention of the management the danger the counter could cause.
But the latter ignored their concern. The Court of Appeals faulted the petitioners
for this omission, and concluded that the incident that befell ZHIENETH could
have been avoided had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for some time without a prior
incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old
at the time of the incident, was absolutely incapable of negligence or other tort.
It reasoned that since a child under nine (9) years could not be held liable even
for an intentional wrong, then the six-year old ZHIENETH could not be made to
account for a mere mischief or reckless act. It also absolved CRISELDA of any
negligence, finding nothing wrong or out of the ordinary in momentarily allowing
ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then awarded
P99,420.86 as actual damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced by the hospital's
statement of account. 12 It denied an award for funeral expenses for lack of proof
to substantiate the same. Instead, a compensatory damage of P50,000 was
awarded for the death of ZHIENETH.
13
We quote the dispositive portion of the assailed decision, thus:
WHEREFORE, premises considered, the judgment of the lower
court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:
1. P50,000.00 by way of compensatory damages for the
death of Zhieneth Aguilar, with legal interest (6% p.a.)
from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization
expenses incurred; with legal interest (6% p.a.) from 27
April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was
denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that
the Court of Appeals erred in disregarding the factual findings and conclusions of
the trial court. They stress that since the action was based on tort, any finding of
negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDA's contributory negligence,
through her failure to provide the proper care and attention to her child while
inside the store, nullified private respondents' claim for damages. It is also for
these reasons that parents are made accountable for the damage or injury
inflicted on others by their minor children. Under these circumstances,
petitioners could not be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from
Syvel's at the time he testified; hence, his testimony might have been tarnished
by ill-feelings against them.
For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the store;
the findings and conclusions of the Court of Appeals are substantiated by the
evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on
the incident while she was in the hospital's emergency room should receive
credence; and finally, ZHIENETH's part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her" should be considered as the
correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of
negligence, whether the same was attributable to private respondents for
maintaining a defective counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence
attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening;
an event happening without any human agency, or if happening wholly or partly
through human agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a prudent and
reasonable man would not do. 17 Negligence is "the failure to observe, for the
protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person
suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the
other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark
case of Plicart v. Smith, 20 thus: Did the defendant in doing the alleged negligent
act use that reasonable care and caution which an ordinarily prudent person
would have used in the same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident
and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice
anything while the child was being treated?
A At the emergency room we were all surrounding the child. And
when the doctor asked the child "what did you do," the child
said "nothing, I did not come near the counter and the counter
just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and
should be admitted as) part of the res gestae under Section 42, Rule 130 of the
Rules of Court, thus:
Part of res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part
of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions. 23 All that is required for their admissibility as part of the res gestae is
that they be made or uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as witnessed by the
person who testified in court. Under the circumstances thus described, it is
unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We therefore accord
credence to Gonzales' testimony on the matter, i.e., ZHIENETH performed no act
that facilitated her tragic death. Sadly, petitioners did, through their negligence
or omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the
structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second
floor, will you please describe the gift wrapping counter, were
you able to examine?
A Because every morning before I start working I used to clean
that counter and since not nailed and it was only standing on
the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in
the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside
the verification counter. And since the top of it was heavy and
considering that it was not nailed, it can collapse at anytime,
since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky
and since Mr. Maat is fond of putting display decorations on
tables, he even told me that I would put some decorations. But
since I told him that it not [sic] nailed and it is shaky he told me
"better inform also the company about it." And since the
company did not do anything about the counter, so I also did not
do anything about the counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of
Gonzales, thus:
 Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor ordered
me to carry that counter to another place. I told him that the
counter needs nailing and it has to be nailed because it might
cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please describe that
to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic]
condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her
that the counter was shaky?
A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me?" And she even got angry
at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did
Ms. Panelo or any employee of the management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the
counter after the accident happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any
concrete action to remedy the situation nor ensure the safety of the store's
employees and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to
establish that the former's testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarra's testimonies were
blemished by "ill feelings" against petitioners — since they (Gonzales and
Guevarra) were already separated from the company at the time their testimonies
were offered in court — was but mere speculation and deserved scant
consideration.
It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and observing the
deportment of the witnesses. 26However, the rule admits of exceptions such as
when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could
affect the result of the case.27 In the instant case, petitioners failed to bring their
claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption
that favors children below nine (9) years old in that they are incapable of
contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and
is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains
in a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since
negligence may be a felony and aquasi-delict and required
discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence
in the case of a child over nine but under fifteen years of age is
a rebuttable one, under our law. The rule, therefore, is that a
child under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law.
[Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she
climbed over the counter, no injury should have occurred if we accept petitioners'
theory that the counter was stable and sturdy. For if that was the truth, a frail
six-year old could not have caused the counter to collapse. The physical analysis
of the counter by both the trial court and Court of Appeals and a scrutiny of the
evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped
like an inverted "L," the counter was heavy, huge, and its top laden with formica.
It protruded towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch when she signed her credit
card slip. At this precise moment, it was reasonable and usual for CRISELDA to let
go of her child. Further, at the time ZHIENETH was pinned down by the counter,
she was just a foot away from her mother; and the gift-wrapping counter was just
four meters away from CRISELDA. 32 The time and distance were both significant.
ZHIENETH was near her mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who treated her at the hospital
that she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV
37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1 Annex "A" of Petition; Rollo, 36-47. Per Justice Godardo A. Jacinto, 3 meters in width; with four (4) square legs. Its top was made of 5 1/2
with Justices Salome A. Montoya and Maximiano C. Asuncion, concurring. inch thick wood covered by formica about 3/4 inch thick.
2 Annex "B" of Petition; Rollo, 49. 31 TSN, 13 February 15, 20.
3 TSN, 13 February 1985, 5, 6, 7-8, 21-22, 31. 32 Ibid., 11, 22.
4 Id., 32, 36, 42, 52.
5 Original Record (OR), 8.
6 Exhibit "H."
7 OR, 603-612. Per Judge Pedro N. Lagui.
8 One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails
to exercise ordinary care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is injured
thereby, even if the child is technically a tresspasser in the premises.
The principal reason for the doctrine is that the condition or
appliance in question although its danger is apparent to those of
age, is so enticing or alluring to children of tender years as to
induce them to approach, get on or use it, and this
attractiveness is an implied invitation to such children. (Hidalgo
Enterprises, Inc. v. Balandan, et al., 488, 490 [1952].
9 TSN, 10 September 1987, 12.
10 Criminal Case No. 118986 filed with the Makati Metropolitan Trial
Court, Branch 61.
11 Exhibit "D."
12 Exhibit "F."
13 Supra note 1.
14 Supra note 2.
15 See Novo & Co. v. Ainsworth, 26 Phil. 380, 387 [1913].
16 BLACK'S LAW DICTIONARY, 5th ed. 1979, 14.
17 Mckee v. Intermediate Appellate Court, 211 SCRA 517, 539
[1992] citing Black's Law Dictionary, 5th ed., 1979, 930.
18 U.S. v. Barias, 23 Phil. 434, 437 [1912] citing Judge Cooley's work on
Torts, 3rd ed., 1324.
19 See Cavanaugh v. Jepson Iowa, 167 N.W. 2d 616, 623 [1969]. See
also Restatement, Second, Torts §8.
20 37 Phil. 809 [1918].
21 Ibid, 813.
22 TSN, 10 September 1987, 12, 13.
23 RICARDO J. FRANCISCO, III EVIDENCE, 1997, 591 citing Keefe v. State
of Arizona, 60 Ariz. 293; Stukas v. Warfield, Pratt, Howell Co., 175 N.W.
81, 85. [1919].
24 TSN, 10 September 1987, 8, 9, 11.
25 TSN, 2 October 1987, 9, 11.
26 See BPI Credit Corporation v. Court of Appeals, 204 SCRA 601, 608
[1991]; Geronimo v. Court of Appeals, 224 SCRA 494, 498 [1993].
27 Borillo v. Court of Appeals, 209 SCRA 130, 140-141 [1992]; McKee v.
Intermediate Appellate Court,supra note 16, 537; Salvador v. Court of
Appeals, 243 SCRA 239, 253 [1995].
28 I PHILIPPINE LAW ON TORTS AND DAMAGES, 70-71 (1993).
29 Exhibit "D."
30 Exhibits "K," "M," and "N." The counter was made of heavy wood
measuring about 4 to 5 meters in height; 1 meter in length; and 2 1/2 to
 EN BANC
G.R. No. L-35283 November 5, 1932
JULIAN DEL ROSARIO, plaintiff-appellant,
vs.
MANILA ELECTRIC COMPANY, defendant-appellee.
Vicente Sotto for appellant.
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. for appellee.
STREET, J.:
This action was instituted by Julian del Rosario for the purpose of
recovering damages from the Manila Electric Company for the death of his son,
Alberto del Rosario, resulting from a shock from a wire used by the defendant for
the transmission of electricity. The accident occurred on Dimas-Alang Street, in
the municipality of Caloocan, Province of Rizal. Damages are claimed in the
complaint in the amount of P30,000. Upon hearing the cause the trial court
absolved the defendant, and the plaintiff appealed.
Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble
developed in a wire used by the defendant on Dimas-Alang Street for the purpose
of conducting electricity used in lighting the City of Manila and its suburbs. Jose
Noguera, who had charge of a tienda nearby, first noticed that the wire was
burning and its connections smoking. In a short while the wire parted and one of
the ends of the wire fell to the ground among some shrubbery close to the way.
As soon as Noguera took cognizance of the trouble, he stepped into a garage
which was located nearby and asked Jose Soco, the timekeeper, to telephone the
Malabon station of the Manila Electric Company that an electrical wire was
burning at that place. Soco transmitted the message at 2.25 p.m. and received
answer from the station to the effect that they would send an inspector. From the
testimony of the two witnesses mentioned we are justified in the conclusion that
information to the effect that the electric wire at the point mentioned had
developed trouble was received by the company's servant at the time stated. At
the time that message was sent the wire had not yet parted, but from the
testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear
that the end of the wire was on the ground shortly after 3 p.m.
At 4 p. m. the neighborhood school was dismissed and the children went
home. Among these was Alberto del Rosario, of the age of 9 years, who was a few
paces ahead of two other boys, all members of the second grade in the public
school. These other two boys were Jose Salvador, of the age of 8, and Saturnino
Endrina, of the age of 10. As the three neared the place where the wire was
down, Saturnino made a motion as if it touch it. His companion, Jose Salvador,
happened to be the son of an electrician and his father had cautioned him never
to touch a broken electrical wire, as it might have a current. Jose therefore
stopped Saturnino, telling him that the wire might be charged. Saturnino yielded
to this admonition and desisted from his design, but Alberto del Rosario, who was
somewhat ahead, said, I have for some time been in the habit of touching wires
("Yo desde hace tiempo cojo alambres"). Jose Salvador rejoined that he should
into touch wires as they carry a current, but Alberto, no doubt feeling that he was
challenged in the matter, put out his index finger and touch the wire. He
immediately fell face downwards, exclaiming "Ay! madre". The end of the wire
remained in contact with his body which fell near the post. A crowd soon
collected, and some one cut the wire and disengaged the body. Upon being taken
to St. Luke's Hospital the child was pronounced dead.
The wire was an ordinary number 6 triple braid weather proof wire, such as
is commonly used by the defendant company for the purpose of conducting
electricity for lighting. The wire was cased in the usual covering, but this had
been burned off for some distance from the point where the wire parted. The
engineer of the company says that it was customary for the company to make a
special inspection of these wires at least once in six months, and that all of the
company's inspectors were required in their daily rounds to keep a lookout for
trouble of this kind. There is nothing in the record indicating any particular cause
for the parting of the wire.lawphil.net
We are of the opinion that the presumption of negligence on the part of
the company from the breakage of this wire has not been overcome, and the
defendant is in our opinion responsible for the accident. Furthermore, when
notice was received at the Malabon station at 2.25 p. m., somebody should have
been dispatched to the scene of the trouble at once, or other measures taken to
guard the point of danger; but more than an hour and a half passed before anyone
representing the company appeared on the scene, and in the meantime this child
had been claimed as a victim.
It is doubtful whether contributory negligence can properly be imputed to
the deceased, owing to his immature years and the natural curiosity which a child
would feel to do something out of the ordinary, and the mere fact that the
deceased ignored the caution of a companion of the age of 8 years does not, in
our opinion, alter the case. But even supposing that contributory negligence could
in some measure be properly imputed to the deceased, — a proposition upon
which the members of the court do not all agree, — yet such negligence would not
be wholly fatal to the right of action in this case, not having been the determining
cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil., 359.)
With respect to the amount of damages recoverable the majority of the
members of this court are of the opinion that the plaintiff is entitled to recover
P250 for expenses incurred in connection with the death and burial of the boy.
For the rest, in accordance with the precedents cited in Astudillo vs. Manila
Electric Company (55 Phil., 427), the majority of the court are of the opinion that
the plaintiff should recover the sum of P1,000 as general damages for loss of
service.
The judgment appealed from is therefore reversed and the plaintiff will
recover of the defendant the sum of P1,250, with costs of both instances. So
ordered.
Avanceña, C.J., Malcolm, Ostrand, Villa-Real, Vickers, Imperial and Butte, JJ.,
concur.
Separate Opinions
ABAD SANTOS, J., concurring in part and dissenting in part:
 I concur in so far as the defendant company is held liable for the death of
the plaintiff's son, but I dissent in so far as the decision allows the plaintiff to
recover of the defendant the sum of P1,250 only.
It is well settled in this jurisdiction that an action will lie to recover
damages for death caused by the wrongful act. (Manzanares vs. Moreta, 38 Phil.,
821.) The question, however, arises as to the amount of damages recoverable in
this case. In criminal cases, this court has adopted the rule of allowing, as a
matter of course, the sum of P1,000 as indemnity to the heirs of the deceased.
Following that rule, the court has allowed the plaintiff in this case to recover the
sum of P1,000 as general damages for loss of service. Whatever may be the
reasons for the rule followed in criminal cases, I am of the opinion that those
reasons do not obtain in fixing the amount of the damages recoverable in the
present case. The indemnity allowed in criminal case is merely incidental to the
main object sought, which is the punishment of the guilty party. In a civil action,
the principal object is the recovery of damages for wrongful death; and where, as
in this case, the defendant is a corporation, not subject to criminal prosecution
for the act complained of, the question assumes a vastly different aspect. Both in
reason and in justice, there should be a distinction between the civil liability of
an ordinary person who, by wrongful act, has caused the death of another; and
the civil liability of a corporation, organized primarily for profit, which has caused
the death of a person by failure to exercise due care in the prosecution of its
business. The liability of such a corporation for damages must be regarded as a
part of the risks which it assumes when it undertakes to promote its own business;
and just as it is entitled to earn adequate profits from its business, so it should be
made adequately to compensate those who have suffered damage by its
negligence.
Considering the circumstances of this case, I am of the opinion that the
plaintiff should recover the sum of P2,250 as damages.
 FIRST DIVISION
G.R. No. L-33722 July 29, 1988
FEDERICO YLARDE and ADELAIDA DORONIO petitioners,
vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.
Buenaventura C. Evangelista for petitioners.
Modesto V. Cabanela for respondent Edgardo Aquino.
Manuel P. Pastor for respondent Mauro Soriano.
GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the decision of the
Court of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs.
Edgardo Aquino, et al.," a case which originated from the Court of First Instance
of Pangasinan, We are again caned upon determine the responsibility of the
principals and teachers towards their students or pupils.
In 1963, private respondent Mariano Soriano was the principal of the Gabaldon
Primary School, a public educational institution located in Tayug, Pangasinan-
Private respondent Edgardo Aquino was a teacher therein. At that time, the
school was fittered with several concrete blocks which were remnants of the old
school shop that was destroyed in World War II. Realizing that the huge stones
were serious hazards to the schoolchildren, another teacher by the name of Sergio
Banez started burying them one by one as early as 1962. In fact, he was able to
bury ten of these blocks all by himself.
Deciding to help his colleague, private respondent Edgardo Aquino gathered
eighteen of his male pupils, aged ten to eleven, after class dismissal on October
7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton
concrete block in order to make a hole wherein the stone can be buried. The work
was left unfinished. The following day, also after classes, private respondent
Aquino called four of the original eighteen pupils to continue the digging. These
four pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito
Ylarde, dug until the excavation was one meter and forty centimeters deep. At
this point, private respondent Aquino alone continued digging while the pupils
remained inside the pit throwing out the loose soil that was brought about by the
digging.
When the depth was right enough to accommodate the concrete block, private
respondent Aquino and his four pupils got out of the hole. Then, said private
respondent left the children to level the loose soil around the open hole while he
went to see Banez who was about thirty meters away. Private respondent wanted
to borrow from Banez the key to the school workroom where he could get some
rope. Before leaving. , private respondent Aquino allegedly told the children "not
to touch the stone."
A few minutes after private respondent Aquino left, three of the four kids,
Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any
warning at all, the remaining Abaga jumped on top of the concrete block causing
it to slide down towards the opening. Alonso and Alcantara were able to scramble
out of the excavation on time but unfortunately fo Ylarde, the concrete block
caught him before he could get out, pinning him to the wall in a standing position.
As a result thereof, Ylarde sustained the following injuries:
1. Contusion with hematoma, left inguinal region and
suprapubic region.
2. Contusion with ecchymosis entire scrotal region.
3. Lacerated wound, left lateral aspect of penile skin with
phimosis
4. Abrasion, gluteal region, bilateral.
5. Intraperitoneal and extrapertitoneal extravasation of blood
and urine about 2 liters.
6. Fracture, simple, symphesis pubis
7. Ruptured (macerated) urinary bladder with body of bladder
almost entirely separated from its neck.
REMARKS:
1. Above were incurred by crushing injury.
2. Prognosis very poor.
(Sgd.) MELQUIADES A. BRAVO
Physician on Duty. 1
Three days later, Novelito Ylarde died.
Ylarde's parents, petitioners in this case, filed a suit for damages against both
private respondents Aquino and Soriano. The lower court dismissed the complaint
on the following grounds: (1) that the digging done by the pupils is in line with
their course called Work Education; (2) that Aquino exercised the utmost
diligence of a very cautious person; and (3) that the demise of Ylarde was due to
his own reckless imprudence. 2
On appeal, the Court of Appeals affirmed the Decision of the lower court.
Petitioners base their action against private respondent Aquino on Article 2176 of
the Civil Code for his alleged negligence that caused their son's death while the
complaint against respondent Soriano as the head of school is founded on Article
2180 of the same Code.
Article 2176 of the Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
On the other hand, the applicable provision of Article 2180 states:
Art. 2180. x x x
xxx xxx xxx
Lastly, teachers or heads of establishments of arts and trades
shall be liable for damages caused by their pupils and students
or apprentices, so long as they remain in their custody. 3
The issue to be resolved is whether or not under the cited provisions, both private
respondents can be held liable for damages.
As regards the principal, We hold that he cannot be made responsible for the
death of the child Ylarde, he being the head of an academic school and not a
school of arts and trades. This is in line with Our ruling in Amadora vs. Court of
Appeals, 4 wherein this Court thoroughly discussed the doctrine that under Article
2180 of the Civil Code, it is only the teacher and not the head of an academic
school who should be answerable for torts committed by their students. This
Court went on to say that in a school of arts and trades, it is only the head of the
school who can be held liable. In the same case, We explained:
After an exhaustive examination of the problem, the Court has
come to the conclusion that the provision in question should
apply to all schools, academic as well as non-academic. Where
the school is academic rather than technical or vocational in
nature, responsibility for the tort committed by the student will
attach to the teacher in charge of such student, following the
first part of the provision. This is the general rule. In the case of
establishments of arts and trades, it is the head thereof, and
only he, who shall be held liable as an exception to the general
rule. In other words, teachers in general shall be liable for the
acts of their students except where the school is technical in
nature, in which case it is the head thereof who shall be
answerable. Following the canon of reddendo singula
sinquilis 'teachers' should apply to the words "pupils and
students' and 'heads of establishments of arts and trades to the
word "apprentices."
Hence, applying the said doctrine to this case, We rule that private respondent
Soriano, as principal, cannot be held liable for the reason that the school he
heads is an academic school and not a school of arts and trades. Besides, as
clearly admitted by private respondent Aquino, private respondent Soriano did
not give any instruction regarding the digging.
From the foregoing, it can be easily seen that private respondent Aquino can be
held liable under Article 2180 of the Civil Code as the teacher-in-charge of the
children for being negligent in his supervision over them and his failure to take
the necessary precautions to prevent any injury on their persons. However, as
earlier pointed out, petitioners base the alleged liability of private respondent
Aquino on Article 2176 which is separate and distinct from that provided for in
Article 2180.
With this in mind, the question We need to answer is this: Were there acts and
omissions on the part of private respondent Aquino amounting to fault or
negligence which have direct causal relation to the death of his pupil Ylarde? Our
answer is in the affirmative. He is liable for damages.
From a review of the record of this case, it is very clear that private respondent
Aquino acted with fault and gross negligence when he: (1) failed to avail himself
of services of adult manual laborers and instead utilized his pupils aged ten to
eleven to make an excavation near the one-ton concrete stone which he knew to
be a very hazardous task; (2) required the children to remain inside the pit even
after they had finished digging, knowing that the huge block was lying nearby and
could be easily pushed or kicked aside by any pupil who by chance may go to the
perilous area; (3) ordered them to level the soil around the excavation when it
was so apparent that the huge stone was at the brink of falling; (4) went to a
place where he would not be able to check on the children's safety; and (5) left
the children close to the excavation, an obviously attractive nuisance.
The negligent act of private respondent Aquino in leaving his pupils in such a
dangerous site has a direct causal connection to the death of the child Ylarde.
Left by themselves, it was but natural for the children to play around. Tired from
the strenuous digging, they just had to amuse themselves with whatever they
found. Driven by their playful and adventurous instincts and not knowing the risk
they were facing three of them jumped into the hole while the other one jumped
on the stone. Since the stone was so heavy and the soil was loose from the
digging, it was also a natural consequence that the stone would fall into the hole
beside it, causing injury on the unfortunate child caught by its heavy weight.
Everything that occurred was the natural and probable effect of the negligent
acts of private respondent Aquino. Needless to say, the child Ylarde would not
have died were it not for the unsafe situation created by private respondent
Aquino which exposed the lives of all the pupils concerned to real danger.
We cannot agree with the finding of the lower court that the injuries which
resulted in the death of the child Ylarde were caused by his own reckless
imprudence, It should be remembered that he was only ten years old at the time
of the incident, As such, he is expected to be playful and daring. His actuations
were natural to a boy his age. Going back to the facts, it was not only him but the
three of them who jumped into the hole while the remaining boy jumped on the
block. From this, it is clear that he only did what any other ten-year old child
would do in the same situation.
In ruling that the child Ylarde was imprudent, it is evident that the lower court
did not consider his age and maturity. This should not be the case. The degree of
care required to be exercised must vary with the capacity of the person
endangered to care for himself. A minor should not be held to the same degree of
care as an adult, but his conduct should be judged according to the average
conduct of persons of his age and experience. 5 The standard of conduct to which
a child must conform for his own protection is that degree of care ordinarily
exercised by children of the same age, capacity, discretion, knowledge and
experience under the same or similar circumstances. 6 Bearing this in mind, We
cannot charge the child Ylarde with reckless imprudence.
The court is not persuaded that the digging done by the pupils can pass as part of
their Work Education. A single glance at the picture showing the excavation and
the huge concrete block 7 would reveal a dangerous site requiring the attendance
of strong, mature laborers and not ten-year old grade-four pupils. We cannot
comprehend why the lower court saw it otherwise when private respondent
Aquino himself admitted that there were no instructions from the principal
requiring what the pupils were told to do. Nor was there any showing that it was
included in the lesson plan for their Work Education. Even the Court of Appeals
made mention of the fact that respondent Aquino decided all by himself to help
his co-teacher Banez bury the concrete remnants of the old school
shop. 8 Furthermore, the excavation should not be placed in the category of
school gardening, planting trees, and the like as these undertakings do not expose
the children to any risk that could result in death or physical injuries.
The contention that private respondent Aquino exercised the utmost diligence of
a very cautious person is certainly without cogent basis. A reasonably prudent
person would have foreseen that bringing children to an excavation site, and more
so, leaving them there all by themselves, may result in an accident. An ordinarily
careful human being would not assume that a simple warning "not to touch the
stone" is sufficient to cast away all the serious danger that a huge concrete block
adjacent to an excavation would present to the children. Moreover, a teacher
who stands in loco parentis to his pupils would have made sure that the children
are protected from all harm in his company.
We close by categorically stating that a truly careful and cautious person would
have acted in all contrast to the way private respondent Aquino did. Were it not
for his gross negligence, the unfortunate incident would not have occurred and
the child Ylarde would probably be alive today, a grown- man of thirty-five. Due
to his failure to take the necessary precautions to avoid the hazard, Ylarde's
parents suffered great anguish all these years.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the
questioned judgment of the respondent court is REVERSED and SET ASIDE and
another judgment is hereby rendered ordering private respondent Edagardo
Aquino to pay petitioners the following:
(1) Indemnity for the death of Child Ylarde P30,000.00
(2) Exemplary damages 10,000.00
(3) Moral damages 20,000.00
SO ORDERED.
Narvasa Cruz, Griño-Aquino and Medialdea, JJ., concur.

Footnotes
1 Pages 2-3, Rollo.
2 Decision of the Court of First Instance of Pangasinan, page 22,
Original Record.
3 Article 2180 of the Civil Code.
4 G.R. No. L-47745, April 15, 1988.
5 Sangco Philippine Law on Torts and Damages, 1978 ed., p. 62.
6 Ibid, p. 123.
7 Exh. "B," Original Exhibit.
8 Decision of the Court of Appeals; page 33, Rollo.
 EN BANC
G.R. No. L-32611 November 3, 1930
CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by the
Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from the
Philippine Motors Corporation the sum of P11,350, with interest and costs. Upon
hearing the cause the trial court gave judgment in favor of the plaintiff to recover
of the defendant the sum of P9,850, with interest at 6 per centum per annum
from March 24,1927, the date of the filing of the complaint, until satisfaction of
the judgment, with costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of
the incident with which we are here concerned, H.D. Cranston was the
representative of the plaintiff in the City of Manila. At the same time the plaintiff
was the registered owner of the motor schooner Gwendoline, which was used in
the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if
practicable, to have the engine on the Gwendoline changed from a gasoline
consumer to a crude oil burner, expecting thereby to effect economy in the cost
of running the boat. He therefore made known his desire to McLeod & Co., a firm
dealing in tractors, and was told by Mc Kellar, of said company, that he might
make inquiries of the Philippine Motors Corporations, which had its office on
Ongpin Street, in the City of Manila. Cranston accordingly repaired to the office of
the Philippine Motors Corporation and had a conference with C.E. Quest, its
manager, who agreed to do the job, with the understanding that payment should
be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as
an automobile agency, but, under its charter, it had authority to deal in all sorts
of machinery engines and motors, as well as to build, operate, buy and sell the
same and the equipment therof. Quest, as general manager, had full charge of
the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston,
visited the Gwendoline while it lay at anchor in the Pasig River, and the work of
effecting the change in the engine was begun and conducted under the
supervision of Quest, chiefly by a mechanic whom Quest took with him to the
boat. In this work Quest had the assistance of the members of the crew of
the Gwendoline, who had been directed by Cranston to place themselves under
Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion
that the principal thing necessary to accomplish the end in view was to install a
new carburetor, and a Zenith carburetor was chosen as the one most adapted to
the purpose. After this appliance had been installed, the engine was tried with
gasoline as a fuel, supplied from the tank already in use. The result of this
experiment was satisfactory. The next problem was to introduce into the
carburetor the baser fuel, consisting of a low grade of oil mixed with distillate.
For this purpose a temporary tank to contain the mixture was placed on deck
above and at a short distance from the compartment covering the engine. This
tank was connected with the carburetor by a piece of tubing, which was
apparently not well fitted at the point where it was connected with the tank.
Owing to this fact the fuel mixture leaked from the tank and dripped sown into
the engine compartment. The new fuel line and that already in use between the
gasoline tank and carburetor were so fixed that it was possible to change from the
gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable
the operator to start the engine on gasoline and then, after the engine had been
operating for a few moments, to switch to the new fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its
connections, it was observed that the carburetor was flooding, and that the
gasoline, or other fuel, was trickling freely from the lower part to the carburetor
to the floor. This fact was called to Quest's attention, but he appeared to think
lightly of the matter and said that, when the engine had gotten to running well,
the flooding would disappear.
After preliminary experiments and adjustments had been made the boat
was taken out into the bay for a trial run at about 5 p.m. or a little later, on the
evening of January 30,1925. The first part of the course was covered without any
untoward development, other than he fact that the engine stopped a few times,
owing no doubt to the use of an improper mixture of fuel. In the course of the
trial Quest remained outside of the engine compartment and occupied himself
with making distillate, with a view to ascertaining what proportion of the two
elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when
passing near Cavite, the engine stopped, and connection again had to be made
with the gasoline line to get a new start. After this had been done the mechanic,
or engineer, switched to the tube connecting with the new mixture. A moment
later a back fire occurred in the cylinder chamber. This caused a flame to shoot
back into the carburetor, and instantly the carburetor and adjacent parts were
covered with a mass of flames, which the members of the crew were unable to
subdue. They were therefore compelled, as the fire spread, to take to a boat, and
their escape was safely effected, but the Gwendoline was reduced to a mere
hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The
value of the boat, before the accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat
was chargeable to the negligence and lack of skill of Quest. The temporary tank in
which the mixture was prepared was apparently at too great an elevation from
the carburetor, with the result that when the fuel line was opened, the
hydrostatic pressure in the carburetor was greater than the delicate parts of the
carburetor could sustain. This was no doubt the cause of the flooding of the
carburetor; and the result was that; when the back fire occurred, the external
parts of the carburetor, already saturated with gasoline, burst into flames,
whence the fire was quickly communicated to the highly inflammable material
near-by. Ordinarily a back fire from an engine would not be followed by any
disaster, but in this case the leak along the pipe line and the flooding of the
carburetor had created a dangerous situation, which a prudent mechanic, versed
in repairs of this nature, would have taken precautions to avoid. The back fire
may have been due either to the fact that the spark was too advanced or the fuel corporation and had gone back to the United States. Upon these facts, the
improperly mixed. defendant bases the contention that the action should be considered stale. It is
In this connection it must be remembered that when a person holds himself sufficient reply to say that the action was brought within the period limited by
out as being competent to do things requiring professional skill, he will be held the statute of limitations and the situation is not one where the defense of laches
liable for negligence if he fails to exhibit the care and skill of one ordinarily can be properly invoked.
skilled in the particular work which he attempts to do. The proof shows that It results that the judgment appealed from, awarding damages to the
Quest had had ample experience in fixing the engines of automobiles and plaintiff in the amount of P9,850, with interest, must be affirmed; and it is so
tractors, but it does not appear that he was experienced in the doing of similar ordered, with costs against the appellant.
work on boats. For this reason, possibly the dripping of the mixture form the tank Avanceña, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ.,
on deck and the flooding of the carburetor did not convey to his mind an concur.
adequate impression of the danger of fire. But a person skilled in that particular
sort of work would, we think have been sufficiently warned from those
circumstances to cause him to take greater and adequate precautions against the
danger. In other words Quest did not use the skill that would have been exhibited
by one ordinarily expert in repairing gasoline engines on boats. There was here, in
our opinion, on the part of Quest, a blameworthy antecedent inadvertence to
possible harm, and this constitutes negligence. The burning of
the Gwendoline may be said to have resulted from accident, but this accident was
in no sense an unavoidable accident. It would not have occured but for Quest's
carelessness or lack of skill. The test of liability is not whether the injury was
accidental in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is
chargeable to lack of skill or negligence in effecting the changes which Quest
undertook to accomplish; and even supposing that our theory as to the exact
manner in which the accident occurred might appear to be in some respects
incorrect, yet the origin of the fire in not so inscrutable as to enable us to say
that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as
Quest had control of theGwendoline during the experimental run, the defendant
corporation was in the position of a bailee and that, as a consequence, the
burden of proof was on the defendant to exculpate itself from responsibility by
proving that the accident was not due to the fault of Quest. We are unable to
accede to this point of view. Certainly, Quest was not in charge of the navigation
of the boat on this trial run. His employment contemplated the installation of new
parts in the engine only, and it seems rather strained to hold that the defendant
corporation had thereby become bailee of the boat. As a rule workmen who make
repairs on a ship in its owner's yard, or a mechanic who repairs a coach without
taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true bailee
acquires possession and what is usually spoken of as special property in the
chattel bailed. As a consequence of such possession and special property, the
bailee is given a lien for his compensation. These ideas seem to be incompatible
with the situation now under consideration. But though defendant cannot be held
liable in the supposition that the burden of proof had not been sustained by it in
disproving the negligence of its manager, we are nevertheless of the opinion that
the proof shows by a clear preponderance that the accident to
the Gwendoline and the damages resulting therefrom are chargeable to the
negligence or lack of skill of Quest.
This action was instituted about two years after the accident in question
had occured, and after Quest had ceased to be manager of the defendant
 EN BANC
G.R. No. L-12858 January 22, 1918
THE UNITED STATES, plaintiff-appellee,
vs.
SANTIAGO PINEDA, defendant-appellant.
Francisco and Lualhati for appellant.
Acting Attorney-General Paredes for appellee.
MALCOLM, J.:
This appeal requires a construction and an application, for the first time, of the
penal provisions of the Pharmacy Law.
Santiago Pineda, the defendant, is a registered pharmacist of long standing and
the owner of a drug store located at Nos. 442, 444, Calle Santo Cristo, city of
Manila. One Feliciano Santos, having some sick horses, presented a copy of a
prescription obtained from Dr. Richardson, and which on other occasions Santos
had given to his horses with good results, at Pineda's drug store for filling. The
prescription read — "clorato de potasa — 120 gramos — en seis papelitos de 20
gramos, para caballo." Under the supervision of Pineda, the prescription was
prepared and returned to Santos in the form of six papers marked, "Botica Pineda
— Clorato potasa — 120.00 — en seis papeles — para caballo — Sto. Cristo 442,
444, Binondo, Manila." Santos, under the belief that he had purchased the
potassium chlorate which he had asked for, put two of the packages in water the
doses to two of his sick horses. Another package was mixed with water for
another horse, but was not used. The two horses, to which had been given the
preparation, died shortly afterwards. Santos, thereupon, took the three remaining
packages to the Bureau of Science for examination. Drs. Peña and Darjuan, of the
Bureau of Science, on analysis found that the packages contained not potassium
chlorate but barium chlorate. At the instance of Santos, the two chemists also
went to the drug store of the defendant and bought potassium chlorate, which
when analyzed was found to be barium chlorate. (Barium chlorate, it should be
noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian,
performed an autopsy on the horses, and found that death was the result of
poisoning.
Four assignments of error are made. The first is that the lower court erred in
admitting the testimony of the chemist Pena and Darjuan as to their purchase of
potassium chlorate at the drug store of the accused, which substance proved on
analysis to be barium chlorate. What the appellant is here relying on is the
maxim res inter alios acta. As a general rule, the evidence of other offenses
committed by a defendant is inadmissible. But appellant has confused this maxim
and this rule with certain exceptions thereto. The effort is not to convict the
accused of a second offense. Nor is there an attempt to draw the mind away from
the point at issue and thus to prejudice defendant's case. The purpose is to
ascertain defendant's knowledge and intent, and to fix his negligence. If the
defendant has on more than one occasion performed similar acts, accident in
good faith is possibly excluded, negligence is intensified, and fraudulent intent
may even be established. It has been said that there is no better evidence of
negligence than the frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The
United States Supreme Court has held that:
On the trial of a criminal case the question relates to the tendency of
certain testimony to throw light upon a particular fact, or to explain the
conduct of a particular person, there is a certain discretion on the part
of the trial judge which a court of errors will not interfere with, unless it
manifestly appear that the testimony has no legitimate bearing upon the
question at issue, and is calculated to prejudice the accused.
Whenever the necessity arises for a resort to circumstantial evidence,
either from the nature of the inquiry or the failure of direct proof,
objections to the testimony on the ground of irrelevancy are not favored.
Evidence is admissible in a criminal action which tends to show motive,
although it tends to prove the commission of another offense by the
defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)
The second assignment of error is that the lower court erred in finding that the
substance sold by the accused to Feliciano Santos on the 22d of June, 1916, was
barium chlorate and not potassium chlorate. The proof demonstrates the
contrary.
The third and fourth assignments of error that the lower court erred in finding
that the accused has been proved guilty beyond a reasonable doubt of an
infraction of Act No. 597, section 17, as amended. The third assignment contains
the points we should consider, including, we may remark, a somewhat difficult
question concerning which the briefs have given little assistance.
The Pharmacy Law was first enacted as Act No. 597, was later amended by Act
Nos. 1921, 2236, and 2382, and is now found as Chapter 30 of the Administrative
Code. The law provides for a board of pharmaceutical examiners, and the
examination and registration of pharmacists, and finally contains sundry
provisions relative to the practice of pharmacy. High qualification for applicants
for the pharmaceutical; examination are established. The program of subjects for
the examination is wide. Responsibility for the quality of drugs is fixed by section
17 of the Pharmacy Law, as amended (now Administrative Code [1917], section
751), in the following term:
Every pharmacist shall be responsible for the quality of all drugs,
chemicals, medicines, and poisons he may sell or keep for sale; and it
shall be unlawful for any person whomsoever to manufacture, prepare,
sell, or administer any prescription, drug, chemical, medicine, or poison
under any fraudulent name, direction, or pretense, or to adulterate any
drug, chemical, medicine, or poison so used, sold or offered for sale. Any
drug, chemical, medicine, or poison shall be held to be adulterated or
deteriorated within the meaning of this section if it differs from the
standard of quality or purity given in the United States Pharmacopoeia.
The same section of the Pharmacy Law also contains the following penal
provision: "Any person violating the provisions of this Act shall, upon conviction,
be punished by a fine of not more than five hundred dollar." The Administrative
Code, section 2676, changes the penalty somewhat by providing that:
Any person engaging in the practice of pharmacy in the Philippine Islands
contrary to any provision of the Pharmacy Law or violating any provisions
of said law for which no specific penalty s provided shall, for each
offense, be punished by a fine not to exceed two hundred pesos, or by
 imprisonment for not more than ninety days, or both, in the discretion of
the court.
These are the provisions of law, pursuant to which prosecution has been initiated
and which it is now incumbent upon us to construe.
Turning to the law, certain points therein as bearing on our present facts must be
admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made
responsible for the quality of all drugs and poisons which he sells. And finally it is
provided that it shall be unlawful for him to sell any drug or poison under any
"fraudulent name." It is the one word "fraudulent" which has given the court
trouble. What did the Legislature intend to convey by this restrictive adjective?
Were we to adhere to the technical definition of fraud, which the appellant
vigorously insists upon, it would be difficult, if not impossible, to convict any
druggist of a violation of the law. The prosecution would have to prove to a
reasonable degree of certainty that the druggist made a material representation;
that it was false; that when he made it he knew that it was false or made it
recklessly without any knowledge of its truth and as positive assertion; that he
made it with the intention that it should be acted upon by the purchaser; that the
purchaser acted in reliance upon it, and that the purchased thereby suffered
injury. Such a construction with a literal following of well-known principles on the
subject of fraud would strip the law of at least much of its force. It would leave
the innocent purchaser of drugs, who must blindly trust in the good faith and
vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should
not, therefore, without good reason so devitalize the law.
The profession of pharmacy, it has been said again and again, is one demanding
care and skill. The responsibility of the druggist to use care has been variously
qualified as "ordinary care," "care of a special high degree," "the highest degree of
care known to practical men." Even under the first conservative expression,
"ordinary care" with reference to the business of a druggist, the Supreme Court of
Connecticut has said must be held to signify "the highest practicable degree of
prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards
consistent with the reasonable conduct of the business, in order that human life
may not be constantly be exposed to the danger flowing from the substitution of
deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85 Conn.,
235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108;
Knoefel vs. Atkins [1907], 81 N. E., 600.) The "skill" required of a druggist is
denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va., 644; 57
L. R. A., 428.) In other words, the care required must be commensurate with the
danger involved, and the skill employed must correspond with the superior
knowledge of the business which the law demands.
Under one conception, and it should not be forgotten that the case we consider
are civil in nature, the question of negligence or ignorance is irrelevant. The
druggist is responsible as an absolute guarantor of what he sells. In a decision
which stands alone, the Supreme Court of Kentucky said:
As applicable to the owners of drug stores, or persons engaged in vending
drugs and medicines by retail, the legal maxim should be reversed.
Instead of caveat emptor, it should be caveat venditor. That is to say,
let him be certain that he does not sell to a purchaser or send to a
patient one drug for another, as arsenic for calomel, cantharides for or
mixed with snakeroot and Peruvian bark, or even one innocent drug,
calculated to produce a certain effect, in place of another sent for and
designed to produce a different effect. If he does these things, he cannot
escape civil responsibility, upon the alleged pretext that it was an
accidental or an innocent mistake; that he had been very careful and
particular, and had used extraordinary care and diligence in preparing or
compounding the medicines as required, etc. Such excuses will not avail
him. (Fleet vs. Hollenkemp [1852], 56 Am. Dec., 563.)
Under the other conception, in which the proof of negligence is considered as
material, where a customer calls upon a druggist for a harmless remedy, delivery
of a poisonous drug by mistake by the druggist is prima facienegligence, placing
the burden on him to show that the mistake was under the circumstances
consistent with the exercise of due care. (See Knoefel vs. Atkins, supra,) The
druggist cannot, for example in filling a prescription calling for potassium chlorate
give instead to the customer barium chlorate, a poison, place this poison in a
package labeled "potassium chlorate," and expect to escape responsibility on plea
of mistake. His mistake, under the most favorable aspect for himself, was
negligence. So in a case where a druggist filled an order for calomel tablets with
morphine and placed the morphine in a box labeled calomel, it was said:
It is not suggested, nor can we apprehend that it is in any wise probable,
that the act of furnishing the wrong drug in this case was willful. If it was
furnished by the clerk, it was undoubtedly a mistake and unintentional.
However, it was a mistake of the gravest kind, and of the most disastrous
effect. We cannot say that one holding himself out as competent to
handle such drugs, and who does so, having rightful access to them, and
relied upon by those dealing with him to exercise that high degree of
caution and care called for by the peculiarly dangerous nature of this
business, can be heard to say that his mistakes by which he furnishes a
customer the most deadly of drugs for those comparatively harmless is
not, in and of itself, gross negligence, and that of an aggravated form.
(Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.)
The rule of caveat emptor cannot apply to the purchase and sale of drugs. The
vendor and the vendee do not stand at arms length as in ordinary transactions. An
imperative duty is on the druggist to take precautions to prevent death or serious
injury to anyone who relies on his absolute honesty and peculiar leaning. The
nature of drugs is such that examination would not avail the purchaser anything.
It would be idle mockery for the customer to make an examination of a compound
of which he can know nothing. Consequently, it must be that the druggist
warrants that he will deliver the drug called for.
In civil cases, the druggist is made liable for any injury approximately resulting
from his negligence. If B negligently sells poison under the guise of a beneficial
drug to A, he is liable for the injury done to A. In a case, which has repeatedly
been termed the leading case on the subject and which has been followed by the
United States Supreme Court, it was said, "Pharmacists or apothecaries who
compound or sell medicines, if they carelessly label a poison as a harmless
medicine, and sent it so labeled into the market, are liable to all persons who,
without fault on their part, are injured by using it as such medicine, in
consequence of the false label; the rule being that the liability in such a case
arises not out of any contract or direct privity between the wrong-doer and the
person injured, but out of the duty which the law imposes on him to avoid acts in
their nature dangerous to the lives of others." (Nat. Savings Bank vs. Ward [1879],
100 U. S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In
reality, for the druggist, mistake is negligence and care is no defense. Throughout
the criminal law, run the same rigorous rules. For example, apothecaries or
apothecary clerks, who are guilty of negligence in the sale of medicine when
death ensues in consequence, have been held guilty of manslaughter. (See
Tessymond's Case [1828], 1 Lewin, C. C., 169.)
Bearing these general principles in mind, and remembering particularly the care
and skill which are expected of druggist, that in some jurisdictions they are liable
even for their mistake and in others have the burden placed upon them to
establish that they were not negligent, it cannot be that the Philippine
Legislature intended to use the word "fraudulent" in all its strictness. A plea of
accident and mistake cannot excuse for they cannot take place unless there be
wanton and criminal carelessness and neglect. How the misfortune occurs is
unimportant, if under all the circumstances the fact of occurrence is attributed to
the druggist as a legal fault. Rather considering the responsibility for the quality
of drugs which the law imposes on druggists and the position of the word
"fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a
false name to the drug asked for. This view is borne out by Spanish translation,
which we are permitted to consult to explain the English text. In the Spanish
"supuesto" is used, and this word is certainly not synonymous with "fraudulent."
The usual badges of fraud, falsify, deception, and injury must be present-but not
scienter.
In view of the tremendous an imminent danger to the public from the careless
sale of poisons and medicines, we do not deem it too rigid a rule to hold that the
law penalizes any druggist who shall sell one drug for another whether it be
through negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of P100,
with subsidiary imprisonment in case of insolvency, and to pay the costs, is
affirmed with the cost of this instance against the appellant, without prejudice to
any civil action which may be instituted. So ordered.
Arellano, C.J., Torres, Johnson, Carson, Araullo, and Street, JJ., concur.
 THIRD DIVISION
G.R. No. 102383 November 26, 1992
BANK OF THE PHILIPPINE ISLANDS, petitioner,
vs.
THE HON. COURT OF APPEALS (SEVENTH JUDICIAL), HON. JUDGE REGIONAL
TRIAL COURT OF MAKATI, BRANCH 59, CHINA BANKING CORP., and PHILIPPINE
CLEARING HOUSE CORPORATION, respondents.
GUTIERREZ, JR., J.:
The present petition asks us to set aside the decision and resolution of the Court
of Appeals in CA-G.R. SP No. 24306 which affirmed the earlier decision of the
Regional Trial Court of Makati, Branch 59 in Civil Case No. 14911 entitled Bank of
the Philippine Islands v. China Banking Corporation and the Philippine Clearing
House Corporation, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
dismissing petitioner-appellant's (BPI's) appeal and affirming the
appealed order of August 26, 1986 (Annex B of BPI's Petition)
with modification as follows:
1. Ordering the petitioner-appellant (BPI) to pay respondent-
appellee (CBC):
(a) the amount of One Million Two Hundred Six Thousand, Six
Hundred Seven Pesos and Fifty Eight Centavos (P1,206,607.58)
with interest at the legal rate of twelve percent (12%) per
annum starting August 26, 1986, the date when the order of the
PCHC Board of Directors was issued until the full amount is
finally paid; and
(b) the amount of P150,000.00 representing attorney's fees;
2. BPI shall also bear 75% or P5,437.50 and CBC, 25% or
P1,812.50 of the cost of the arbitration proceedings amounting
to P7,250.00;
3. The ownership of respondent-appellee (CBC) of the other sum
of One Million Two Hundred Six Thousand Six Hundred Seven
Pesos and Fifty Eight Centavos (P1,206,607.58) previously
credited to its clearing account on August 12, 1983 per PCHC
Stockholders' Resolution No. 6083 dated April 6, 1983, is hereby
confirmed.
4. The PCHC is hereby directed to immediately debit the
clearing account of BPI the sum of One Million Two Hundred Six
Thousand Six Hundred Pesos and Fifty Eight Centavos
(P1,206,607.58) together with its interest as decreed in
paragraph 1 (a) herein above stated and credit the same to the
clearing account of CBC;
5. The PCHC's counterclaim and cross-claim are dismissed for
lack of merit; and
6. With costs against the petitioner-appellant. (Rollo, pp. 161-
162)
The controversy in this case arose from the following facts as found by the
Arbitration Committee of respondent Philippine Clearing House Corporation in
Arbicom Case No. 83-029 entitled Bank of the Philippine Island v. China Banking
Corporation:
The story underlying this case began in the afternoon of October
9, 1981 with a phone call to BPI's Money Market Department by a
woman who identified herself as Eligia G. Fernando who had a
money market placement as evidenced by a promissory note
with a maturity date of November 11, 1981 and a maturity value
of P2,462,243.19. The caller wanted to preterminate the
placement, but Reginaldo Eustaquio, Dealer Trainee in BPI's
Money Market Department, who received the call and who
happened to be alone in the trading room at the time, told her
"trading time" was over for the day, which was a Friday, and
suggested that she call again the following week. The
promissory note the caller wanted to preterminate was a roll-
over of an earlier 50-day money market placement that had
matured on September 24, 1981.
Later that afternoon, Eustaquio conveyed the request for
pretermination to the officer who before had handled Eligia G.
Fernando's account, Penelope Bulan, but Eustaquio was left to
attend to the pretermination process.
The next Monday, October 12, 1981, in the morning, the caller
of the previous Friday followed up with Eustaquio, merely by
phone again, on the pretermination of the placement. Although
not familiar with the voice of the real Eligia G. Fernando,
Eustaquio "made certain" that the caller was the real Eligia G.
Fernando by "verifying" that the details the caller gave about
the placement tallied with the details in "the ledger/folder" of
the account. Eustaquio knew the real Eligia G. Fernando to be
the Treasurer of Philippine American Life Insurance Company
(Philamlife) since he was handling Philamlife's corporate money
market account. But neither Eustaquio nor Bulan who originally
handled Fernando's account, nor anybody else at BPI, bothered
to call up Fernando at her Philamlife office to verify the request
for pretermination.
Informed that the placement would yield less than the maturity
value because of its pretermination, the caller insisted on the
pretermination just the same and asked that two checks be
issued for the proceeds, one for P1,800,000.00 and the second
for the balance, and that the checks be delivered to her office
at Philamlife.
Eustaquio, thus, proceeded to prepare the "purchase order slip"
for the requested pretermination as required by office
procedure, and from his desk, the papers, following the
processing route, passed through the position analyst, securities
clerk, verifier clerk and documentation clerk, before the two
cashier's checks, nos. 021759 and 021760 for P1,800,000.00 and
P613,215.16, respectively, both payable to Eligia G. Fernando,
covering the preterminated placement, were prepared. The two
cashier's checks, together with the papers consisting of the
money market placement was to be preterminated and the
promissory note (No. 35623) to be preterminated, were sent to
Gerlanda E. de Castro and Celestino Sampiton, Jr., Manager and
Administrative Assistant, respectively, in BPI's Treasury
Operations Department, both authorized signatories for BPI,
who signed the two checks that very morning. Having been
singed, the checks now went to the dispatcher for delivery.
Later in the same morning, however, the same caller changed
the delivery instructions; instead of the checks being delivered
to her office at Philamlife, she would herself pick up the checks
or send her niece, Rosemarie Fernando, to pick them up.
Eustaquio then told her that if it were her niece who was going
to get the checks, her niece would have to being a written
authorization from her to pick up the checks. This telephone
conversation ended with the caller's statement that "definitely"
it would be her niece, Rosemarie Fernando, who would pick up
the checks. Thus, Eustaquio had to hurriedly go to the
dispatcher, Bernardo Laderas, to tell him of the new delivery
instructions for the checks; in fact, he changed the delivery
instruction on the purchase order slip, writing thereon
"Rosemarie Fernando release only with authority to pick up.
It was, in fact Rosemarie Fernando who got the two checks from
the dispatcher, as shown by the delivery receipt. Actually, as it
turned out, the same impersonated both Eligia G. Fernando and
Rosemarie Fernando. Although the checks represented the
termination proceeds of Eligia G. Fernando's placement, not just
a roll-over of the placement, the dispatcher failed to get or to
require the surrender of the promissory note evidencing the
placement. There is also no showing that Eligia G. Fernando's
purported signature on the letter requesting the pretermination
and the latter authorizing Rosemarie Fernando to pick up the
two checks, both of which letters were presumably handed to
the dispatcher by Rosemarie Fernando, was compared or
verified with Eligia G. Fernando's signature in BPI's file. Such
purported signature has been established to be forged although
it has a "close similarity" to the real signature of Eligia G.
Fernando (TSN of January 15, 1985, pp. 24 and 26).
The story's scene now shifted when, in the afternoon of October
13, 1981, a woman who represented herself to be Eligia G.
Fernando applied at CBC's Head Office for the opening of a
current account.
She was accompanied and introduced to Emily Sylianco Cuaso,
Cash Supervisor, by Antonio Concepcion whom Cuaso knew to
have opened, earlier that year, an account upon the
introduction of Valentin Co, a long-standing "valued client" of
CBC. What Cuaso indicated in the application form, however,
was that the new client was introduced by Valentin Co, and with
her initials on the form signifying her approval, she referred the
application to the New Accounts Section for processing. As
finally proceeds, the application form shows the signature of
"Eligia G. Fernando", "her" date of birth, sex, civil status,
nationality, occupation ("business woman"), tax account
number, and initial deposit of P10,000.00. This final approval of
the new current account is indicated on the application form by
the initials of Regina G. Dy, Cashier, who did not interview the
new client but affixed her initials on the application form after
reviewing it. The new current account was given the number:
26310-3.
The following day, October 14, 1981, the woman holding herself
out as Eligia G. Fernando deposited the two checks in
controversy with Current Account No. 126310-3. Her
endorsement on the two checks was found to conform with the
depositor's specimen signature. CBC's guaranty of prior
endorsements and/or lack of endorsement was then stamped on
the two checks, which CBC forthwith sent to clearing and which
BPI cleared on the same day.
Two days after, withdrawals began on Current Account No.
26310-3: On October 16, 1981, by means of Check No. 240005
dated the same day for P1,000,000.00, payable to "cash", which
the woman holding herself out as Eligia G. Fernando encashed
over the counter, and Check No. 240003 dated October 15, 1981
for P48,500.00, payable to "cash" which was received through
clearing from PNB Pasay Branch; on October 19, 1981, by means
of Check No. 240006 dated the same day for P1,000,000.00,
payable to "cash," which the woman identifying herself as Eligia
G. Fernando encashed over the counter; on October 22, 1981,
by means of Check No. 240007 dated the same day for
P370,000.00, payable to "cash" which the woman herself also
encashed over the counter; and on November 4, 1981, by means
of Check No. 240001 dated November 3, 1981 for P4,100.00,
payable to "cash," which was received through clearing from Far
East Bank.
All these withdrawals were allowed on the basis of the
verification of the drawer's signature with the specimen
signature on file and the sufficiency of the funds in the account.
However, the balance shown in the computerized teller terminal
when a withdrawal is serviced at the counter, unlike the ledger
or usual statement prepared at month-end, does not show the
account's opening date, the amounts and dates of deposits and
withdrawals. The last withdrawal on November 4, 1981 left
Current Account No. 26310-3 with a balance of only P571.61.
The day of reckoning came on November 11, 1981, the maturity
date of Eligia G. Fernado's money market placement with BPI,
when the real Eligia G. Fernando went to BPI for the roll-over of
her placement. She disclaimed having preterminated her
placement on October 12, 1981. She executed an affidavit
stating that while she was the payee of the two checks in
controversy, she never received nor endorsed them and that her
 purported signature on the back of the checks was not hers but
forged. With her surrender of the original of the promissory note
(No. 35623 with maturity value of P2,462,243.19) evidencing the
placement which matured that day, BPI issued her a new
promissory note (No. 40314 with maturity date of December 23,
1981 and maturity value of P2,500.266.77) to evidence a roll-
over of the placement.
On November 12, 1981, supported by Eligia G. Fernando's
affidavit, BPI returned the two checks in controversy to CBC for
the reason "Payee's endorsement forged". A ping-pong started
when CBC, in turn, returned the checks for reason "Beyond
Clearing Time", and the stoppage of this ping-pong, as we
mentioned at the outset, prompted the filing of this case.
Investigation of the fraud by the Presidential Security Command
led to the filing of criminal actions for "Estafa Thru Falsification
of Commercial Documents" against four employees of BPI,
namely Quirino Victorio, Virgilio Gayon, Bernardo Laderas and
Jorge Atayan, and the woman who impersonated Eligia G.
Fernando, Susan Lopez San Juan. Victorio and Gayon were both
bookkeepers in BPI's Money Market Operations Department,
Laderas was a dispatcher in the same department. . . . (Rollo,
pp. 74-79)
The Arbitration Committee ruled in favor of petitioner BPI. The dispositive portion
of the decision reads:
WHEREFORE, we adjudge in favor of the Bank of the Philippine
Islands and hereby order China Banking Corporation to pay the
former the amount of P1,206,607.58 with interest thereon at
12% per annum from August 12, 1983, or the date when PCHC,
pursuant to its procedure for compulsory arbitration of the ping-
pong checks under Stockholders' Resolution No. 6-83 was
implemented, up to the date of actual payment.
Costs of suit in the total amount of P7,250.00 are to be assessed
the litigant banks in the following proportion:
a) Plaintiff BPI —– P1,812.50
b) Defendant China — P5,437.50
Total Assessment — P7,250.00
conformably with PCHC Resolution Nos. 46-83 dated October 25,
1983 and 4-85 dated February 25, 1985.
The PCHC is hereby directed to effect the corresponding entries
to the litigant banks' clearing accounts in accordance with the
foregoing decision. (Rollo, pp. 97-98)
However, upon motion for reconsideration filed by respondent CBC, the Board of
Directors of the PCHC reversed the Arbitration Committee's decision in its Order,
the dispositive portion of which reads:
WHEREFORE, the Board hereby reconsiders the Decision of the
Arbitration Committee dated March 24, 1986 in Arbicom Case
No. 183-029 and in lieu thereof, one is rendered modifying the
decision so that the Complaint of BPI is dismissed, and on the
Counterclaim of CBC, BPI is sentenced to pay CBC the sum of
P1,206,607.58. In view of the facts, no interest nor attorney's
fees are awarded. BPI shall also bear 75% or P5,437.50 and CBC,
25% or P1,812.50 of the cost of the Arbitration proceedings
amounting to P7,250.00.
The PCHC is hereby directed to debit the clearing account of
the BPI the sum of P1,206,607.58 and credit the same to that of
CBC. The cost of Arbitration proceedings are to be debited from
the accounts of the parties in the proportion above stated.
(Rollo, pp. 112-113)
BPI then filed a petition for review of the abovestated order with the Regional
Trial Court of Makati. The trial court dismissed the petition but modified the
order as can be gleaned from the dispositive portion of its decision quoted earlier.
Not satisfied with the trial court's decision petitioner BPI filed with us a petition
for review on certiorari under Rule 45 of the Rules of Court. The case was
docketed as G.R. No. 96376. However, in a Resolution dated February 6, 1991, we
referred the case to the Court of Appeals for proper determination and
disposition. The appellate court affirmed the trial court's decision.
Hence, this petition.
In a resolution dated May 20, 1992 we gave due course to the petition:
Petitioner BPI now asseverates:
I
THE DECISION AND RESOLUTION OF THE RESPONDENT COURT
LEAVES THE UNDESIRABLE RESULT OF RENDERING NUGATORY
THE VERY PURPOSE FOR THE UNIFORM BANKING PRACTICE OF
REQUIRING THE CLEARING GUARANTEE OF COLLECTING BANKS.
II
CONTRARY TO THE RULING OF THE RESPONDENT COURT, THE
PROXIMATE CAUSE FOR THE LOSS OF THE PROCEEDS OF THE
TWO CHECKS IN QUESTION WAS THE NEGLIGENCE OF THE
EMPLOYEES OF CBC AND NOT BPI; CONSEQUENTLY, EVEN UNDER
SECTION 23 OF THE NEGOTIABLE INSTRUMENTS LAW, BPI WAS
NOT PRECLUDED FROM RAISING THE DEFENSE OF FORGERY.
III
THE RESPONDENT COURT COMMITTED REVERSIBLE ERROR IN
FAILING TO APPRECIATE THE FACT THAT CBC HAD THE "LAST
CLEAR CHANCE" OF AVOIDING THE LOSS OCCASIONED BY THE
FRAUDULENT ACTS INVOLVED IN THE INSTANT CASE. (Rollo, p.
24)
The main issues raised in the assignment of errors are: When a bank (in this case
CBC) presents checks for clearing and payment, what is the extent of the bank's
warranty of the validity of all prior endorsements stamped at the back of the
checks? In the event that the payee's signature is forged, may the drawer/drawee
bank (in this case BPI) claim reimbursement from the collecting bank [CBC] which
earlier paid the proceeds of the checks after the same checks were cleared by
petitioner BPI through the PCHC?
Anent the first issue, petitioner BPI contends that respondent CBC's clear
warranty that "all prior endorsements and/or lack of endorsements guaranteed"
stamped at the back of the checks was an unrestrictive clearing guaranty that all
prior endorsements in the checks are genuine. Under this premise petitioner BPI
asserts that the presenting or collecting bank, respondent CBC, had an
unquestioned liability when it turned out that the payee's signature on the checks
were forged. With these circumstances, petitioner BPI maintains that
considerations of relative negligence becomes totally irrelevant.
In sum, petitioner BPI theorizes that the Negotiable Instruments Law, specifically
Section 23 thereof is not applicable in the light of the absolute liability of the
representing or collecting bank as regards forged endorsements in consonance
with the clearing guarantee requirement imposed upon the presenting or
collecting banks "as it is worded today."
Petitioner BPI first returned to CBC the two (2) checks on the ground that "Payee's
endorsement (was) forged" on November 12, 1981. At that time the clearing
regulation then in force under PCHC's Clearing House Rules and Regulations as
revised on September 19, 1980 provides:
Items which have been the subject of material alteration or
items bearing a forged endorsement when such endorsement is
necessary for negotiation shall be returned within twenty four
(24) hours after discovery of the alteration or the forgery, but in
no event beyond the period prescribed by law for the filing of a
legal action by the returning bank/branch institution or entity
against the bank/branch, institution or entity sending the same.
(Section 23)
In the case of Banco de Oro Savings and Mortgage Bank v. Equitable Banking
Corporation (157 SCRA 188 [1988]) the clearing regulation (this is the present
clearing regulation) at the time the parties' dispute occurred was as follows:
Sec. 21. . . . .
Items which have been the subject of material alteration or
items bearing forged endorsement when such endorsement is
necessary for negotiation shall be returned by direct
presentation or demand to the Presenting Bank and not through
the regular clearing house facilities within the period prescribed
by law for the filing of a legal action by the returning
bank/branch, institution or entity sending the same.
It is to be noted that the above-cited clearing regulations are substantially the
same in that it allows a return of a check "bearing forged endorsement when such
endorsement is necessary for negotiation" even beyond the next regular clearing
although not beyond the prescriptive period "for the filing of a legal action by the
returning bank."
Bearing in mind this similarity in the clearing regulation in force at the time the
forged checks in the present case and the Banco de Oro case were dishonored and
returned to the presenting or collecting banks, we can be guided by the principles
enunciated in the Banco de Oro case on the relevance of negligence of the
drawee vis-a-vis the forged checks.
The facts in the Banco de Oro case are as follows: Sometime in March, April, May
and August 1983 Equitable Banking Corporation through its Visa Card Department
drew six (6) crossed Manager's check with the total amount of Forty Five Thousand
Nine Hundred and Eighty Two Pesos and Twenty Three Centavos (P45,982.23) and
payable to certain member establishments of Visa Card. Later, the checks were
deposited with Banco de Oro to the credit of its depositor, a certain Aida Trencio.
Following normal procedures, and after stamping at the back of the checks the
endorsements: "All prior and/or lack of endorsements guaranteed" Banco de Oro
sent the checks for clearing through the PCHC. Accordingly, Equitable Banking
Corporation paid the checks; its clearing amount was debited for the value of the
checks and Banco de Oro's clearing account was credited for the same amount.
When Equitable Banking Corporation discovered that the endorsements at the
back of the checks and purporting to be that of the payees were forged it
presented the checks directly to Banco de Oro for reimbursement. Banco de Oro
refused to reimburse Equitable Banking Corporation for the value of the checks.
Equitable Banking Corporation then filed a complaint with the Arbitration
Committees of the PCHC. The Arbiter, Atty. Ceasar Querubin, ruled in favor of
Equitable Banking Corporation. The Board of Directors of the PCHC affirmed the
Arbiter's decision. A petition for review of the decision filed by Banco de Oro with
the Regional Trial Court of Quezon City was dismissed. The decision of the PCHC
was affirmed in toto.
One of the main issues threshed out in this case centered on the effect of Banco
de Oro's (representing or collecting bank) guarantee of "all prior endorsements
and/or lack of endorsements" at the back of the checks. A corollary issue was the
effect of the forged endorsements of the payees which were late discovered by
the Equitable Banking Corporation (drawee bank) resulting in the latter's claim for
reimbursement of the value of checks after it paid the proceeds of the checks.
We agreed with the following disquisition of the Regional Trial Court, to wit:
Anent petitioner's liability on said instruments, this court is in
full accord with the ruling of the PCHC Board of Directors that:
In presenting the checks for clearing and for payment, the
defendant made an express guarantee on the validity of "all
prior endorsements." Thus, stamped at the back of the checks
are the defendant's clear warranty: ALL PRIOR ENDORSEMENTS
AND/OR LACK OF ENDORSEMENTS GUARANTEED. Without such
warranty, plaintiff would not have paid on the checks.
No amount of legal jargon can reverse the clear meaning of
defendant's warranty. As the warranty has proven to be false
and inaccurate, the defendant is liable for any damage arising
out of the falsity of its representation.
The principle of estoppel, effectively prevents the defendant
from denying liability for any damage sustained by the plaintiff
which, relying upon an action or declaration of the defendant,
paid on the checks. The same principle of estoppel effectively
prevents the defendant from denying the existence of the
checks. (pp. 10-11, Decision, pp. 43-44, Rollo) (at pp. 194-195)
We also ruled:
 Apropos the matter of forgery in endorsements, this Court has
presently succintly emphasized that the collecting bank or last
endorser generally suffers the loss because it has the duty to
ascertain the genuineness of all prior endorsements considering
that the act of presenting the check for payment to the drawee
is an assertion that the party making the presentment has done
its duty to ascertain the genuineness of the endorsements. This
is laid down in the case of PNB v. National City Bank. (63 Phil.
1711) In another case, this court held that if the drawee-bank
discovers that the signature of the payee was forged after it has
paid the amount of the check to the holder thereof, it can
recover the amount paid from the collecting bank.
xxx xxx xxx
The point that comes uppermost is whether the drawee bank
was negligent in failing to discover the alteration or the
forgery. (Emphasis supplied)
xxx xxx xxx
The court reproduces with approval the following disquisition of
the PCHC in its decision.
xxx xxx xxx
III. Having Violated Its Warranty On Validity Of All
Endorsements, Collecting Bank Cannot Deny Liability To Those
Who Relied On Its Warranty.
xxx xxx xxx
The damage that will result if judgment is not rendered for the
plaintiff is irreparable. The collecting bank has privity with the
depositor who is the principal culprit in this case. The
defendant knows the depositor; her address and her
history. Depositor is defendant's client. It has taken a risk on its
depositor when it allowed her to collect on the crossed-checks.
Having accepted the crossed checks from persons other than
the payees, the defendant is guilty of negligence; the risk of
wrongful payment has to be assumed by the
defendant. (Emphasis supplied, at pp. 198-202)
As can be gleaned from the decision, one of the main considerations in affirming
the PCHC's decision was the finding that as between the drawee bank (Equitable
Bank) and the representing or collecting bank (Banco de Oro) the latter was
negligent and thus responsible for undue payment.
Parenthetically, petitioner BPI's theory that the present clearing guarantee
requirement imposed on the representing or collecting bank under the PCHC rules
and regulations is independent of the Negotiable Instruments Law is not in order.
Another reason why the petitioner's theory is uncalled for is the fact that the
Negotiable Instruments Law (Act No. 2031) applied to negotiable instruments as
defined under section one thereof. Undeniably, the present case involves checks
as defined by and under the coverage of the Negotiable Instruments Law. To
affirm the theory of the petitioner would, therefore, violate the rule that rules
and regulations implementing the law should conform to the law, otherwise the
rules and regulations are null and void. Thus, we held Shell Philippines,
Inc. v. Central Bank of the Philippines (162 SCRA 628 [1988]):
. . . while it is true that under the same law the Central Bank
was given the authority to promulgate rules and regulations to
implement the statutory provision in question, we reiterate the
principle that this authority is limited only to carrying into
effect what the law being implemented provides.
In People v. Maceren (79 SCRA 450, 458 and 460), this Court
ruled that:
Administrative regulations adopted under legislative authority
by a particular department must be in harmony with the
provisions of the law, and should be for the sole purpose of
carrying into effect its general provisions. By such regulations,
of course, the law itself cannot be extended. (U.S. v. Tupasi
Molina, supra). An administrative agency cannot amend an act
of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon v.
Members of the Board of Administrators, L-25619, June 30,
1970, 33 SCRA 585; Manuel v. General Auditing Office, L-28952,
December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L-21906,
August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law
as it has been enacted. The power cannot be extended to
amending or expanding the statutory requirements or to
embrace matters not covered by the statute. Rules that subvert
the statute cannot be sanctioned. (University of Santo Tomas v.
Board of Tax Appeals, 93 Phil. 376, 382,citing 12 C.J. 845-46. as
to invalid regulations, see Collector of Internal Revenue v.
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del
Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51
SCRA 340, 349).
xxx xxx xxx
. . . The rule or regulation should be within the scope of the
statutory authority granted by the legislature to the
administrative agency. (Davis, Administrative Law, p. 194, 197,
cited in Victorias Milling Co., Inc. v. Social Security Commission,
114 Phil. 555, 558).
In case of discrepancy between the basic law and a rule or
regulation issued to implement said law the basic law prevails
because said rule or regulation cannot go beyond the terms and
provisions of the basic law (People v. Lim 108 Phil. 1091). (at
pp. 633-634)
Section 23 of the Negotiable Instruments Law states:
When signature is forged or made without the authority of the
person whose signature it purports to be, it is wholly inoperative
and no right to retain the instrument, or to give discharge
therefore, or to enforce payment thereof, against any party
thereto, can be acquired through or under such forged
 signature, unless the party against whom it is sought to enforce
such right is precluded from setting up the forgery or want of
authority.
There are two (2) parts of the provision. The first part states the general rule
while the second part states the exception to the general rule. The general rule is
to the effect that a forged signature is "wholly inoperative", and payment made
"through or under such signature" is ineffectual or does not discharge the
instrument. The exception to this rule is when the party relying in the forgery is
"precluded from setting up the forgery or want of authority. In this jurisdiction we
recognize negligence of the party invoking forgery as an exception to the general
rule. (See Banco de Oro Savings and Mortgage Bank v. Equitable Banking
Corporation supra; Philippine National Bank v. Quimpo, 158 SCRA 582 [1988];
Philippine National Bank v. Court of Appeals, 25 SCRA 693 [1968]; Republic v.
Equitable Banking Corporation, 10 SCRA 8 [1964]; National Bank v. National City
Bank of New York, 63 Phil. 711 [1936]; San Carlos Milling Co. v. Bank of P.I., 59
Phil. 59 [1933]). In these cases we determined the rights and liabilities of the
parties under a forged endorsement by looking at the legal effects of the relative
negligence of the parties thereto.
In the present petition the payee's names in the two (2) subject checks were
forged. Following the general rule, the checks are "wholly inoperative" and of no
effect. However, the underlying circumstances of the case show that the general
rule on forgery is not applicable. The issue as to who between the parties should
bear the loss in the payment of the forged checks necessities the determination of
the rights and liabilities of the parties involved in the controversy in relation to
the forged checks.
The records show that petitioner BPI as drawee bank and respondent CBC as
representing or collecting bank were both negligent resulting in the encashment
of the forged checks.
The Arbitration Committee in its decision analyzed the negligence of the
employees of petitioner BPI involved in the processing of the pre-termination of
Eligia G. Fernando's money market placement and in the issuance and delivery of
the subject checks in this wise:
a) The impostor could have been readily unmasked by a mere
telephone call, which nobody in BPI bothered to make to Eligia
G. Fernando, a vice-president of Philamlife (Annex C, p. 13).
b) It is rather curious, too, that the officer who used to handle
Eligia G. Fernando's account did not do anything about the
account's pre-termination (Ibid, p. 13).
c) Again no verification appears to have been made by (sic)
Eligia G. Fernando's purported signature on the letter requesting
the pre-termination and the letter authorizing her niece to pick-
up the checks, yet, her signature was in BPI's file (Ibid., p. 13).
d) Another step that could have foiled the fraud, but which BPI
neglected to take, was requiring before the two checks in
controversy were delivered, the surrender of the promissory
note evidencing the money market placement that was
supposedly pre-terminated. (Rollo, p. 13).
The Arbitration Committee, however, belittled petitioner BPI's negligence
compared to that of respondent CBC which it declared as graver and the
proximate cause of the loss of the subject checks to the impostor who
impersonated Eligia G. Fernando. Petitioner BPI now insists on the adoption of the
Arbitration Committee's evaluation of the negligence of both parties, to wit:
a) But what about the lapses of BPI's employees who processed
the pretermination of Eligia G. Fernando's placement and issued
the checks? We do not think it was a serious lapse not to confirm
the telephone request for pretermination purportedly made by
Eligia G. Fernando, considering that it is common knowledge
that business in the money market is done mostly by telephone.
Then, too, the initial request of the caller was for the two
checks representing the pretermination proceeds to be
delivered to "her" office, meaning Eligia G. Fernando's office at
Philamlife, this clever ruse must have put off guard the
employee preparing the "purchase order slip", enough at least
for him to do away with having to call Eligia G. Fernando at her
office. (Annex C at p. 17).
b) We also do not think it unusual that Penelope Bulan, who
used to handle Eligia G. Fernando's account, should do nothing
about the request for pretermination and leave it to Eustaquio
to process the pretermination. In a bank the of BPI, it would be
quite normal for an officer to take over from another the
handling of an account. (Ibid. p. 17)
c) The failure to verify or compare Eligia G. Fernando's
purported signature on the letter requesting the pretermination
and the letter authorizing the pick-up of the checks in
controversy with her signature in BPI's file showed lack of care
and prudence required by the circumstances, although it is
doubtful that such comparison would have disclosed the
deception considering the "close similarity" between her
purported signature and her signature in BPI's file. (Ibid., p. 17).
d) A significant lapse was, however, committed when the two
checks in controversy were delivered without requiring the
surrender of the promissory note evidencing the placement that
was supposedly preterminated. Although, as we already said, it
is hard to determine whether the failure to require the
surrender of the promissory note was a deliberate act of
Laderas, the dispatcher, or simply because the "purchase order
slip" note, (sic) the fact remains that such failure contributed to
the consummation of the fraud. (Ibid., p. 17-18)
The Arbitration Committee Decision's conclusion was expressed
thus —
Except for Laderas, not one of the BPI
personnel tasked with the pretermination of
Eligia G. Fernando's placement and the
issuance of the pretermination checks
colluded in the fraud, although there may
have been lapses of negligence on their part
 which we shall discuss later. The secreting out
of BPI of Fernando's specimen signature,
which, as admitted by the impostor herself
(Exhibit E-2, page 5), helped her in forging
Fernando's signature was no doubt an "inside
job" but done by any of the four employees
colluding in the fraud, not by the personnel
directly charged with the custody of
Fernando's records. (Annex C, p. 15)
With respect to the negligence of the CBC employees in the
payment of the two (2) BPI cashier's checks involved in this
case, the Arbitration Committee's Decision made
incontrovertible findingsundisputed in the statement of facts
found in the Court of Appeals' decision of 8 August 1991, the
Regional Trial Court decision of 28 November 1990 and the
PCHC Board of Directors' Order of 26 August 1986 (Annexes A, E,
D, respectively). These findings point to negligence of the CBC
employees which led to: (a) the opening of the impostor's
current account in the name of Eligia G. Fernando; (b) the
deposit of said account of the two (2) checks in controversy and
(c) the withdrawal of their proceeds from said account.
The Arbitration Committee found that —
1. Since the impostor presented only her tax
account number as a means of identification,
we feel that Emily Sylianco Cuaso, Cash
Supervisor, approved the opening of her
current account in the name of Eligia G.
Fernando on the strength of the introduction
of Antonio Concepcion who had himself
opened an account earlier that year. That Mrs.
Cuaso was not comfortable with the
introduction of the new depositor by
Concepcion is betrayed by the fact that she
made it appear in the application form that
the new depositor was introduced by Valentin
Co a long-standing valued client of CBC who
had introduced Concepcion when he opened
his account. We find this misrepresentation
significant because when she reviewed the
application form she assumed that the new
client was introduced by Valentin Co as
indicated in the application form (tsn of March
19, 1985, page 13). Thus we find that the
impostor was able to open with CBC's current
account in the name of Eligia G. Fernando due
to the negligence, if not misrepresentation, of
its Cash Supervisor, (Annex C, p. 18).
2. Even with negligence attending the
impostor's opening of a current account, her
encashment of the two checks in controversy
could still have been prevented if only the
care and diligence demanded by the
circumstances were exercised. On October 14,
1981, just a day after she opened her account,
the impostor deposited the two checks which
had an aggregate value of P2,413,215.16,
which was grossly disproportionate to her
initial deposit of P10,000. The very date of
both checks, October 12, 1981, should have
tipped off the real purpose of the opening of
the account on October 13, 1981. But what
surely can be characterized only as
abandonment of caution was allowing the
withdrawal of the checks' proceeds which
started on October 16, 1981 only two days
after the two checks were deposited; by
October 22, 1981, the account had been
emptied of the checks' proceeds. (Annex C, p.
19).
3. We cannot accept CBC's contention that "big
withdrawals" are "usual business" with it. Huge
withdrawals might be a matter of course with
an established account but not for a newly
opened account, especially since the supposed
check proceeds being withdrawn were grossly
disproportionate to the initial cash deposit.
(Annex C, p. 19).
As intimated earlier, the foregoing findings of fact were not
materially disputed either by the respondent PCHC Board of
Directors or by the respondent courts (compare statement of
facts of respondent court as reproduced in pp. 9-11 of this
petition).
Having seen the negligence of the employees of both Banks, the
relevant question is: which negligence was graver. The
Arbitration Committee's Decision found and concluded thus —
Since there were lapses by both BPI and CBC,
the question is: whose negligence was the
graver and which was the proximate cause of
the loss? Even viewing BPI's lapses in the worst
light, it can be said that while its negligence
may have introduced the two checks in
controversy into the commercial stream. CBC's
lack of care in approving the opening with it of
the impostor's current account, and its
allowing the withdrawal's of the checks'
proceeds, the aggregate value of which was
grossly disproportionate to the initial cash
deposit, so soon after such checks were
deposited, caused the "payment" of the
checks. Being closest to the vent of loss,
 therefore, CBC's negligence must be held to be
proximate cause of the loss. (Annex C, pp. 19-
20) (Rollo, pp. 38-41)
While it is true that the PCHC Board of Directors, and the lower courts did not
dispute the findings of facts of the Arbitration Committee, the PCHC Board of
Directors evaluated the negligence of the parties, to wit:
The Board finds the ruling that the negligence of the employees
of CBC is graver than that of the BPI not warranted by the facts
because:
1. The acts and omissions of which BPI employees are guilty are
not only negligent but criminal as found by the decision.
2. The act of BPI's dealer-trainee Eustaquio of disclosing
information about the money market placement of its client
over the telephone is a violation, if not of Republic Act 1405, of
Sec. 87 (a) of the General Banking Act which penalizes any
officer-employee or agent of any banking institution who
discloses to any unauthorized person any information relative to
the funds or properties in the custody of the bank belonging to
private individual, corporations, or any other entity; and the
bland excuse given by the decision that "business in the money
market is done mostly by the telephone" cannot be accepted nor
tolerated for it is an elementary rule of law that no custom or
usage of business can override what a law specifically provides.
(Ang Tek v. CA, 87 Phil. 383).
3. The failure of BPI employees to verify or compare Eligia G.
Fernando's purported signature on the letter requesting for pre-
termination and the letter authorizing the pick-up of the checks
in controversy with the signatures on file is not even justified
but admitted in the decision as showing lack of care and
prudence required by the circumstances. The conjectural
excuse made in the decision that "it is doubtful that such
comparison would have disclosed the deception" does not give
an excuse for the omission by BPI employees of the act of
verifying the signature, a duty which is the basic requirement of
all acts in the bank. From the very first time an employee
enters the services of a bank up to the time he becomes the
highest officer thereof, the cautionary rule is drilled on him to
always be sure that when he acts on the basis of any signature
presented before him, the signature is to be verified as genuine
and that if the bank acts on the basis of a forgery of such
signature, the bank will be held liable. There can be no excuse
therefore for such an omission on the part of BPI employees.
4. The decision admits that:
A significant lapse was, however, committed
when the two checks in controversy were
delivered without requiring the surrender of
the promissory note evidencing the placement
that was supposedly preterminated.
This omission of the BPI to require the surrender of the
promissory notes evidencing the placement is justified by the
decision by saying that Sec. 74 of the Negotiable Instrument Law
is not violated by this omission of the BPI employees because
said provision is intended for the benefit of the person paying
(in this case the BPI) so that since the omission to surrender
having been waived by BPI, so the non-surrender does not
invalidate the payment. The fallacy of this argument is that the
in this case is: whether or not such non-surrender is a necessary
ingredient in the cause of the success of the fraud and not
whether or not the payment was valid. This excuse may perhaps
be acceptable if the omission did not cause damage to any other
person. In this case, however, it did cause tremendous damage.
Moreover, this statement obviously overlooks the provision in
Art. 1240 of the Civil Code requiring the payor (which in this
case is the BPI) to be sure he pays to the right person and as
Art. 1242 states, he can claim good faith in paying to the right
person only if he pays to the person possession of the credit
(which in this case is the promissory note evidencing the money
market placement). Clearly therefore, the excuse given in the
decision for the non-surrender of this promissory note
evidencing the money market placement cannot be accepted.
xxx xxx xxx
The decision, however, discusses in detail the negligent acts of
the CBC in its lapses or certain requirements in the opening of
the account and in allowing withdrawals against the deposited
checks soon after the deposit thereof. As stated by the decision
however, in computerized banks the history of the account is
not shown in the computer terminal whenever a withdrawal is
made.
The Board therefore believes that these withdrawals, without
any further showing that the CBC employees "had actual
knowledge of the infirmity or defect, or knowledge of such
facts" (Sec. 56, Negotiable Instruments Law) that their action in
accepting their checks for deposit and allowing the withdrawals
against the same "amounted to bad faith" cannot be considered
as basis for holding CBC liable. (Rollo, pp. 107-111)
Banks handle daily transactions involving millions of pesos. By the very nature of
their work the degree of responsibility, care and trustworthiness expected of
their employees and officials is far greater than those of ordinary clerks and
employees. For obvious reasons, the banks are expected to exercise the highest
degree of diligence in the selection and supervision of their employees.
In the present case, there is no question that the banks were negligent in the
selection and supervision of their employees. The Arbitration Committee, the
PCHC Board of Directors and the lower court, however disagree in the evaluation
of the degree of negligence of the banks. While the Arbitration Committee
declared the negligence of respondent CBC graver, the PCHC Board of Directors
and the lower courts declared that petitioner BPI's negligence was graver. To the
extent that the degree of negligence is equated to the proximate cause of the
loss, we rule that the issue as to whose negligence is graver is relevant. No matter
how many justifications both banks present to avoid responsibility, they cannot
erase the fact that they were both guilty in not exercising extraordinary diligence
in the selection and supervision of their employees. The next issue hinges on
whose negligence was the proximate cause of the payment of the forged checks
by an impostor.
Petitioner BPI accuses the Court of Appeals of inconsistency when it affirmed the
PCHC's Board of Directors' Order but in the same breath declared that the
negligent acts of the CBC employees occurred immediately before the actual loss.
In this regard petitioner BPI insists that the doctrine of last clear chance
enunciated in the case of Picart v. Smith(37 Phil. 809 [1918]) should have been
applied considering the circumstances of the case.
In the Picart case, Amado Picart was then riding on his pony over the Carlatan
Bridge at San Fernando, La Union when Frank Smith approached from the opposite
direction in a car. As Smith neared the bridge he saw Picart and blew his horn to
give warning of his approach. When he was already on the bridge Picart gave two
more successive blasts as it appeared to him that Picart was not observing the
rule of the road. Picart saw the car coming and heard the warning signals. An
accident then ensued resulting in the death of the horse and physical injuries
suffered by Picart which caused him temporary unconsciousness and required
medical attention for several days. Thereafter, Picart sued Smith for damages.
We ruled:
The question presented for decision is whether or not the
defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil
obligation to repair the damage done; and we are of the opinion
that he is so liable. As the defendant started across the bridge,
he had the right to assume that the horse and rider would pass
over to the proper side; but as he moved toward the center of
the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was
too late for the horse to cross with safety in front of the moving
vehicle. In the nature of things this change of situation
occurred while the automobile was yet some distance
away; and from this moment it was no longer within the power
of the plaintiff to escape being run down by going to a place of
greater safety. The control of the situation had then passed
entirely to the defendant; and it was his duty to either to bring
his car to an immediate stop or, seeing that there were no
other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of
collision. Instead of doing this, the defendant ran starlight on
until he was almost upon the horse. He was, we think, deceived
into doing this by the fact that the horse had not yet exhibited
fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was
unacquainted with automobiles, he might get excited and jump
under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in
our opinion, negligent in the eyes of the law.
The test by which by which to determine the existence of
negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of
negligence.
xxx xxx xxx
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such
case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last fair
chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the
prior negligence of the other party."
Applying these principles, petitioner BPI's reliance on the doctrine of last clear
chance to clear it from liability is not well-taken. CBC had no prior notice of the
fraud perpetrated by BPI's employees on the pretermination of Eligia G.
Fernando's money market placement. Moreover, Fernando is not a depositor of
CBC. Hence, a comparison of the signature of Eligia G. Fernando with that of the
impostor Eligia G. Fernando, which respondent CBC did, could not have resulted
in the discovery of the fraud. Hence, unlike in the Picart case herein the
defendant, had he used reasonable care and caution, would have recognized the
risk he was taking and would have foreseen harm to the horse and the plaintiff
but did not, respondent CBC had no way to discover the fraud at all. In fact the
records fail to show that respondent CBC had knowledge, actual or implied, of the
fraud perpetrated by the impostor and the employees of BPI.
However, petitioner BPI insists that even if the doctrine of proximate cause is
applied, still, respondent CBC should be held responsible for the payment to the
impostor of the two (2) checks. It argues that the acts and omissions of
respondent CBC are the cause "that set into motion
the actual and continuous sequence of events that produced the injury
and without which the result would not have occurred." On the other hand, it
assets that its acts and omissions did not end in a loss. Petitioner BPI anchors its
argument on its stance that there was "a gap, a hiatus, an interval between the
issuance and delivery of said checks by petitioner BPI to the impostor and their
actual payment of CBC to the impostor. Petitioner BPI points out that the gap of
one (1) day that elapsed from its issuance and delivery of the checks to the
impostor is material on the issue of proximate cause. At this stage, according to
petitioner BPI, there was yet no loss and the impostor could have decided to
desist from completing the same plan and could have held to the checks without
negotiating them.
We are not persuaded.
In the case of Vda. de Bataclan, et al, v. Medina (102 Phil. 181 [1957]), we had
occasion to discuss the doctrine of proximate cause.
Briefly, the facts of this case are as follows:
At about 2:00 o'clock in the morning of September 13, 1952 a bus carrying about
eighteen (18) passengers on its way to Amandeo, Cavite figured in an accident.
While the bus was running, one of the front tires burst and the bus began to
zigzag until it fell into a canal on the right side of the road and turned turtle.
Some passengers managed to get out from the overturned bus except for four (4)
passengers, among them, Bataclan. The passengers who got out heard shouts for
help from Bataclan and another passenger Lara who said they could not get out
from the bus. After half an hour, about ten men came, one of them carrying a
lighted torch made of bamboo with a wick on one end fueled with petroleum.
These men approached the overturned bus, and almost immediately, a fierce fire
started burning and all but consuming the bus including the four (4) passengers
trapped inside. It turned out that as the bus overturned, gasoline began to leak
and escape from the gasoline tank on the side of the chassis spreading over and
permeating the body of the bus and the ground under and around it. The lighted
torch brought by one of the men who answered the call for help set it on fire. On
the same day, the charred bodies of the trapped passengers were removed and
identified. By reason of his death, Juan Bataclan's wife and her children filed a
suit for damages against Maximo Medina, the operator and owner of the bus in the
then Court of First Instance of Cavite. The trial court ruled in favor of the
defendant. However, we reversed and set aside the trial court's decision and said:
There is no question that under the circumstances, the
defendant carrier is liable. The only question is to what degree.
The trial court was of the opinion that the proximate cause of
the death of Bataclan was not the overturning of the bus, but
rather the fire that burned the bus, including himself and his co-
passengers who were unable to leave it; that at the time the
fire started, Bataclan, though the must have suffered, physical
injuries, perhaps serious, was still alive and so damages were
awarded, not for his death, but for the physical satisfactory
definition of promote cause is found in Volume 38, pages 695-
696 of American Jurisprudence, cited by plaintiffs-appellants in
their brief. It is as follows:
. . . that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result
would not have occurred. And more comprehensively,
the proximate legal cause in that acting first and
producing the injury, either immediately or by setting
other events in motion, all constituting a natural and
continuous chain of events, each having a close causal
connection with its immediate predecessor, the final
event in the chain immediately effecting the injury as
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.
It may be that ordinarily, when a passenger bus overturns, and
pins down a passenger, merely causing him physical injuries, if
through some event, unexpected and extraordinary, the
overturned bus is set on fire, say, by lightning, or if some
highwaymen after looting the vehicle sets it on fire, and the
passenger is burned to death, on might still contend that the
proximate cause of his death was the fire and not the
overturning of the vehicle. But in the present case and under
the circumstances obtaining in the same, we do not hesitate to
hold that the proximate cause of the death of Bataclan was the
overturning of the bus, this for the reason that when the
vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or
unexpected;that the coming of the men with a lighted torch was
in response to the call for help, made not only by the
passengers, but most probably, by the driver and the conductor
themselves, and that because it was very dark (about 2:30 in
the morning), the rescuers had to carry a light with them; and
coming as they did from a rural area where lanterns and
flashlights were not available, they had to use a torch, the most
handy and available; and what was more natural than that said
rescuers should innocently approach the overturned vehicle to
extend the aid and effect the rescue requested from them. In
other words, the coming of the men with the torch was to be
expected and was natural sequence of the overturning of the
bus, the trapping of some of its passengers and the call for
outside help. (Emphasis Supplied, at pp. 185-187)
Again, applying the doctrine of proximate cause, petitioner BPI's contention that
CBC alone should bear the loss must fail. The gap of one (1) day between the
issuance and delivery of the checks bearing the impostor's name as payee and the
impostor's negotiating the said forged checks by opening an account and
depositing the same with respondent CBC is not controlling. It is
not unnatural or unexpected that after taking the risk of impersonating Eligia G.
Fernando with the connivance of BPI's employees, the impostor would complete
her deception by encashing the forged checks. There is therefore, greater reason
to rule that the proximate cause of the payment of the forged checks by an
impostor was due to the negligence of petitioner BPI. This finding,
notwithstanding, we are not inclined to rule that petitioner BPI must solely bear
the loss of P2,413,215.16, the total amount of the two (2) forged checks. Due
care on the part of CBC could have prevented any loss.
The Court cannot ignore the fact that the CBC employees closed their eyes to the
suspicious circumstances of huge over-the-counter withdrawals made immediately
after the account was opened. The opening of the account itself was accompanied
by inexplicable acts clearly showing negligence. And while we do not apply the
last clear chance doctrine as controlling in this case, still the CBC employees had
ample opportunity to avoid the harm which befell both CBC and BPI. They let the
opportunity slip by when the ordinary prudence expected of bank employees
would have sufficed to seize it.
Both banks were negligent in the selection and supervision of their employees
resulting in the encashment of the forged checks by an impostor. Both banks were
not able to overcome the presumption of negligence in the selection and
supervision of their employees. It was the gross negligence of the employees of
both banks which resulted in the fraud and the subsequent loss. While it is true
that petitioner BPI's negligence may have been the proximate cause of the loss,
respondent CBC's negligence contributed equally to the success of the impostor in
encashing the proceeds of the forged checks. Under these circumstances, we
apply Article 2179 of the Civil Code to the effect that while respondent CBC may
recover its losses, such losses are subject to mitigation by the courts.
(See Phoenix Construction Inc. v. Intermediate Appellate Courts, 148 SCRA 353
[1987]).
Considering the comparative negligence of the two (2) banks, we rule that the
demands of substantial justice are satisfied by allocating the loss of
P2,413,215.16 and the costs of the arbitration proceeding in the amount of
P7,250.00 and the cost of litigation on a 60-40 ratio. Conformably with this ruling,
no interests and attorney's fees can be awarded to either of the parties.
WHEREFORE, the questioned DECISION and RESOLUTION of the Court of Appeals
are MODIFIED as outlined above. Petitioner Bank of the Philippine Islands shall be
responsible for sixty percent (60%) while respondent China Banking Corporation
shall share forty percent (40%) of the loss of TWO MILLION FOUR HUNDRED
THIRTEEN THOUSAND, TWO HUNDRED FIFTEEN PESOS and SIXTEEN CENTAVOS
(2,413,215.16) and the arbitration costs of SEVEN THOUSAND, TWO HUNDRED
FIFTY PESOS (7,250.00). The Philippine Clearing House Corporation is hereby
directed to effect the corresponding entries to the banks' clearing accounts in
accordance with this decision. Costs in the same proportion against the Bank of
the Philippine Islands and the China Banking Corporation.
SO ORDERED
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
 EN BANC
G.R. No. L-7760 October 1, 1914
E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.
W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.
Bruce, Lawrence, Ross & Block for defendant.
MORELAND, J.:
This is an action brought to recover damages for injuries sustained in an
accident which occurred in Caloocan on the night of August 8, 1909.
The defendant is a corporation engaged in operating an electric street
railway in the city of Manila and its suburbs, including the municipality of
Caloocan. The plaintiff's residence in Caloocan fronts on the street along which
defendant's tracks run, so that to enter his premises from the street plaintiff is
obliged to cross defendant's tracks. On the night mentioned plaintiff drove home
in a calesa and in crossing the tracks to enter his premises the horse stumbled,
leaped forward, and fell, causing the vehicle with the rails, resulting in a sudden
stop, threw plaintiff from the vehicle and caused the injuries complained of.
It is undisputed that at the point where plaintiff crossed the tracks on the
night in question not only the rails were above-ground, but that the ties upon
which the rails rested projected from one-third to one-half of their depth out of
the ground, thus making the tops of the rails some 5 or 6 inches or more above
the level of the street.
It is admitted that the defendant was negligent in maintaining its tracks as
described, but it is contended that the plaintiff was also negligent in that he was
intoxicated to such an extent at the time of the accident that he was unable to
take care of himself properly and that such intoxication was the primary cause of
the accident.
The trial court held that both parties were negligent, but that the
plaintiff's negligence was not as great as defendant's and under the authority of
the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359) apportioned the damages
and awarded plaintiff a judgment of P1,000.
The question before us is stated by the defendant thus: "Accepting the
findings of the trial court that both plaintiff and defendant were guilty of
negligence, the only question to be considered is whether the negligence of
plaintiff contributed t the 'principal occurrence' or 'only to his own injury.' If the
former, he cannot recover; if the latter, the trial court was correct in
apportioning the damages."
The questioned as stated by plaintiff is as follows: "The main question at
issue is whether or not the plaintiff was negligent, and, if so, to what extent. If
the negligence of the plaintiff was the primary cause of the accident then, of
course, he cannot recover; if his negligence had nothing to do with the accident
but contributed to his injury, then the court was right in apportioning the
damages, but if there was no negligence on the part of the plaintiff, then he
should be awarded damages adequates to the injury sustained."
In support of the defendant's contention counsel says: "Defendant's
negligence was its failure properly to maintain the track; plaintiff's negligence
was his intoxication; the 'principal occurrence' was plaintiff's fall from his calesa.
It seems clear that plaintiff's intoxication contributed to the fall; if he had been
sober, it can hardly be doubted that he would have crossed the track safely, as he
had done a hundred times before."
While both parties appealed from the decision, the defendant on the
ground that it was not liable and the plaintiff on the ground that the damages
were insufficient according to the evidence, and while the plaintiff made a
motion for a new trial upon the statutory grounds and took proper exception to
the denial thereof, thus conferring upon this court jurisdiction to determine the
question of fact, nevertheless, not all of the testimony taken on the trial, so far
as can be gathered from the record, has been brought to this court. There seems
to have been two hearings, one on the 31st of August and the other on the 28th of
September. The evidence taken on the first hearing is here; that taken on the
second is not. Not all the evidence taken on the hearings being before the court,
we must refuse, under our rules, to consider even that evidence which is here;
and, in the decision of this case, we are, therefore, relegated to the facts stated
in the opinion of the court and the pleadings filed.
A careful reading of the decision of the trial court leads us to the
conclusion that there is nothing in the opinion which sustains the conclusion of
the court that the plaintiff was negligent with reference to the accident which is
the basis of this action. Mere intoxication establish a want of ordinary care. It is
but a circumstance to be considered with the other evidence tending to prove
negligence. It is the general rule that it is immaterial whether a man is drunk or
sober if no want of ordinary care or prudence can be imputed to him, and no
greater degree of care is required than by a sober one. If one's conduct is
characterized by a proper degree of care and prudence, it is immaterial whether
he is drunk or sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R.
Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, Mass., 402; Central R. R.
Co. vs. Phinazee, 93 Ga., 488; Maguirevs. Middlesex R. R. Co., 115 Mass., 239;
Meyer vs. Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake, 33
Ill. App., 114.)
If intoxication is not in itself negligence, what are the facts found by the
trial court and stated in its opinion upon which may be predicated the finding that
the plaintiff did not use ordinary care and prudence and that the intoxication
contributed to the injury complained of? After showing clearly and forcibly the
negligence of the defendant in leaving its tracks in the condition in which they
were on the night of the injury, the court has the following to say, and it is all
that can be found in its opinion, with reference to the negligence of the plaintiff:
"With respect to the condition in which Mr. Wright was on returning to his house
on the night in question, the testimony of Doctor Kneedler, who was the physician
who attended him an hour after the accident, demonstrates that he was
intoxicated. . . . .
If the defendant or its employees were negligent by reason of
having left the rails and a part of the ties uncovered in a street where
there is a large amount of travel, the plaintiff was no less negligent, he
not having abstained from his custom of taking more wine than he could
carry without disturbing his judgment and his self-control, he knowing
that he had to drive a horse and wagon and to cross railroad tracks which
 were to a certain extent dangerous by reason of the rails being elevated This is a finding of fact — the fact of negligence — and I know of no rule
above the level of the street. which requires the trial court to set forth not only the ultimate facts found by it,
If the plaintiff had been prudent on the night in question and had but also all the evidentiary facts on which such conclusions are based. The finding
not attempted to drive his conveyance while in a drunken condition, he is not in conflict with the other facts found by the trial judge, and though it is not
would certainly have avoided the damages which he received, although fully sustained thereby, we must assume, if we decline to examine the record,
the company, on its part, was negligent in maintaining its tracks in a bad that there were evidentiary facts disclosed at the trial which were sufficient to
condition for travel. sustain the finding if negligence. "The statement of facts must contain only those
facts which are essential to a clear understanding of the issues presented and the
Both parties, therefore, were negligent and both contributed to facts involved." (Act No. 190, sec. 133.)
the damages resulting to the plaintiff, although the plaintiff, in the
judgment of the court, contributed in greater proportion to the damages The facts required to be found are the ultimate facts forming the
that did the defendant. issues presented by the pleadings, and which constitute the fundation for
a judgment, and not those that are merely evidentiary facts, or to set
As is clear from reading the opinion, no facts are stated therein which forth and explain the means or processes by which he arrived at such
warrant the conclusion that the plaintiff was negligent. The conclusion that if he findings. Neither evidence, argument, nor comment has any legitimate
had been sober he would not have been injured is not warranted by the facts as place in findings of facts. (Conlan vs. Grace, 36 Minn., 276, 282.)
found. It is impossible to say that a sober man would not have fallen from the
vehicle under the conditions described. A horse crossing the railroad tracks with
not only the rails but a portion of the ties themselves aboveground, stumbling by
reason of the unsure footing and falling, the vehicle crashing against the rails with
such force as to break a wheel, this might be sufficient to throw a person from
the vehicle no matter what his condition; and to conclude that, under such
circumstances, a sober man would not have fallen while a drunken man did, is to
draw a conclusion which enters the realm of speculation and guesswork.
It having been found that the plaintiff was not negligent, it is unnecessary
to discuss the question presented by the appellant company with reference to the
applicability of the case of Rakes vs. A. G. & P. Co., above; and we do not find
facts in the opinion of the court below which justify a larger verdict than the one
found.
Arellano, C.J., Torres and Araullo, JJ., concur.

Separate Opinions

CARSON, J., dissenting:

I dissent. I think, in the first place, that before pronouncing judgment the
parties should have an opportunity, if they so desire, to correct the manifestly
accidental omission from the record of a part of the transcript of the record. It is
very clear that when the case was submitted, and the brief filed, both parties
were under the mistaken impression that all the evidence was in the record.
I think, furthermore, that if the case is to be decided on the findings of
fact by the trial judge, these findings sufficiently establish the negligence of the
plaintiff.1awphil.net
The trail judge expressly found that —
If the plaintiff had been prudent on the night in question and had
not attempted to drive his conveyance while in a drunken condition, he
would certainly have avoided the damages which he received, although
the company, on its part was negligent in maintaining its tracks in a bad
condition for travel.
 EN BANC
G.R. No. 6659 September 1, 1911
THE UNITED STATES, plaintiff-appellee,
vs.
BAGGAY, JR., defendant-appellant.
Roman Lacson, for appellant.
Acting Attorney-General Harvey, for appellee.
TORRES, J.:
This is an appeal by the defendant from the judgment rendered on April 28, 1910,
whereby he was declared exempt from criminal liability but was obliged to
indemnify the heirs if the murdered woman, Bil-liingan, in the sum of P1,000, to
pay the costs in the case and to be confined in an institution for the insane until
further order of the court.
About the 4th of October, 1909, several persons were assembled in the
defendant's house in the township of Penarrubia, Abra, Province of Ilocos Sur, for
the purpose of holding a song service called "buni" according to the Tinguian
custom, when he, the non-Christian Baggay, without provocation suddenly
attacked the woman Bil-liingan with a bolo, inflicting a serious wound on her head
from which she expired immediately; and with the same bolo he like wise
inflicted various wounds on the women named Calabayan, Agueng, Quisamay,
Calapini, and on his own mother, named Dioalan.
For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur,
dated February 15, charging the non-Christian Baggay, jr., with murder, because
of the violent death of the woman Bil-liingan. This cause was instituted separately
from the other, No. 1109, for lesiones. After trial and proof that the defendant
was suffering from mental aberration, the judge on April 28 rendered the
judgment cited above, whereupon the defendant's counsel appealed to this court.
By another writing of June 27, the same counsel asked for immediate suspension
of execution of the judgment, because it had been appealed and had not become
final. He also requested annulment of the sale at public auction of the property
attached by the sheriff or his deputy under order of the court, for making
indemnification with the defendant's property in accordance with said judgment,
as the attachment had been executed upon the property of the non-Christian
woman named Dioalan and of other persons, and not upon that of the defendant.
In opposition thereto, the provincial fiscal on the 30th of the same month
requested in writing that the appeal from this judgment filed by the counsel for
the defense be not admitted or carried forward, representing that it was out of
order as having been submitted beyond the limit; for the very day said judgment
was rendered, April 28, 1910, the accused's counsel, Sotero Serrano, was verbally
notified thereof, and it is therefore untrue that he was notified only on June 17 of
said year, on which date he read and examined the case and without the clerk's
knowledge signed the same, making it appear that he was notified on that date,
June 17, what he had known since April 28 of the judgment, of which the judge
had verbally informed him, although the latter did not then have him sign it.
In reply to this motion of the provincial fiscal, the defense requested that the
appeal filed be admitted and carried for ward, representing that, when the court
verbally announced his decision to defendant's counsel, the judgment had not yet
been entered, and therefore neither the defendant nor his counsel could be
notified thereof in legal form until said date, June 17.
Passing upon this motion on August 2, 1910, the court declared said appeal out of
order and dismissed it; and, furthermore, denied the petition for suspension of
judgment, as said judgment had become final.
Thereupon, counsel for the defendant resorted to this court with a petition
praying that a writ be issued directing said judge, Chanco, to admit the appeal
and forward it, at the same time annulling all action taken for execution of the
judgments rendered in the causes for murder and for lesiones. After consideration
thereof, the Attorney-General, on behalf of said judge and of the provincial
fiscal, requested that this remedy be declared out of order, as the issuance of
such writ against the judge of the Court of First Instance of Ilocos Sur, and much
more against the provincial fiscal, was not in accordance with law; but this court
by order of November 15 saw fit to declare said remedy of mandamus to be in
order and issued a written order directing the judge of the Court of First Instance
to immediately admit the appeal filed in these two causes and to forward all the
records to this higher court. At the same time he was instructed to refrain
absolutely from executing said judgments or causing them to be executed while
said appeals were pending, a prohibition that was extended to the provincial
sheriff, his agents and representatives, until further order from this court. Upon
notification of the foregoing and in compliance therewith, the judge by order of
November 22 admitted the appeal filed by counsel for the defense both in the
cause for murder and in that for lesiones.
The question raised on the appeal filed in this case by counsel for the insane
defendant, Baggay, jr., is solely whether he, notwithstanding that he was held
exempt from criminal liability, has nevertheless incurred civil liability, with
obligation to indemnify the heirs of the murdered woman and to pay the costs.
Article 17 of the Penal Code states:
Every person criminally liable for a crime or misdemeanor is also civilly
liable.
Article 18 of the same code says:
The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10
of article 8 does not include exemption from civil liability, which shall be
enforced, subject to the following:
(1) In cases 1, 2, and 3, the persons who are civilly liable for acts
committed by a lunatic or imbecile, or a person under 9 years of age, or
over this age and under 15, who has not acted with the exercise of
judgment, are those who have them under their authority, legal
guardianship or power, unless they prove that there was no blame or
negligence on their part.
Should there be no person having them under his authority, legal
guardian, or power, if such person be insolvent, the said lunatics,
imbeciles, or minors shall answer with their own property, excepting that
part which is exempted for their support in accordance with the civil
law.
True it is that civil liability accompanies criminal liability, because every person
liable criminally for a crime or misdemeanor is also liable for reparation of
damage and for indemnification of the harm done, but there may be civil liability
because of acts ordinarily punishable, although the law has declared their
perpetrators exempt from criminal liability. Such is the case of a lunatic or insane
person who, in spite of his irresponsibility on account of the deplorable condition
of his deranged mind, is still reasonably and justly liable with his property for the
consequences of his acts, even though they be performed unwittingly, for the
reason that his fellows ought not to suffer for the disastrous results of his harmful
acts more than is necessary, in spite of his unfortunate condition. Law and society
are under obligation to protect him during his illness and so when he is declared
to be liable with his property for reparation and indemnification, he is still
entitled to the benefit of what is necessary for his decent maintenance, but this
protection does not exclude liability for damage caused to those who may have
the misfortune to suffer the consequences of his acts.
According to the law, the persons in the first place liable. are those who have the
insane party under their care or guardianship, unless they prove that there was no
blame or negligence on their part; but if the demented person or imbecile lack a
guardian or some person charged with his care, if the latter be insolvent, then his
own property must meet the civil liability of indemnifying or repairing the damage
done, and for this reason judges and courts in rendering judgment in a criminal
cause prosecuted against an insane or demented person, even when they hold the
accused exempt from criminal liability, must fix the civil liability of the persons
charged with watching over and caring for him or the liability of the demented
person him self with his property for reparation of the damage and
indemnification for the harm done, unless the offended party or the heirs of the
person murdered expressly renounce such reparation or indemnification.
Therefore, the judgment appealed from being in accordance with law, affirmation
thereof is proper, and it is hereby affirmed, with costs against the appellant.
Mapa, Johnson, Carson and Moreland, JJ., concur.
 SECOND DIVISION
G.R. No. L-8110 June 30, 1956
MARINDUQUE IRON MINES AGENTS, INC., Petitioner,
vs.
THE WORKMEN’S COMPENSATION COMMISSION, THE HEIRS OF PEDRO MAMADOR
and GERONIMO MA. COLL, Respondents.
DECISION
BENGZON, J.:
The Marinduque Iron Mines Agents Inc. questions by certiorari the order of the
Workmen’s Compensation Commissioner confirming the referee’s award of
compensation to the heirs of Pedro Mamador for his accidental death.
Only the right to compensation is disputed; not the amount.
“It appears,” says the award, “that on August 23, 1951, at 6:00 a.m. in Bo.
Sumangga, Mogpog, Marinduque, the deceased Mamador together with other
laborers of the Respondent-corporation, (Marinduque Iron Mines Agents Inc.)
boarded a truck belonging to the latter, which was then driven by one Procopio
Macunat, also employed by the corporation, and on its way to their place of work
at the mine camp at Talantunan, while trying to overtake another truck on the
company road, it turned over and hit a coconut tree, resulting in the death of said
Mamador and injury to the others.”
Procopio Macunat was prosecuted, convicted and sentenced to indemnify the
heirs of the deceased. (Criminal Case No. 1491). He has paid nothing however, to
the latter.
In his first proposition Petitioner challenges the validity of the proceedings before
the Commission, asserting it had not been given the opportunity to cross-examine
the opposing witnesses. According to Respondents.
“The records show that pursuant to a request made by this Commission on March
28, 1953 to investigate the above-entitled case, the Public Defender of Boac,
Marinduque, notifiedRespondent Geronimo Ma. Coll and the general manager of
the Respondent company, Mr. Eric Lenze, to appear before him in an
investigation, first on May 12, 1953, when neither of them appeared, and the
second on May 29, 1953, when only Mr. Geronimo Ma. Coll. appeared. The sworn
testimony of Mr. Ma. Coll was then taken down in a question and answer method.
On August 18, 1953, thru Referee Ramon Villaflor, this Commission wrote
the Respondentcompany to comment on the enclosed copy of the sworn
declaration of Ma. Coll. TheRespondent company, thru its Vice President, denied
its liability under the Workmen’s Compensation Act, as amended. In an
investigation conducted on February 8, 1954 by the undersigned referee,
the Respondent company thru Mr. Lenze who was assisted by counsel, was
allowed to examine the records of the case including the sworn declaration of Ma.
Coll and was given all the opportunity to rebut the same by additional evidence.”
In our opinion, Petitioner’s grievance does not rest on any sound basis, because it
was given notice, and therefore had the chance, to examine (and cross-examine)
the witnesses against it. The statute even permits the Commissioner (or his
referee) to take testimony without notice (section 48 Act 3428 as amended)
provided of course such ex parte evidence is reduced to writing, and the adverse
party is afforded opportunity to examine and rebut the same which was done in
this instance.
Anyway we are not shown how its failure to cross-examine the witnesses
prejudiced thePetitioner’s position.
In its second proposition, Petitioner maintains that this claim is barred by section
6 of the Workmen’s Compensation Law, because (a) Macunat was prosecuted and
required to indemnify the heirs of the deceased and (b) an amicable settlement
was concluded between said heirs and Macunat.
Section 6 provides as follows:
“Sec. 6. Liability of third parties. — In case an employee suffers an injury for
which compensation is due under this Act by any other person besides his
employer, it shall be optional with such injured employee either to claim
compensation from his employer, under this Act, or sue such other person for
damages, in accordance with law; and in case compensation is claimed and
allowed in accordance with this Act, the employer who paid such compensation or
was found liable to pay the same, shall succeed the injured employee to the right
of recovering from such person what he paid: Provided, That in case the employer
recovers from such third person damages in excess of those paid or allowed under
this Act, such excess shall be delivered to the injured employee or any other
person entitled thereto, after deduction of the expenses of the employer and the
costs of the proceedings. The sum paid by the employer for compensation or the
amount of compensation to which the employee or his dependents are entitled,
shall not be admissible as evidence in any damage suit or action.”
It is the Petitioner’s contention that Criminal Case No. 1491 and its outcome
constituted an election by the employee (or his heirs) to sue the third person,
such election having the effect of releasing the employer. However, Criminal Case
No. 1491 was not a suit for damages against the third person, it being alleged,
without contradiction that the heirs did not intervene therein and have not so far
received the indemnity ordered by the court. At any rate, we have already
decided in Nava vs. Inchausti Co. 1 that the indemnity granted the heirs in a
criminal prosecution of the “other person” does not affect the liability of the
employer to pay compensation. 2
As to the alleged “amicable settlement,” it consists of an affidavit wherein, for
the sum of 150 pesos, Mamador’s widow promised “to forgive Macunat for the
wrong committed and not to bring him before the authorities for prosecution.”
Upon making such promise — Petitionerargues — she elected one of the remedies,
(against the third person) and is barred from the other remedy (against the
employer). The contention may not be sustained, inasmuch as all the widow
promised was to forego the offender’s criminal prosecution. Note further that a
question may be raised whether she could bind the other heirs of the deceased.
The most important aspect of this appeal, is the effect of the deceased’s having
violated the employer’s prohibition against laborers riding the haulage
trucks. Petitioner claims such violation was the laborer’s “notorious negligence”
which, under the law, precludes recovery. The Commission has not declared that
the prohibition was known to Mamador. Yet the employer does not point out in
the record evidence to that effect. Supposing Mamador knew the prohibition, said
the referee, “can we truthfully say that he boarded the fatal truck with full
apprehension of the existence of the danger, if any at all, that an ordinary
prudent man would try to avoid? I do not believe so, and even in the presence of
doubt, the same must be resolved in his favor. Unless of course, we can attribute
to him a desire to end his life. Nowhere in the records of this case can we find the
slightest insinuation of that desire.”
There is no doubt that mere riding on haulage truck or stealing a ride thereon is
not negligence, ordinarily. It couldn’t be, because transportation by truck is not
dangerous per se. It is argued that there was notorious negligence in this
particular instance because there was the employer’s prohibition. Does violation
of this order constitute negligence? Many courts hold that violation of a statute or
ordinance constitutes negligence per se. Others consider the circumstances.
However there is practical unanimity in the proposition that violation of a rule
promulgated by a Commission or board is not negligence per se; it may be
evidence of negligence. (C.J.S., Vol. 65, p. 427.)
This order of the employer (prohibition rather) couldn’t be of a greater obligation
than the rule of a Commission or board. And the referee correctly considered this
violation as possible evidence of negligence; but it declared that under the
circumstance, the laborer could not be declared to have acted with negligence.
Correctly, it is believed, since the prohibition had nothing to do with personal
safety of the riders.
Such finding is virtually a finding of fact which we may not overrule in this
certiorari proceeding.
Nevertheless, even granting there was negligence, it surely was not “notorious”
negligence, which we have interpreted to mean the same thing as “gross”
negligence 3 — implying “conscious indifference to consequences” “pursuing a
course of conduct which would naturally and probably result in injury” “utter
disregard of consequences.” (38 Am. Jur., 691) Getting or accepting a free ride on
the company’s haulage truck couldn’t be gross negligence, because as the referee
found, “no danger or risk was apparent.”
There being no other material point raised in the petition for review, the award
of compensation is hereby affirmed, with costs against Petitioner.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
Reyes, A., J., concurs in the result.

Separate Opinions

MONTEMAYOR, J.:
I concur in the result. I believe that the injury suffered herein was not in the
course of the employments, neither did it arise out of it, but this question does
not seem to have been raised below or in the appeal.

Endnotes:
1. 57 Phi., 751.
2. See Balajadia vs. Province of Iloilo, G. R. No. 41979 October 1934.
3. To Justice Malcolm “notorious” negligence is stronger in significance
than “gross” negligence. (56 Phil, 547.)
 SECOND DIVISION
G.R. No. 73998 November 14, 1988
PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS
MULTI-INDEMNITY CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.
SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then
Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled "Pedro T.
Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and
Third-Party Plaintiff-Appellee, versus Travellers Multi-Indemnity Corporation,
Third Party Defendant- Appellant, "which reversed and set aside the decision 3 of
the Regional Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and
also dismissed the complaint, third party complaint, and the counter claims of the
parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner)
motion for reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted by the appellate court
are as follows: 5
xxx xxx xxx
Pedro T. Layugan filed an action for damages against Godofredo
Isidro, alleging that on May 15, 1979 while at Baretbet,
Bagabag, Nueva Vizcaya, the Plaintiff and a companion were
repairing the tire of their cargo truck with Plate No. SU-730
which was parked along the right side of the National Highway;
that defendant's truck bearing Plate No. PW-583, driven
recklessly by Daniel Serrano bumped the plaintiff, that as a
result, plaintiff was injured and hospitalized at Dr. Paulino J.
Garcia Research and Medical Center and the Our Lady of
Lourdes Hospital; that he spent TEN THOUSAND PESOS
(Pl0,000.00) and will incur more expenses as he recuperates
from said injuries; that because of said injuries he would be
deprived of a lifetime income in the sum of SEVENTY THOUSAND
PESOS (P70,000.00); and that he agreed to pay his lawyer the
sum of TEN THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared the
defendant in default on October 12, 1979, and plaintiff's
evidence was received ex-parte on January 11, 1978 and
February 19, 1980. The decision on behalf of the plaintiff was
set aside to give a chance to the defendant to file his answer
and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle involved in the
accident driven by Daniel Serrano. Defendant countered that
the plaintiff was merely a bystander, not a truck helper being a
brother-in-law law of the driver of said truck; that the truck
allegedly being repaired was parked, occupying almost half of
the right lane towards Solano, Nueva Vizcaya, right after the
curve; that the proximate cause of the incident was the failure
of the driver of the parked truck in installing the early warning
device, hence the driver of the parked car should be liable for
damages sustained by the truck of the herein defendant in the
amount of more than P20,000.00; that plaintiff being a mere
bystander and hitchhiker must suffer all the damages he
incurred. By way of counterclaim defendant alleged that due to
plaintiffs baseless complaint he was constrained to engage the
services of counsel for P5,000.00 and P200.00 per court
appearance; that he suffered sleepless nights, humiliation,
wounded feelings which may be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the
defendant against his insurer, the Travellers Multi Indemnity
Corporation; that the third-party plaintiff, without admitting his
liability to the plaintiff, claimed that the third-party defendant
is liable to the former for contribution, indemnity and
subrogation by virtue of their contract under Insurance Policy
No. 11723 which covers the insurer's liability for damages arising
from death, bodily injuries and damage to property.
Third-party defendant answered that, even assuming that the
subject matter of the complaint is covered by a valid and
existing insurance policy, its liability shall in no case exceed the
limit defined under the terms and conditions stated therein;
that the complaint is premature as no claim has been submitted
to the third party defendant as prescribed under the Insurance
Code; that the accident in question was approximately caused
by the carelessness and gross negligence of the plaintiff-, that
by reason of the third-party complaint, third-party defendant
was constrained to engage the services of counsel for a fee of
P3,000.00.
Pedro Layugan declared that he is a married man with one (1)
child. He was employed as security guard in Mandaluyong, Metro
Manila, with a salary of SIX HUNDRED PESOS (600.00) a month.
When he is off-duty, he worked as a truck helper and while
working as such, he sustained injuries as a result of the bumping
of the cargo truck they were repairing at Baretbet, Bagabag,
Nueva Vizcaya by the driver of the defendant. He used to earn
TWO HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS
(P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00)
per trip. Due to said injuries, his left leg was amputated so he
had to use crutches to walk. Prior to the incident, he supported
his family sufficiently, but after getting injured, his family is
now being supported by his parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified
that his truck involved in this vehicular accident is insured with
the Travellers Multi Indemnity Corporation covering own damage
and third-party liability, under vehicle policy No. 11723 (Exh.
 "1") dated May 30, 1978; that after he filed the insurance claim
the insurance company paid him the sum of P18,000.00 for the
damages sustained by this truck but not the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave a
statement before the municipal police of Bagabag, Nueva
Vizcaya on May 16, 1979; that he knew the responsibilities of a
driver; that before leaving, he checked the truck. The truck
owner used to instruct him to be careful in driving. He bumped
the truck being repaired by Pedro Layugan, plaintiff, while the
same was at a stop position. From the evidence presented, it
has been established clearly that the injuries sustained by the
plaintiff was caused by defendant's driver, Daniel Serrano. The
police report confirmed the allegation of the plaintiff and
admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the
plaintiff to the ground. As a result thereof, plaintiff sustained
injuries on his left forearm and left foot. The left leg of the
plaintiff from below the knee was later on amputated (Exh. "C")
when gangrene had set in, thereby rendering him incapacitated
for work depriving him of his income. (pp. 118 to 120, Record on
Appeal.)
xxx xxx xxx
Upon such findings, amply supported by the evidence on record, the trial court
rendered its decision, the dispositive part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby
ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS
actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit. On the third-party complaint,
the third-party defendant is ordered to indemnify the
defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual
and compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated reversed the decision of the
trial court and dismissed the complaint, the third-party complaint, and the
counter- claims of both appellants. 7
Hence, this petition.
8
The petitioner alleges the following errors.
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S
COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED
CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA LOQUITUR"
WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the decision of the
respondent court finding the petitioner negligent under the doctrine of Res ipsa
loquitur (The thing speaks for itself).<äre||anº•1àw> Corollary thereto, is the
question as to who is negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the petition being
factual, the same is not reviewable by this Court in a petition for review by
certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court of Appeals
that its findings of fact are entitled to great respect and will not ordinarily be
disturbed by this Court. 10 For if we have to review every question of fact
elevated to us, we would hardly have any more time left for the weightier issues
compelling and deserving our preferential attention. 11 Be that as it may, this rule
is not inflexible. Surely there are established exceptions 12 —when the Court
should review and rectify the findings of fact of the lower court, such as:
1) when the conclusion is a finding grounded entirely on speculation, surmise, or
conjecture; 2) the inference made is manifestly mistaken; 3) there is grave abuse
of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court
of Appeals went beyond the issues of the case if the findings are contrary to the
admission of both the appellant and the appellee; 6) the findings of the Court of
Appeals are contrary to those of the trial court; 7) the said findings of fact are
conclusions without citation of specific evidence on which they are based; 8) the
facts set forth in the petition as well as in the petitioner's main and reply briefs
are not disputed by the respondents; and 9) when the findings of fact of the Court
of Appeals are premised on the absence of evidence and are contradicted on
record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation
from the general rule.
From its finding that the parked truck was loaded with ten (10) big round
logs 13 the Court of Appeals inferred that because of its weight the truck could not
have been driven to the shoulder of the road and concluded that the same was
parked on a portion of the road 14 at the time of the accident. Consequently, the
respondent court inferred that the mishap was due to the negligence of the driver
of the parked truck. 15 The inference or conclusion is manifestly erroneous. In a
large measure, it is grounded on speculation, surmise, or conjecture. How the
respondent court could have reversed the finding of the trial court that a warning
device was installed 16escapes us because it is evident from the record that really
such a device, in the form of a lighted kerosene lamp, was installed by the driver
of the parked truck three to four meters from the rear of his parked truck. 17 We
see this negative finding of the respondent appellate court as a misreading of the
facts and the evidence on record and directly contravening the positive finding of
the trial court that an early warning device was in proper place when the
accident happened and that the driver of the private respondent was the one
negligent. On the other hand, the respondent court, in refusing to give its
"imprimatur to the trial court's finding and conclusion that Daniel Serrano (private
respondent Isidro's driver) was negligent in driving the truck that bumped the
parked truck", did not cite specific evidence to support its conclusion. In cavalier
fashion, it simply and nebulously adverted to unspecified "scanty evidence on
record." 18
On the technical aspect of the case, the respondent corporation would want us to
dismiss this petition on the ground that it was filed out of time. It must be noted
that there was a motion for extension, 19 albeit filed erroneously with the
respondent court, dated March 19, 1986, requesting for 30 days from March 20,
1986, to file the necessary petition or pleading before the Supreme Court". Also,
on April 1, 1986, an appearance of a new lawyer for the petitioner before the
Supreme Court" with motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the Petition for Review on
Certiorari." Likewise a similar motion21 was filed with this Court also on April 1,
1986. On the other hand, the instant petition for review was filed on April 17,
1986 22 but it was only after three months, on August 1, 1986, in its
comment 23 that the respondent corporation raised the issue of tardiness. The
respondent corporation should not have waited in ambush before the comment
was required and before due course was given. In any event, to exact its "a pound
of flesh", so to speak, at this very late stage, would cause a grave miscarriage of
justice. Parenthetically, it must be noted that private respondent Isidro did not
raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence is the omission to do
something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do 24 or as Judge Cooley
defines it, "(T)he failure to observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury. 25
26
In Picart vs. Smith, decided more than seventy years ago but still a sound rule,
we held:
The test by which to determine the existence of negligence in a particular case
may be stated as follows: Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by the imaginary conduct of
the discreet paterfamilias of the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of the actor
in the situation before him. The Law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.
Respondent Isidro posits that any immobile object along the highway, like a
parked truck, poses serious danger to a moving vehicle which has the right to be
on the highway. He argues that since the parked cargo truck in this case was a
threat to life and limb and property, it was incumbent upon the driver as well as
the petitioner, who claims to be a helper of the truck driver, to exercise extreme
care so that the motorist negotiating the road would be properly forewarned of
the peril of a parked vehicle. Isidro submits that the burden of proving that care
and diligence were observed is shifted to the petitioner, for, as previously
claimed, his (Isidro's) Isuzu truck had a right to be on the road, while the
immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro
proffers that the petitioner must show to the satisfaction of a reasonable mind
that the driver and he (petitioner) himself, provided an early warning device, like
that required by law, or, by some other adequate means that would properly
forewarn vehicles of the impending danger that the parked vehicle posed
considering the time, place, and other peculiar circumstances of the occasion.
Absent such proof of care, as in the case at bar, Isidro concludes, would, under
the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part
of the driver of the parked cargo truck as well as his helper, the petitioner
herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the rear of the
parked truck, a lighted kerosene lamp was placed. 28 Moreover, there is the
admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)—Will you
narrate to me in brief how the accident happens (sic) if you can
still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979
while driving Isuzu truck at Baretbet, Bagabag,
Nueva Vizcaya and at KM 285, I met another
vehicle who (sic) did not dim his (sic)
lights which cause (sic) me to be blinded with
intense glare of the light that's why I did not
notice a parked truck who (sic) was repairing
a front flat tire. When I was a few meters
away, I saw the truck which was loaded with
round logs. I step (sic) on my foot brakes but
it did not function with my many attempts. I
have (sic) found out later that the fluid pipe
on the rear right was cut that's why the
breaks did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the shoulder of the
right side of the road would be of no moment taking into account the warning
device consisting of the lighted kerosene lamp placed three or four meters from
the back of the truck. 30 But despite this warning which we rule as sufficient, the
Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still
bumped the rear of the parked cargo truck. As a direct consequence of such
accident the petitioner sustained injuries on his left forearm and left foot. His
left leg was later amputated from below the knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of care of
Daniel Serrano has been established by clear and convincing evidence. It follows
that in stamping its imprimatur upon the invocation by respondent Isidro of the
doctrine of Res ipsa loquitur to escape liability for the negligence of his
employee, the respondent court committed reversible error.
32
The respondent court ruled:
xxx xxx xxx
 In addition to this, we agree with the following arguments of
appellant Godofredo Isidro which would show that the accident
was caused due to the negligence of the driver of the cargo
truck:
xxx xxx xxx
... In the case at bar the burden of proving
that care and diligence was (sic) observed is
shifted evidently to the plaintiff, for, as
adverted to, the motorists have the right to be
on the road, while the immobile truck has no
business, so to speak, to be there. It is thus
for the plaintiff to show to the satisfaction of
a reasonable mind that the driver and he
himself did employ early warning device such
as that required by law or by some other
adequate means or device that would
properly forewarn vehicles of the impending
danger that the parked vehicle posed
considering the time, place and other peculiar
circumstances of the occasion. Absent such
proof of care, as in the case at bar, will evoke
the presumption of negligence under the
doctrine of res ipsa loquitur, on the part of
the driver of the parked cargo truck as well as
plaintiff who was fixing the flat tire of said
truck. (pp. 14-17, Appellant's Brief). (Emphasis
supplied).
At this juncture, it may be enlightening and helpful in the proper resolution of the
issue of negligence to examine the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by
the defendant, that the accident arose from want of care. 33 Or as Black's Law
Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable
presumption or inference that defendant was negligent, which
arises upon proof that instrumentality causing injury was in
defendant's exclusive control, and that the accident was one
which ordinarily does not happen in absence of negligence. Res
ipsa loquitur is rule of evidence whereby negligence of alleged
wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances
attending it lead reasonably to belief that in absence of
negligence it would not have occurred and that thing which
caused injury is shown to have been under management and
control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex.
Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa
loquitur" the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence that
injury was caused by an agency or instrumentality under
exclusive control and management of defendant, and that the
occurrence was such that in the ordinary course of things would
not happen if reasonable care had been used.
In this jurisdiction we have applied this doctrine in quite a number of cases,
notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case
of F.F. Cruz and Co., Inc. vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established
without direct proof and furnishes a substitute for specific proof of
negligence. 37 The doctrine is not a rule of substantive law 38 but merely a mode
of proof or a mere procedural convenience. 39 The rule, when applicable to the
facts and circumstances of a particular case, is not intended to and does not
dispense with the requirement of proof of culpable negligence on the part of the
party charged. 40 It merely determines and regulates what shall be prima facie
evidence thereof and facilitates the burden of plaintiff of proving a breach of the
duty of due care. 41 The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily
available. 42 Hence, it has generally been held that the presumption of inference
arising from the doctrine cannot be availed of, or is overcome, where plaintiff has
knowledge and testifies or presents evidence as to the specific act of negligence
which is the cause of the injury complained of or where there is direct evidence
as to the precise cause of the accident and all the facts and circumstances
attendant on the occurrence clearly appear. 43 Finally, once the actual cause of
injury is established beyond controversy, whether by the plaintiff or by the
defendant, no presumptions will be involved and the doctrine becomes
inapplicable when the circumstances have been so completely eludicated that no
inference of defendant's liability can reasonably be made, whatever the source of
the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph
5, of the Civil Code. In the latter, when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the selection of the
servant or employee, or in supervision over him after selection, or both. Such
presumption is juris tantum and not juris et de jure and consequently, may be
rebutted. If follows necessarily that if the employer shows to the satisfaction of
the court that in the selection and in the supervision he has exercised the care
and diligence of a good father of a family, the presumption is overcome and he is
relieved from liability. 45 In disclaiming liability for the incident, the private
respondent stresses that the negligence of his employee has already been
adequately overcome by his driver's statement that he knew his responsibilities as
a driver and that the truck owner used to instruct him to be careful in driving. 46
We do not agree with the private respondent in his submission. In the first place,
it is clear that the driver did not know his responsibilities because he apparently
did not check his vehicle before he took it on the road. If he did he could have
discovered earlier that the brake fluid pipe on the right was cut, and could have
repaired it and thus the accident could have been avoided. Moveover, to our
mind, the fact that the private respondent used to intruct his driver to be careful
in his driving, that the driver was licensed, and the fact that he had no record of
any accident, as found by the respondent court, are not sufficient to destroy the 14 Id.
finding of negligence of the Regional Trial Court given the facts established at the 15 Id.
trial 47 The private respondent or his mechanic, who must be competent, should 16 Id.
have conducted a thorough inspection of his vehicle before allowing his driver to 17 Petition, 13.
drive it. In the light of the circumstances obtaining in the case, we hold that 18 Decision, CA, 50.
Isidro failed to prove that the diligence of a good father of a family in the 19 Annex K, 59.
supervision of his employees which would exculpate him from solidary liability 20 Annex M, 62.
with his driver to the petitioner. But even if we concede that the diligence of a 21 Motion for Extension, 2.
good father of a family was observed by Isidro in the supervision of his driver, 22 Petition, 4.
there is not an iota of evidence on record of the observance by Isidro of the same 23 Comment, 65.
quantum of diligence in the supervision of his mechanic, if any, who would be 24 Black Law Dictionary, Fifth Edition, 930.
directly in charge in maintaining the road worthiness of his (Isidro's) truck. But 25 Cooley on Torts, Fourth Edition, Vol. 3, 265.
that is not all. There is paucity of proof that Isidro exercised the diligence of a 26 37 Phil. 809, 813, No. L-12219, March 15, 1918; Hedy Gan vs.
good father of a family in the selection of his driver, Daniel Serrano, as well as in The Hon. Court of Appeals, G.R. L-44264, September 19, 1988.
the selection of his mechanic, if any, in order to insure the safe operation of his 27 Memorandum of Private Respondent, 2-3.
truck and thus prevent damage to others. Accordingly, the responsibility of Isidro 28 Rollo, 13.
as employer treated in Article 2180, paragraph 5, of the Civil Code has not 29 Id., 11, quoting the police investigation report by Patrolman
ceased. Josefino Velasco at about 10:00 a.m., on May 16, 1979, the
WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent morning after the accident, of the statement of Daniel Serrano,
court as well as its Resolution denying the petitioner's motion for reconsideration the driver of respondent Isidro.
are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, 30 Petition, Rollo, 13.
is hereby REINSTATED in toto. With costs against the private respondents. 31 Decision, RTC, Rollo, 13.
32 Decision, IAC, Rollo, 50-51, 52.
SO ORDERED. 33 Cooley on Torts, Vol. 3. 369.
Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur. 34 Fifth Edition, 1173.
35 L-12986, March 31, 1966, 16 SCRA 448.
Footnotes 36 L-52732, August 29, 1988.
1 Veloso, Marcelino R., ponente; Sison, Porfirio V., Bidin, 37 Corpus Juris Secundum, Vol. 65A, 525.
Abdulwahid A., and Britanico, Ramon B., JJ., concurring. 38 Id., 527.
2 Fourth Civil Cases Division. 39 Id., 529.
3 Rendered by Judge Leticia P. Morales. 40 Id 529-530.
4 Veloso, Mercelino R., J., ponente; Sison, Porfirio V. Bidin, 41 Id., 530.
Abdulwahid A., and Britanico, Ramon B., JJ., concurring. 42 Id., 543-544.
5 Decision of IAC, Rollo, 46-49. 43 Id., 544-545.
6 Decision of the Regional Trial Court, Rollo, 32. 44 Id., 548.
7 Ibid., p. 52. 45 Bahia vs. Litonpia and Leynes, No. L-9734, March 31, 1915,
8 Petition, Rollo, pp. 8-9. 30 Phils. 624.
9 Rollo, 108. 46 Memorandum of private respondent, 6.
10 The Executive Secretary, et al. vs. CA, G.R. No. L-37999, 47 Decision, IAC, Rollo, 52.
June 10, 1988, citing Chan vs. CA, G.R. No. L-27488, June 30,
1970, 33 SCRA 737; Lianga Bay Logging Co., Inc. vs. CA, G.R. No.
L-37783, January 28,1988.
11 Anderson Co., et al. vs. IAC, G.R. No. L-65928, June 21,
1988.
12 Director of Lands vs. CA, G.R. No. L-46068, September 30,
1982, 117 SCRA 346, citing Macadangdang vs. CA No. L-49542,
September 12, 1980, 100 SCRA 73; Manero vs. CA G.R. No. L-
49824, February 20, 1981; 102 SCRA 817; Pio L. Padilla vs, C.A.,
January 29, 1988; G.R. 75577, January 29, 1988; Municipality of
Meycauayan, Bulacan vs. IAC, G.R. L-72126, January 29, 1988.
13 Decision, Court of Appeals, 50.
 FIRST DIVISION
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural
guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA
and DRA. PERFECTA GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the
health and welfare of their patients. If a doctor fails to live up to this precept, he
is made accountable for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference between life and
death. In this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate
comatose condition of a patient scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29
May 1995, which overturned the decision 4 of the Regional Trial Court, dated 30
January 1992, finding private respondents liable for damages arising from
negligence in the performance of their professional duties towards petitioner
Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17,
1985, a 47-year old (Exh. "A") robust woman (TSN, October 19,
1989, p. 10). Except for occasional complaints of discomfort due
to pains allegedly caused by the presence of a stone in her gall
bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as
any other woman. Married to Rogelio E. Ramos, an executive of
Philippine Long Distance Telephone Company, she has three
children whose names are Rommel Ramos, Roy Roderick Ramos
and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal
ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A"
and "C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN,
January 13, 1988, p. 7), she and her husband Rogelio met for
the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on
June 10, 1985. They agreed that their date at the operating
table at the DLSMC (another defendant), would be on June 17,
1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a
"cholecystectomy" operation after examining the documents
(findings from the Capitol Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good anesthesiologist. Dr.
Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN,
February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4,
10, 17).
A day before the scheduled date of operation, she was admitted
at one of the rooms of the DLSMC, located along E. Rodriguez
Avenue, Quezon City (TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there
for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating
room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio,
was also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three nurses and
Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral
support to the patient, to them. Herminda was allowed to stay
inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to
look for Dr. Hosaka who was not yet in (TSN, January 13, 1988,
pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked, "Mindy,
wala pa ba ang Doctor"? The former replied, "Huwag kang mag-
alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and
informed the patient's husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating
room, the patient told her, "Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and]
waiting for the arrival of the doctor" even as he did his best to
find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also
thought of the feeling of his wife, who was inside the operating
room waiting for the doctor to arrive (ibid.). At almost 12:00
noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was
also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M., he came to know
that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr.
Hosaka, dumating na raw." Upon hearing those words, he went
down to the lobby and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that "Dr.
Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing
the patient for the operation" (TSN, January 13, 1988, p. 16). As
she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention on what
Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon arrived at the
operating room, she saw this anesthesiologist trying to intubate
the patient. The patient's nailbed became bluish and the patient
was placed in a trendelenburg position — a position where the
head of the patient is placed in a position lower than her feet
which is an indication that there is a decrease of blood supply to
the patient's brain (Id., pp. 19-20). Immediately thereafter, she
went out of the operating room, and she told Rogelio E. Ramos
"that something wrong was . . . happening" (Ibid.). Dr. Calderon
was then able to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a
respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN, October
19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to
Dr. Hosaka. The latter informed the former that something went
wrong during the intubation. Reacting to what was told to him,
Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a
good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to
explain what happened to the patient. The doctors explained
that the patient had bronchospasm (TSN, November 15, 1990,
pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months
thereafter or on November 15, 1985, the patient was released
from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon
of June 17, 1985, she has been in a comatose condition. She
cannot do anything. She cannot move any part of her body. She
cannot see or hear. She is living on mechanical means. She
suffered brain damage as a result of the absence of oxygen in
her brain for four to five minutes (TSN, November 9, 1989, pp.
21-22). After being discharged from the hospital, she has been
staying in their residence, still needing constant medical
attention, with her husband Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989,
pp. 32-34). She was also diagnosed to be suffering from "diffuse
cerebral parenchymal damage" (Exh. "G"; see also TSN,
December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the
Regional Trial Court of Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of
Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda Cruz and
Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of
oxygen in her brain caused by the faulty management of her airway by private
respondents during the anesthesia phase. On the other hand, private respondents
primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist,
to the effect that the cause of brain damage was Erlinda's allergic reaction to the
anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts
set forth earlier, and applying the aforecited provisions of law
and jurisprudence to the case at bar, this Court finds and so
holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact
that the patient was inside the operating room for almost three

(3) hours. For after she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence
further shows that the hapless patient suffered brain damage
because of the absence of oxygen in her (patient's) brain for
approximately four to five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is
liable for the acts of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the patient as part of his
obligation to provide the patient a good anesthesiologist', and
for arriving for the scheduled operation almost three (3) hours
late.
On the part of DLSMC (the hospital), this Court finds that it is
liable for the acts of negligence of the doctors in their "practice
of medicine" in the operating room. Moreover, the hospital is
liable for failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably failed to
arrive on time.
In having held thus, this Court rejects the defense raised by
defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the
patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after
her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if
defendants acted with due care and prudence as the patient's
case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered
in favor of the plaintiffs and against the defendants.
Accordingly, the latter are ordered to pay, jointly and severally,
the former the following sums of money, to wit:
1) the sum of P8,000.00 as actual monthly
expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the
total sum of P632,000.00 as of April 15, 1992,
subject to its being updated;
2) the sum of P100,000.00 as reasonable
attorney's fees;
3) the sum of P800,000.00 by way of moral
damages and the further sum of P200,000,00
by way of exemplary damages; and,
4) the costs of the suit.
7
SO ORDERED.
Private respondents seasonably interposed an appeal to the Court of Appeals. The
appellate court rendered a Decision, dated 29 May 1995, reversing the findings of
the trial court. The decretal portion of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is
hereby REVERSED, and the complaint below against the
appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only
insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy.
8
SO ORDERED.
The decision of the Court of Appeals was received on 9 June 1995 by petitioner
Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio Ramos." No copy of
the decision, however, was sent nor received by the Coronel Law Office, then
counsel on record of petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before
the expiration of the reglementary period for filing a motion for reconsideration.
On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court
denied the motion for extension of time in its Resolution dated 25 July
1995. 9Meanwhile, petitioners engaged the services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not yet commenced to run as
the Division Clerk of Court of the Court of Appeals had not yet served a copy
thereof to the counsel on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for reconsideration of petitioners in
its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day
(15) period for filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a
Motion for Reconsideration cannot be extended; precisely, the
Motion for Extension (Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of Appeals
already on July 4, necessarily, the 15-day period already passed.
For that alone, the latter should be denied.
Even assuming admissibility of the Motion for the
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
10
SO ORDERED.
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The
next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for
extension of time to file the present petition for certiorari under Rule 45. The
Court granted the motion for extension of time and gave petitioners additional
thirty (30) days after the expiration of the fifteen-day (15) period counted from
the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996,
well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I rule that the fact of the occurrence of an injury, taken with the surrounding
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID
NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of the procedural
issue on the timeliness of the petition in relation to the motion for
reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given
due course since the motion for reconsideration of the petitioners on the decision
of the Court of Appeals was validly dismissed by the appellate court for having
been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing
the motion for reconsideration is attributable to the fact that the decision of the
Court of Appeals was not sent to then counsel on record of petitioners, the
Coronel Law Office. In fact, a copy of the decision of the appellate court was
instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein
he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court
apparently mistook him for the counsel on record. Thus, no copy of the decision
of the counsel on record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration, referred the same to a
legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be
sent to the party's lawyer at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals already issued a second
Resolution, dated 29 March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration of petitioner, we
believed that the receipt of the former should be considered in determining the
timeliness of the filing of the present petition. Based on this, the petition before
us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits
of the case. For a more logical presentation of the discussion we shall first
consider the issue on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be tackled in relation
to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the
circumstances, may permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima faciecase, and present a question of fact for
defendant to meet with an explanation. 13 Where the thing which caused the
injury complained of is shown to be under the management of the defendant or
his servants and the accident is such as in ordinary course of things does not
happen if those who have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the defendant, that the
accident arose from or was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a
matter of common knowledge and experience, the very nature of certain types of
occurrences may justify an inference of negligence on the part of the person who
controls the instrumentality causing the injury in the absence of some explanation
by the defendant who is charged with negligence. 15 It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or
common knowledge, negligence may be deduced from the mere occurrence of the
accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive
law and, as such, does not create or constitute an independent or separate
ground of liability. 17 Instead, it is considered as merely evidentiary or in the
nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere
procedural of convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. 19 In other
words, mere invocation and application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the process of such
proof, permitting the plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the doctrine, creating an
inference or presumption of negligence, and to thereby place on the defendant
the burden of going forward with the proof. 20 Still, before resort to the doctrine
may be allowed, the following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in
the absence of someone's negligence;
2. It is caused by an instrumentality within the exclusive control
of the defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.21
In the above requisites, the fundamental element is the "control of
instrumentality" which caused the damage. 22Such element of control must be
shown to be within the dominion of the defendant. In order to have the benefit of
the rule, a plaintiff, in addition to proving injury or damage, must show a
situation where it is applicable, and must establish that the essential elements of
the doctrine were present in a particular incident. 23
Medical malpractice 24 cases do not escape the application of this doctrine.
Thus, res ipsa loquitur has been applied when the circumstances attendant upon
the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm. 25 The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function
to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference. 26
Although generally, expert medical testimony is relied upon in malpractice suits
to prove that a physician has done a negligent act or that he has deviated from
the standard medical procedure, when the doctrine of res ipsa loquitur is availed
by the plaintiff, the need for expert medical testimony is dispensed with because
the injury itself provides the proof of negligence. 27 The reason is that the general
rule on the necessity of expert testimony applies only to such matters clearly
within the domain of medical science, and not to matters that are within the
common knowledge of mankind which may be testified to by anyone familiar with
the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated upon
with a reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external appearances, and
manifest conditions which are observable by any one may be given by non-expert
witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court
is permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care. 30Where common
knowledge and experience teach that a resulting injury would not have occurred
to the patient if due care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but
how and why it occurred. 31 When the doctrine is appropriate, all that the patient
must do is prove a nexus between the particular act or omission complained of
and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, 32 injuries sustained on a healthy part of the body which was not
under, or in the area, of treatment, 33 removal of the wrong part of the body
when another part was intended, 34knocking out a tooth while a patient's jaw was
under anesthetic for the removal of his tonsils, 35 and loss of an eye while the
patient plaintiff was under the influence of anesthetic, during or following an
operation for appendicitis, 36among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or
ordinary doctrine to be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results,
and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. 38 The physician or
surgeon is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the desired
result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only
showing is that the desired result of an operation or treatment was not
accomplished. 40The real question, therefore, is whether or not in the process of
the operation any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of the
untoward consequence. 41 If there was such extraneous interventions, the
doctrine of res ipsa loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will
hereinafter be explained, the damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the application of res ipsa
loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the
Kansas Supreme Court in applying the res ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid operation
and delivered his person over to the care, custody and control
of his physician who had complete and exclusive control over
him, but the operation was never performed. At the time of
submission he was neurologically sound and physically fit in
mind and body, but he suffered irreparable damage and injury
rendering him decerebrate and totally incapacitated. The injury
was one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and employment
of an endoctracheal tube. Ordinarily a person being put under
anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence.
Upon these facts and under these circumstances a layman would
be able to say, as a matter of common knowledge and
observation, that the consequences of professional treatment
were not as such as would ordinarily have followed if due care
had been exercised.
Here the plaintiff could not have been guilty of contributory
negligence because he was under the influence of anesthetics
and unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than
 to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in
Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply with equal force
here. In the present case, Erlinda submitted herself for cholecystectomy and
expected a routine general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody and control of
private respondents who exercised complete and exclusive control over her. At
the time of submission, Erlinda was neurologically sound and, except for a few
minor discomforts, was likewise physically fit in mind and body. However, during
the administration of anesthesia and prior to the performance of cholecystectomy
she suffered irreparable damage to her brain. Thus, without undergoing surgery,
she went out of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury
which does not normally occur in the process of a gall bladder operation. In fact,
this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a
person being put under anesthesia is not rendered decerebrate as a consequence
of administering such anesthesia if the proper procedure was followed.
Furthermore, the instruments used in the administration of anesthesia, including
the endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is
injured or destroyed while the patient is unconscious and under the immediate
and exclusive control of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these facts and under
these circumstances the Court would be able to say, as a matter of common
knowledge and observation, if negligence attended the management and care of
the patient. Moreover, the liability of the physicians and the hospital in this case
is not predicated upon an alleged failure to secure the desired results of an
operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we
are not saying that the doctrine is applicable in any and all cases where injury
occurs to a patient while under anesthesia, or to any and all anesthesia cases.
Each case must be viewed in its own light and scrutinized in order to be within
the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the
presumption of negligence allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of the operation and,
if in the affirmative, whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the witnesses for the
private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on
the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight
to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was
candid enough to admit that she experienced some difficulty in the endotracheal
intubation 45 of the patient and thus, cannot be said to be covering her negligence
with falsehood. The appellate court likewise opined that private respondents
were able to show that the brain damage sustained by Erlinda was not caused by
the alleged faulty intubation but was due to the allergic reaction of the patient to
the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on
by their expert witness, Dr. Jamora. On the other hand, the appellate court
rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that
the cause of the brain injury was traceable to the wrongful insertion of the tube
since the latter, being a nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them of any liability towards
Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold that private
respondents were unable to disprove the presumption of negligence on their part
in the care of Erlinda and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not only the logical
scientific evidence of the pathogenesis of the injury but also in providing the
Court the legal nexus upon which liability is based. As will be shown hereinafter,
private respondents' own testimonies which are reflected in the transcript of
stenographic notes are replete of signposts indicative of their negligence in the
care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during
the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed
to properly intubate the patient. This fact was attested to by Prof. Herminda
Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-
in-law, who was in the operating room right beside the patient when the tragic
event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on
the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a
 sudden heard some remarks coming from Dra. Perfecta
Gutierrez herself. She was saying "Ang hirap ma-intubate nito,
mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki ang tiyan," what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the
left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the
person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a
while the patient's nailbed became bluish and I saw the patient
was placed in trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in that position, there is a
decrease of blood supply to the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court
by declaring that:
A perusal of the standard nursing curriculum in our country will
show that intubation is not taught as part of nursing procedures
and techniques. Indeed, we take judicial notice of the fact that
nurses do not, and cannot, intubate. Even on the assumption
that she is fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz, admittedly, did
not peep into the throat of the patient. (TSN, July 25, 1991, p.
13). More importantly, there is no evidence that she ever
auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its proper
place, and to determine the condition of the heart, lungs, and
other organs. Thus, witness Cruz's categorical statements that
appellant Dra. Gutierrez failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon who succeeded in doing so
clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a
nurse, and considered a layman in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although
witness Cruz is not an anesthesiologist, she can very well testify upon matters on
which she is capable of observing such as, the statements and acts of the
physician and surgeon, external appearances, and manifest conditions which are
observable by any one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence
in non-technical matters or those of which an ordinary person may be expected to
have knowledge, or where the lack of skill or want of care is so obvious as to
render expert testimony unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that even an ordinary person can
tell if it was administered properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of observation, we believe, does not
require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse
whose long experience and scholarship led to her appointment as Dean of the
Capitol Medical Center School at Nursing, was fully capable of determining
whether or not the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of
Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of
Nursing. 50Reviewing witness Cruz' statements, we find that the same were
delivered in a straightforward manner, with the kind of detail, clarity,
consistency and spontaneity which would have been difficult to fabricate. With
her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez
who admitted that she experienced difficulty in inserting the tube into Erlinda's
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at
your first attempt (sic), you did not immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
 Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring
to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right
away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard
defense that she encountered hardship in the insertion of the tube in the trachea
of Erlinda because it was positioned more anteriorly (slightly deviated from the
normal anatomy of a person) 52 making it harder to locate and, since Erlinda is
obese and has a short neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed observed, private
respondents adduced no evidence demonstrating that they proceeded to make a
thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even
if this would mean postponing the procedure. From their testimonies, it appears
that the observation was made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic accidents.
Pre-operative evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and visits with the patient,
traditionally, the day before elective surgery. 53 It includes taking the patient's
medical history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination performed by the
anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the
patient's airway normally involves investigating the following: cervical spine
mobility, temporomandibular mobility, prominent central incisors, diseased or
artificial teeth, ability to visualize uvula and the thyromental distance. 56 Thus,
physical characteristics of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need arises, as when initial
assessment indicates possible problems (such as the alleged short neck and
protruding teeth of Erlinda) a thorough examination of the patient's airway would
go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for
the first time on the day of the operation itself, on 17 June 1985. Before this
date, no prior consultations with, or pre-operative evaluation of Erlinda was done
by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of
the physiological make-up and needs of Erlinda. She was likewise not properly
informed of the possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the
first time only an hour before the scheduled operative procedure was, therefore,
an act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of
the physician's centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by
playing around with the trial court's ignorance of clinical procedure, hoping that
she could get away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency surgery just so her
failure to perform the required pre-operative evaluation would escape unnoticed.
In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to
see the patient a day before so you can introduce yourself to
establish good doctor-patient relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the
operative procedure of the anesthesiologist and in my case, with
elective cases and normal cardio-pulmonary clearance like that,
I usually don't do it except on emergency and on cases that have
an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly
enough time available for the fastidious demands of pre-operative procedure so
that an anesthesiologist is able to see the patient only a few minutes before
surgery, if at all. Elective procedures, on the other hand, are operative
procedures that can wait for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to be at the patient's beside to
do a proper interview and clinical evaluation. There is ample time to explain the
method of anesthesia, the drugs to be used, and their possible hazards for
purposes of informed consent. Usually, the pre-operative assessment is conducted
at least one day before the intended surgery, when the patient is relaxed and
cooperative.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez.
Thus, she had all the time to make a thorough evaluation of Erlinda's case prior to
the operation and prepare her for anesthesia. However, she never saw the patient
at the bedside. She herself admitted that she had seen petitioner only in the
operating room, and only on the actual date of the cholecystectomy. She
negligently failed to take advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative
evaluation of the patient which, in turn, resulted to a wrongful intubation, we
now determine if the faulty intubation is truly the proximate cause of Erlinda's
comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia
which led to Erlinda's coma was due to bronchospasm 59 mediated by her allergic
response to the drug, Thiopental Sodium, introduced into her system. Towards
this end, they presented Dr. Jamora, a Fellow of the Philippine College of
Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine,
who advanced private respondents' theory that the oxygen deprivation which led
to anoxic encephalopathy, 60 was due to an unpredictable drug reaction to the
short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of properly enlightening the court
about anesthesia practice and procedure and their complications. Dr. Jamora is
likewise not an allergologist and could not therefore properly advance expert
opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and,
as such, could not have been capable, as an expert would, of explaining to the
court the pharmacologic and toxic effects of the supposed culprit, Thiopental
Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an
expert witness in the anesthetic practice of Pentothal administration is further
supported by his own admission that he formulated his opinions on the drug not
from the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any
occasion to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they
have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only
on what you have read from books and not by your own personal
application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of your
own personal experience you feel that you can testify on
pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls
within the fields of anesthesia, internal medicine-allergy, and clinical
pharmacology. The resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated pulmonary diseases
are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he could
not testify about the drug with medical authority, it is clear that the appellate
court erred in giving weight to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
62
The provision in the rules of evidence regarding expert witnesses states:
Sec. 49. Opinion of expert witness. — The opinion of a witness
on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must have acquired special
knowledge of the subject matter about which he or she is to testify, either by the
study of recognized authorities on the subject or by practical
experience.63 Clearly, Dr. Jamora does not qualify as an expert witness based on
the above standard since he lacks the necessary knowledge, skill, and training in
the field of anesthesiology. Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents' intentionally avoided providing
testimony by competent and independent experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may have
produced Erlinda's coma by triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin reactions, or wheezing — some
of the more common accompanying signs of an allergic reaction — appears on
record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced,
allergic-mediated bronchospasm happens only very rarely. If courts were to
accept private respondents' hypothesis without supporting medical proof, and
against the weight of available evidence, then every anesthetic accident would be
an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by
private respondents was a mere afterthought. Such an explanation was advanced
in order to advanced in order to absolve them of any and all responsibility for the
patient's condition.
In view of the evidence at hand, we are inclined to believe petitioners' stand that
it was the faulty intubation which was the proximate cause of Erlinda's comatose
condition.
Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred. 64 An injury or damage is
proximately caused by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of the act or
omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty
intubation is undeniably the proximate cause which triggered the chain of events
leading to Erlinda's brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first
intubation was a failure. This fact was likewise observed by witness Cruz when
she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness Cruz noticed
abdominal distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory tree. In other
words, instead of the intended endotracheal intubation what actually took place
was an esophageal intubation. During intubation, such distention indicates that air
has entered the gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause some delay
in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong
place. That abdominal distention had been observed during the first intubation
suggests that the length of time utilized in inserting the endotracheal tube (up to
the time the tube was withdrawn for the second attempt) was fairly significant.
Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of oxygen became
apparent only after he noticed that the nailbeds of Erlinda were already
blue. 67 However, private respondents contend that a second intubation was
executed on Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims, which
supports the contention that the second intubation was successful. Assuming that
the endotracheal tube finally found its way into the proper orifice of the trachea,
the same gave no guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as
private respondents insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the second attempt, it was
obviously too late. As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her brain for about
four to five minutes. 68
The above conclusion is not without basis. Scientific studies point out that
intubation problems are responsible for one-third (1/3) of deaths and serious
injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or
the vast majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patient's airway prior to the operation. 70 As stated
beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation,
respondent physician could have been much more prepared to meet the
contingency brought about by the perceived anatomic variations in the patient's
neck and oral area, defects which would have been easily overcome by a prior
knowledge of those variations together with a change in technique. 71 In other
words, an experienced anesthesiologist, adequately alerted by a thorough pre-
operative evaluation, would have had little difficulty going around the short neck
and protruding teeth. 72 Having failed to observe common medical standards in
pre-operative management and intubation, respondent Dra. Gutierrez' negligence
resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head
of the surgical team. As the so-called "captain of the ship," 73 it is the surgeon's
responsibility to see to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the operative team) in not
determining if his anesthesiologist observed proper anesthesia protocols. In fact,
no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does
not escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of this, he had little or no
time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus,
he shares equal responsibility for the events which resulted in Erlinda's condition.
We now discuss the responsibility of the hospital in this particular incident. The
unique practice (among private hospitals) of filling up specialist staff with
attending and visiting "consultants," 74 who are allegedly not hospital employees,
presents problems in apportioning responsibility for negligence in medical
malpractice cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of
consultants and in the conduct of their work within the hospital premises. Doctors
who apply for "consultant" slots, visiting or attending, are required to submit
proof of completion of residency, their educational qualifications; generally,
evidence of accreditation by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a review committee
set up by the hospital who either accept or reject the application. 75 This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is
normally required to attend clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the physician's performance as a specialist
is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A
consultant remiss in his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting "consultant" staff. While "consultants" are not, technically
employees, a point which respondent hospital asserts in denying all responsibility
for the patient's condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose of allocating responsibility
in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being the case,
the question now arises as to whether or not respondent hospital is solidarily
liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the
former's responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned prove that they have
observed the diligence of a good father of the family to prevent damage. 78 In
other words, while the burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the diligence of a good
father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its
responsibility over respondent physicians, failed to adduce evidence showing that
it exercised the diligence of a good father of a family in the hiring and supervision
of the latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In neglecting to offer such
proof, or proof of a similar nature, respondent hospital thereby failed to
discharge its burden under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily responsible with its physicians
for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and
relying on the testimonies of the witnesses for the private respondents. Indeed, as
shown by the above discussions, private respondents were unable to rebut the
presumption of negligence. Upon these disquisitions we hold that private
respondents are solidarily liable for damages under Article 2176 79 of the Civil
Code.
We now come to the amount of damages due petitioners. The trial court awarded
a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to
the plaintiff, "subject to its being updated" covering the period from 15 November
1985 up to 15 April 1992, based on monthly expenses for the care of the patient
estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the
time of its decision would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care for the patient.
What it reflected were the actual expenses incurred and proved by the petitioners
after they were forced to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred
to a hospice specializing in the care of the chronically ill for the purpose of
providing a proper milieu adequate to meet minimum standards of care. In the
instant case for instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube.
Food preparation should be normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin supplements. Furthermore, she has
to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and
by a pulmonary therapist to prevent the accumulation of secretions which can
lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits
arising from negligence should at least reflect the correct minimum cost of proper
care, not the cost of the care the family is usually compelled to undertake at
home to avoid bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff
are those suffered by him as he has duly proved. The Civil Code provides:
Art. 2199. — Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume that at the time
of litigation, the injury suffered as a consequence of an act of negligence has
been completed and that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case, where the resulting
injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty. 80 In other words,
temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable — and certainly not in the best interests of the
administration of justice — for the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
damages previously awarded — temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care
for a comatose patient who has remained in that condition for over a decade.
Having premised our award for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which
generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate damages would therefore
be reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation
where the injury suffered by the plaintiff would have led to expenses which were
difficult to estimate because while they would have been a direct result of the
injury (amputation), and were certain to be incurred by the plaintiff, they were
likely to arise only in the future. We awarded P1,000,000.00 in moral damages in
that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a
traumatic amputation of her left lower extremity at the distal
left thigh just above the knee. Because of this, Valenzuela will
forever be deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which
 was paid for by Li), she will be required to undergo adjustments
in her prosthetic devise due to the shrinkage of the stump from
the process of healing.
These adjustments entail costs, prosthetic replacements and
months of physical and occupational rehabilitation and therapy.
During the lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of her lower limb
effected by the biological changes of middle-age, menopause
and aging. Assuming she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to the changes in
bone resulting from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal women. In other
words, the damage done to her would not only be permanent
and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body would
normally undergo through the years. The replacements,
changes, and adjustments will require corresponding adjustive
physical and occupational therapy. All of these adjustments, it
has been documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only
allow a reasonable amount of functional restoration of the
motor functions of the lower limb. The sensory functions are
forever lost. The resultant anxiety, sleeplessness, psychological
injury, mental and physical pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private respondents'
negligence is certainly much more serious than the amputation in the Valenzuela
case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She
has been in a comatose state for over fourteen years now. The burden of care has
so far been heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate damages
herein awarded would be inadequate if petitioner's condition remains unchanged
for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would
not even scratch the surface of the resulting moral damage because it would be
highly speculative to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or those actually affected
by the victim's condition. 84The husband and the children, all petitioners in this
case, will have to live with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives
around the nursing care of petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the victim. The family's moral
injury and suffering in this case is clearly a real one. For the foregoing reasons, an
award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are
hereby awarded. Considering the length and nature of the instant suit we are of
the opinion that attorney's fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because
physicians are not insurers of life and, they rarely set out to intentionally cause
injury or death to their patients. However, intent is immaterial in negligence
cases because where negligence exists and is proven, the same automatically
gives the injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised
for the purpose of preventing complications. A physician's experience with his
patients would sometimes tempt him to deviate from established community
practices, and he may end a distinguished career using unorthodox methods
without incident. However, when failure to follow established procedure results
in the evil precisely sought to be averted by observance of the procedure and a
nexus is made between the deviation and the injury or damage, the physician
would necessarily be called to account for it. In the case at bar, the failure to
observe pre-operative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are
hereby modified so as to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as actual damages computed
as of the date of promulgation of this decision plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5)
the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1 In the United States alone, a great number of people die every year as
a result of medical mishaps. The 13 December 1999 issue of TIME
MAGAZINE featured an article on medical negligence entitled "Doctors'
Deadly Mistakes" which is quoted in part: "It is hardly news that medical
professionals make mistakes — even dumb, deadly mistakes. What is
shocking is how often it happens. Depending on which statistics you
believe, the number of American killed by medical screw-ups is
somewhere between 44,000 and 98,000 every year — the eighth leading
cause of death even by the more conservative figure, ahead of car
crashes, breast cancer and AIDS. More astonishing than the huge numbers
themselves, though, is the fact that public health officials had known
about the problem for years and hadn't made a concerted effort to do
something about it."
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
7 Records, pp. 276-278.
8 CA Rollo, p. 166.
9 Id. at 145.
10 Id. at 195.
11 Rollo, p. 19.
12 Id. at 91-98.
13 57B Am Jur 2d, 493 (1989).
14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
15 57B Am Jur 2d, supra note 13 at 499.
16 Ibid.
17 Id. at 502.
18 Ibid.
19 Id.
20 Id. at 503.
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas
System, 182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and
Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249
P.2d 647.
22 St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160,
166 (1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has caused
bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 788 [1997]).
25 Voss vs. Bridwell, supra note 21.
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon,
127 Kan. 573, 274 P.237.
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95
Kan. 802, 149 P. 422, 423.
30 SOLIS, supra note 27, at 239.
31 Voss vs. Bridwell, supra note 21 at 970-971.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.
38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So.2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
44 Id. at 971.
45 It is the method of intubating a patient through the oral cavity. Under
this procedure, after the patient has been preoxygenated and paralyzed
and is no longer breathing on his own, the anesthetist inserts an
instrument called a laryngoscope into the patient's oral pharynx. The
patient's neck is hyperextended, that is, bent back as far as possible so
that the anesthetist can see or "visualize" the patient's epiglottis and
vocal cords. The anesthetist will then thread the endotracheal tube
between the patient's vocal cords into the trachea, and then hook the
tube to the breathing bag and anesthetic machine.
46 TSN, January 13, 1988, pp. 16-20.
47 CA Rollo, pp. 134-135.
48 Stockham vs. Hall, supra note 29.
49 61 Am Jur 2d, 513 (1989).
50 TSN, January 13, 1988, p. 3.
51 TSN, November 15, 1990, p. 11.
52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54 Ibid.
55 Id. at 105 (Emphasis supplied).
56 id. at 106.
57 Id.
58 TSN, November 15, 1990, p. 6.
59 Constriction of the air passages of the lung by spasmodic contraction
of the bronchial muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate oxygenation.
61 TSN, February 28, 1991, pp. 10-11.
62 Rule 130, RULES OF COURT.
63 61 Am Jur 2d, supra note 49, 516.
64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 Ibid.
66 It is a bluish coloration of the skin or mucous membranes caused by
lack of oxygen or abnormal hemoglobin in the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.
71 Id. The book provides a thorough discussion on the management of
difficult intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship captain who must
not only be responsible for the safety of the crew but also of the
passengers of the vessel. The head surgeon is made responsible for
everything that goes wrong within the four corners of the operating
room. It enunciates the liability of the surgeon not only for the wrongful
acts of those who are under his physical control but also those wherein
he has extension of control.
74 The term "consultant" is loosely used by hospitals to distinguish their
attending and visiting physicians from the residents, who are also
physicians. In most hospitals abroad, the term visiting or attending
physician, not consultant, is used.
75 These requirements are in fact found in the standard application
forms for visiting and attending physicians of respondent hospital.
76 The hospital's control over respondent physicians is all the more
significant when one considers the fact that it controls everything which
occurs in an operating room, through its nursing supervisors and charge
nurses. No operations can be undertaken without the hospital's direct or
indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides:
79 Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done.
80 Art. 2224, CIVIL CODE.
81 Should petitioner remain in the same condition for another ten years,
the amount awarded in the form of temperate damages would in fact, be
inadequate.
82 253 SCRA 303 (1996).
83 Id. at 327-328.
84 Id. at 328.
 THIRD DIVISION
G.R. No. 118231 July 5, 1996
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,
vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.
DAVIDE, JR., J.:p
Throughout history, patients have consigned their fates and lives to the skill of
their doctors. For a breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already
provided: "If a physician make a deep incision upon a man with his bronze lancet
and cause the man's death, or operate on the eye socket of a man with his bronze
lancet and destroy the man's eyes, they shall cut off his hand." 2 Subsequently,
Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow
that method of treatment which according to my ability and judgment, I consider
for the benefit of my patients, and abstain from whatever is deleterious and
mischievous. . . . While I continue to keep this oath unviolated may it be granted
me to enjoy life and practice the art, respected by all men at all times but should
I trespass and violate this oath, may the reverse be my lot." At present, the
primary objective of the medical profession if the preservation of life and
maintenance of the health of the people. 4
Needless to say then, when a physician strays from his sacred duty and endangers
instead the life of his patient, he must be made to answer therefor. Although
society today cannot and will not tolerate the punishment meted out by the
ancients, neither will it and this Court, as this case would show, let the act go
uncondemned.
The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994
in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December 1990 of
Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No.
9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial
Hospital, Dumaguete City from January 9, 1978 to September 1989.
Between 1987 and September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for
prenatal care as the latter's private patient sometime before September
21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of
Dr. Doris Teresita Sy who was also a Resident Physician at the same
Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses
performed a simple caesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered
her first child, Rachel Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until September 27, 1988
during which period of confinement she was regularly visited by Dr.
Batiquin. On September 28, 1988 Mrs. Villegas checked out of the
Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's
secretary, the amount of P1,500.00 as "professional fee". . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
pains and complained of being feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines. . . which she had been taking up to
December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.
Batiquin on October 31, 1988. . . certifying to her physical fitness to
return to her work on November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work at the Rural Bank of
Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs.
Villegas no end despite the medications administered by Dr. Batiquin.
When the pains became unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete
City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined
Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found
Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the umbilicus
which she suspected to be either a tumor of the uterus or an ovarian
cyst, either of which could be cancerous. She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs. Villegas had [an] infection
inside her abdominal cavity. The results of all those examinations
impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery
to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-
yellow discharge inside, an ovarian cyst on each of the left and right
ovaries which gave out pus, dirt and pus behind the uterus, and a piece
of rubber material on the right side of the uterus embedded on [sic] the
ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material
which Dr. Kho described as a "foreign body" looked like a piece of a
"rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could
have been a torn section of a surgeon's gloves or could have come from
other sources. And this foreign body was the cause of the infection of the
ovaries and consequently of all the discomfort suffered by Mrs. Villegas
after her delivery on September 21, 1988. 7
The piece of rubber allegedly found near private respondent Flotilde Villegas's
uterus was not presented in court, and although Dr. Ma. Salud Kho Testified that
she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned in
the pathologist's Surgical Pathology Report. 9
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of
rubber are a Medical Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a
Nurse's Record, 13 and a Physician's Discharge Summary. 14The trial court, however,
regarded these documentary evidence as mere hearsay, "there being no showing
that the person or persons who prepared them are deceased or unable to testify
on the facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"),
all the above documents were allegedly prepared by persons other than Dr. Kho,
and she merely affixed her signature on some of them to express her agreement
thereto. . . ." 15The trial court also refused to give weight to Dr. Kho's testimony
regarding the subject piece of rubber as Dr. Kho "may not have had first-hand
knowledge" thereof, 16 as could be gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't
know where the rubber was. 17
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there
was rubber indeed but that she threw it away." 18 This statement, the trial court
noted, was never denied nor disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of
that offending "rubber" — (1) that it was sent to the Pathologist
in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho
threw it away as told by her to Defendant. The failure of the
Plaintiffs to reconcile these two different versions serve only to
weaken their claim against Defendant Batiquin. 19
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even
without admitting the private respondents' documentary evidence, deemed Dr.
Kho's positive testimony to definitely establish that a piece of rubber was found
near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the
decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established
by preponderance of evidence. The trial court itself had
narrated what happened to appellant Flotilde after the
caesarean operation made by appellee doctor. . . . After the
second operation, appellant Flotilde became well and healthy.
Appellant Flotilde's troubles were caused by the infection due to
the "rubber" that was left inside her abdomen. Both appellant;
testified that after the operation made by appellee doctor, they
did not go to any other doctor until they finally decided to see
another doctor in January, 1989 when she was not getting any
better under the care of appellee Dr. Batiquin. . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided
when to close the operating area; that she examined the portion
she operated on before closing the same. . . Had she exercised
due diligence, appellee Dr. Batiquin would have found the
rubber and removed it before closing the operating area. 20
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of
P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and
medical expenses together with doctor's fees in the total
amount P9,900.00 (Exhs. G and G-2)] for the second operation
that saved her life.
For the miseries appellants endured for more than three (3)
months, due to the negligence of appellee Dr. Batiquin they are
entitled to moral damages in the amount of P100,000.00;
exemplary damages in the amount of P20,000.00 and attorney's
fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children
because her uterus and ovaries were removed by Dr. Kho is not
taken into consideration as it is not shown that the removal of
said organs were the direct result of the rubber left by appellee
Dr. Batiquin near the uterus. What is established is that the
rubber left by appellee caused infection, placed the life of
appellant Flotilde in jeopardy and caused appellant fear, worry
and anxiety. . . .
WHEREFORE, the appealed judgment, dismissing the complaint
for damages is REVERSED and SET ASIDE. Another judgment is
hereby entered ordering defendants-appellees to pay plaintiffs-
appellants the amounts of P17,000.00 as and for actual
damages; P100,000.00 as and for moral damages; P20,000.00 as
and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the costs of litigation.
SO ORDERED. 21
From the above judgment, the petitioners appealed to this Court claiming that
the appellate court: (1) committed grave abuse of discretion by resorting to
findings of fact not supported by the evidence on record, and (2) exceeded its
discretion, amounting to lack or excess of jurisdiction, when it gave credence to
testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of
fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for review
on certiorari, there are exceptions, among which are when the factual findings of
the trial court and the appellate court conflict, when the appealed decision is
clearly contradicted by the evidence on record, or when the appellate court
misapprehended the facts.22
After deciphering the cryptic petition, we find that the focal point of the instant
appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that
the Court of Appeals misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just
in case this would turn out to be a medico-legal
case, I have heard somebody that [sic] says [sic] there is [sic] a
foreign bodythat goes with the tissues but unluckily I don't kno
w where the rubber was. It was not in the Lab, it was not in
Cebu. 23 (emphasis supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was
based on hearsay. The Court of Appeals, on the other hand, concluded
that the underscored phrase was taken out of context by the trial court.
 According to the Court of Appeals, the trial court should have likewise
considered the other portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge
inside the abdomen, there was an ovarian cyst on the left and
side and there was also an ovarian cyst on the right which, on
opening up or freeing it up from the uterus, turned out to be
pus. Both ovaries turned out. . . to have pus. And then, cleaning
up the uterus, at the back of the uterus it was very dirty, it was
full of pus. And there was a [piece of] rubber, we found a [piece
of] rubber on the right
side. 24
We agree with the Court of Appeals. The phrase relied upon by the trial court
does not negate the fact that Dr. Kho saw a piece of rubber in private respondent
Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for
examination by a pathologist. 25 Not even the Pathologist's Report, although
devoid of any mention of a piece of rubber, could alter what Dr. Kho saw.
Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on
other than first-hand knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
26
A Oh yes. I was not the only one who saw it.
The petitioners emphasize that the private respondents never reconciled Dr. Kho's
testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said that there was a piece
of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was
not objected to, and hence, the same is admissible 27 but it carries no probative
value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie
the fact that Dr. Kho found a piece of rubber near private respondent Villegas's
uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent it to Cebu City, we are not
justified in distrusting her as to her recovery of a piece of rubber from private
respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe
the testimony of a witness with respect to some facts and disbelieve his testimony
with respect to other facts. And it has been aptly said that even when a witness is
found to have deliberately falsified in some material particulars, it is not required
that the whole of his uncorroborated testimony be rejected, but such portions
thereof deemed worthy of belief may be credited. 29
It is here worth noting that the trial court paid heed to the following portions of
Dr. Batiquin's testimony: that no rubber drain was used in the operation, 30 and
that there was neither any tear on Dr. Batiquin's gloves after the operation nor
blood smears on her hands upon removing her gloves. 31 Moreover, the trial court
pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy,
Dr. Batiquin's assistant during the operation on private respondent Villegas. 32 But
the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were
denials or negative testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony. 33 Of course, as the petitioners advocate, such
positive testimony must come from a credible source, which leads us to the
second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's
testimony, a regarding of the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn
on the witness stand. Furthermore, no motive to state any untruth was ever
imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34 The trial
court's following declaration shows that while it was critical of the lack of care
with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr.
Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she
testified about her findings, but it can also be said that she did
not take the most appropriate precaution to preserve that
"piece of rubber" as an eloquent evidence of what she would
reveal should there be a "legal problem" which she claim[s] to
have anticipated. 35
Considering that we have assessed Dr. Kho to be a credible witness, her positive
testimony [that a piece of rubber was indeed found in private respondent Villega's
abdomen] prevails over the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion
to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing
which causes injury is shown to be under the management of
the defendant, and the accident is such as in the ordinary
course of things does not happen in those who have the
management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the
accident arose from want of care." Or
as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself.
Rebuctable presumption or inference that defendant
was negligent, which arises upon proof that [the]
instrumentality causing injury was in defendant's
exclusive control, and that the accident was one which
ordinary does not happen in absence of negligence. Res
ipsa loquitur is [a] rule of evidence whereby negligence
of [the] alleged wrongdoer may be inferred from [the]
mere fact that [the] accident happened provided [the]
character of [the] accident and circumstances
attending it lead reasonably to belief that in [the]
absence of negligence it would not have occurred and
that thing which caused injury is shown to have been
under [the] management and control of [the] alleged
wrongdoer. . . . Under [this] doctrine
. . . the happening of an injury permits an inference of
negligence where plaintiff produces substantial
evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and
 management of defendant, and that the occurrence SO ORDERED.
[sic] was such that in the ordinary course of things Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.
would not happen if reasonable care had been used.
xxx xxx xxx Footnotes
The doctrine of [r]es ipsa loquitur as a rule of evidence 1 Implemented in Babylon, ca. 2250 B.C.
is peculiar to the law of negligence which recognizes 2 See L.J. REGAN, DOCTOR AND PATIENT AND THE LAW, 2d. ed. [1949],
that prima facie negligence may be established without 34.
direct proof and furnishes a substitute for specific 3 460-377 B.C.
proof of negligence. The doctrine is not a rule of 4 P. SOLIS, MEDICAL JURISPRUDENCE [1988 ed.], 5.
substantive law, but merely a mode of proof or a mere 5 Appendix "A" of Petition; Rollo, 12-22. Per Austria-Martinez, M.A., J.,
procedural convenience. The rule, when applicable to with Marigomen, A., and Reyes, R.JJ., concurring.
the facts and circumstances of a particular case, is not 6 Original Records (OR), 260-272. Per Judge Enrique C. Garrovillo.
intended to and does not dispense with the 7 OR, 261-264.
requirement of proof of culpable negligence on the 8 TSN, 12 July 1990, 49.
party charged. It merely determines and regulates 9 Id., 50-51.
what shall be prima facie evidence thereof and 10 OR, 132.
facilitates the burden of plaintiff of proving a breach of 11 Id., 135-137.
the duty of due care. The doctrine can be invoked 12 Id., 138.
when and only when, under the circumstances 13 Id., 139-140.
involved, direct evidence is absent and not readily 14 Id., 141.
available. 36 15 Id., 268.
16 Id., 266.
In the instant case, all the requisites for recourse to the doctrine are present. 17 TSN, 12 July 1990, 49.
First, the entire proceedings of the caesarean section were under the exclusive 18 OR, 269.
control of Dr. Batiquin. In this light, the private respondents were bereft of direct 19 Id.
evidence as to the actual culprit or the exact cause of the foreign object finding 20 Rollo, 20.
its way into private respondent Villegas's body, which, needless to say, does not 21 Id., 21.
occur unless through the intersection of negligence. Second, since aside from the 22 Remalante vs. Tibe, 158 SCRA 138, 145 [1988]; Medina vs. Asistio, 191
caesarean section, private respondent Villegas underwent no other operation SCRA 218, 223-224 [1990]; Borillo vs. Court of Appeals, 209 SCRA 130,
which could have caused the offending piece of rubber to appear in her uterus, it 140-141 [1992]; Director of Lands vs. Intermediate Appellate Court, 209
stands to reason that such could only have been a by-product of the caesarean SCRA 214, 221 [1992]; Margolles vs. Court of Appeals, 230 SCRA 97, 106
section performed by Dr. Batiquin. The petitioners, in this regard, failed to [1994].
overcome the presumption of negligence arising from resort to the doctrine of res 23 TSN, 12 July 1990, 49.
ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a 24 TSN, 12 July 1990, 9.
piece of rubber in private respondent Villegas's abdomen and for all the adverse 25 Id., 10-49.
effects thereof. 26 TSN, 12 July 1990, 10.
As a final word, this Court reiterates its recognition of the vital role the medical 27 RICARDO J. FRANCISCO, Evidence, 255 [1993].
profession plays in the lives of the people, 37 and the State's compelling interest 28 People vs. Laurente, G.R. No. 116734, 29 March 1996, at 24, citations
to enact measures to protect the public from "the potentially deadly effects of omitted.
incompetence and ignorance in those who would undertake to treat our bodies 29 People vs. Ducay, 225 SCRA 1, 14 [1993]; People vs. Cañeja, 235 SCRA
and minds for disease or trauma." 38 Indeed, a physician is bound to serve the 328, 337 [1994].
interest of his patients "with the greatest of solicitude, giving them always his 30 TSN, 31 August 1990, 20.
best talent and skill." 39 Through her tortious conduct, the petitioner endangered 31 Id., 21.
the life of Flotilde Villegas, in violation of her profession's rigid ethical code and 32 TSN, 10 September 1990, 5.
in contravention of the legal standards set forth for professionals, in 33 People vs. Antonio, 233 SCRA 283, 299 [1994].
general, 40 and members of the medical profession, 41 in particular. 34 See People vs. De Leon, 245 SCRA 538, 545 [1995]; People vs.
Malunes, 247 SCRA 317, 326-327 [1995].
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in
35 OR, 267.
CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
36 Layugan vs. Intermediate Appellate Court, 167 SCRA 363, 376-377
Costs against the petitioners. [1988]. See discussions in Martinez vs. Van Buskirk, 18 Phil. 79, 85-86
[1910]; Africa vs. Caltex (Phil.) Inc., 16 SCRA 448, 454-456 [1966]; F.F.
Cruz and Co., Inc. vs. Court of Appeals, 164 SCRA 731, 736 [1988].
37 Department of Education, Culture, and Sports vs. San Diego, 180 SCRA
533, 538 [1989].
38 Tablarin vs. Gutierrez, 152 SCRA 730, 743, [1987].
39 Section 3, Article 1, 1960 Code of Ethics of the Medical Profession in
the Philippines, as cited in Carillo vs. People, 229 SCRA 386, 396 [1994].
40 Culion Ice, Fish & Elec. Co. vs. Phil. Motors Corporation, 55 Phil. 129-
133 [1930].
41 Stevenson vs. Yates, 208 SW 820 [1919]; Kennedy vs. Parrott, 90 SE 2d
754 [1956]; DeLaughter vs. Womack, 164 So 2d 762 [1994]; Hill vs.
Stewart, 209 So 2d 809 [1968].
 FIRST DIVISION
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J.:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D.
M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his
death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and
filed a report dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig,
Metro Manila where he was pronounced dead on arrival (DOA) by the
attending physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same
date.
Investigation disclosed that at the given time, date and place, while
victim Jose A. Juego together with Jessie Jaluag and Delso Destajo
[were] performing their work as carpenter[s] at the elevator core of the
14th floor of the Tower D, Renaissance Tower Building on board a
[p]latform made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires attached to
its four corners and hooked at the 5 ton chain block, when suddenly, the
bolt or pin which was merely inserted to connect the chain block with
the [p]latform, got loose xxx causing the whole [p]latform assembly and
the victim to fall down to the basement of the elevator core, Tower D of
the building under construction thereby crushing the victim of death,
save his two (2) companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the
[p]latform he was then on board and performing work, fell. And the
falling of the [p]latform was due to the removal or getting loose of the
pin which was merely inserted to the connecting points of the chain
block and [p]latform but without a safety lock.1
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC)
of Pasig a complaint for damages against the deceased’s employer, D.M. Consunji,
Inc. The employer raised, among other defenses, the widow’s prior availment of
the benefits from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The
dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay
plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of
the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
• THE APPELLATE COURT ERRED IN HOLDING THAT THE
POLICE REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED
NEGLIGENCE OF PETITIONER.
• THE APPELLATE COURT ERRED IN HOLDING THAT THE
DOCTRINE OF RES IPSA LOQUITOR [sic] IS APPLICABLE TO PROVE
NEGLIGENCE ON THE PART OF PETITIONER.
• THE APPELLATE COURT ERRED IN HOLDING THAT
PETITIONER IS PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF
THE CIVIL CODE, AND
• THE APPELLATE COURT ERRED IN HOLDING THAT
RESPONDENT IS NOT PRECLUDED FROM RECOVERING DAMAGES
UNDER THE CIVIL CODE.3
Petitioner maintains that the police report reproduced above is hearsay and,
therefore, inadmissible. The CA ruled otherwise. It held that said report, being an
entry in official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he
knows of his personal knowledge, that is, which are derived from his
perception.4 A witness, therefore, may not testify as what he merely learned from
others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that
excludes hearsay as evidence applies to written, as well as oral statements.6
The theory of the hearsay rule is that the many possible deficiencies,
suppressions, sources of error and untrustworthiness, which lie underneath the
bare untested assertion of a witness, may be best brought to light and exposed by
the test of cross-examiantion.7 The hearsay rule, therefore, excludes evidence
that cannot be tested by cross-examination.8
The Rules of Court allow several exceptions to the rule,9 among which are entries
in official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in
the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law areprima
facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of
Chief Justice Moran, enumerated the requisites for admissibility under the above
rule:
(a) that the entry was made by a public officer or by another person
specially enjoined by law to do so;
 (b) that it was made by the public officer in the performance of his
duties, or by such other person in the performance of a duty specially
enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him
personally or through official information.
The CA held that the police report meets all these requisites. Petitioner contends
that the last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also
testified before the trial court. InRodriguez vs. Court of Appeals,11 which involved
a Fire Investigation Report, the officer who signed the fire report also testified
before the trial court. This Court held that the report was inadmissible for the
purpose of proving the truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony of the officer who
executed the report.
x x x. Since Major Enriquez himself took the witness stand and was
available for cross-examination, the portions of the report which were of
his personal knowledge or which consisted of his perceptions and
conclusions were not hearsay. The rest of the report, such as the
summary of the statements of the parties based on their sworn
statements (which were annexed to the Report) as well as the latter,
having been included in the first purpose of the offer [as part of the
testimony of Major Enriquez], may then be considered as independently
relevant statements which were gathered in the course of the
investigation and may thus be admitted as such, but not necessarily to
prove the truth thereof. It has been said that:
"Where regardless of the truth or falsity of a statement, the fact
that it has been made is relevant, the hearsay rule does not
apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the
statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on
his Report and made himself available for cross-examination by the
adverse party, the Report, insofar as it proved that certain utterances
were made (but not their truth), was effectively removed from the ambit
of the aforementioned Section 44 of Rule 130. Properly understood, this
section does away with the testimony in open court of the officer who
made the official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record admissible in
evidence as prima facie evidence of the facts therein stated. The
underlying reasons for this exceptionary rule are necessity and
trustworthiness, as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily
needed; the occasions in which the officials would be summoned
from his ordinary duties to declare as a witness are numberless.
The public officers are few in whose daily work something is not
done in which testimony is not needed from official sources.
Were there no exception for official statements, hosts of
officials would be found devoting the greater part of their time
to attending as witnesses in court or delivering deposition
before an officer. The work of administration of government
and the interest of the public having business with officials
would alike suffer in consequence. For these reasons, and for
many others, a certain verity is accorded such documents,
which is not extended to private documents. (3 Wigmore on
Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it
presumes they will discharge their several trusts with accuracy
and fidelity; and, therefore, whatever acts they do in discharge
of their duty may be given in evidence and shall be taken to be
true under such a degree of caution as to the nature and
circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not
presented to testify on his report. In that case the applicability of
Section 44 of Rule 143 would have been ripe for determination, and this
Court would have agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was not satisfied.
The statements given by the sources of information of Major Enriquez
failed to qualify as "official information," there being no showing that, at
the very least, they were under a duty to give the statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving
the truth of the statements contained therein but is admissible insofar as it
constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanueva’s testimony which
were of his personal knowledge suffice to prove that Jose Juego indeed died as a
result of the elevator crash. PO3 Villanueva had seen Juego’s remains at the
morgue,12 making the latter’s death beyond dispute. PO3 Villanueva also
conducted an ocular inspection of the premises of the building the day after the
incident13 and saw the platform for himself.14 He observed that the platform was
crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon inspection,
he noticed that the chain was detached from the lifting machine, without any pin
or bolt.17
What petitioner takes particular exception to is PO3 Villanueva’s testimony that
the cause of the fall of the platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is mere opinion. Subject to
certain exceptions,18 the opinion of a witness is generally not admissible.19
Petitioner’s contention, however, loses relevance in the face of the application
of res ipsa loquitur by the CA. The effect of the doctrine is to warrant a
presumption or inference that the mere fall of the elevator was a result of the
person having charge of the instrumentality was negligent. As a rule of evidence,
the doctrine of res ipsa loquituris peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof
and furnishes a substitute for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this wise:
 While negligence is not ordinarily inferred or presumed, and while the
mere happening of an accident or injury will not generally give rise to an
inference or presumption that it was due to negligence on defendant’s
part, under the doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction, that the
thing or instrumentality speaks for itself, the facts or circumstances
accompanying an injury may be such as to raise a presumption, or at
least permit an inference of negligence on the part of the defendant, or
some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused
the injury complained of was under the control or management of the
defendant, and that the occurrence resulting in the injury was such as in
the ordinary course of things would not happen if those who had its
control or management used proper care, there is sufficient evidence,
or, as sometimes stated, reasonable evidence, in the absence of
explanation by the defendant, that the injury arose from or was caused
by the defendant’s want of care.21
One of the theoretical based for the doctrine is its necessity, i.e., that necessary
evidence is absent or not available.22
The res ipsa loquitur doctrine is based in part upon the theory that the
defendant in charge of the instrumentality which causes the injury either
knows the cause of the accident or has the best opportunity of
ascertaining it and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general terms and to rely
upon the proof of the happening of the accident in order to establish
negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or
innocent, is practically accessible to the defendant but inaccessible to
the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge
by which a plaintiff, without knowledge of the cause, reaches over to
defendant who knows or should know the cause, for any explanation of
care exercised by the defendant in respect of the matter of which the
plaintiff complains. The res ipsa loquitur doctrine, another court has
said, is a rule of necessity, in that it proceeds on the theory that under
the peculiar circumstances in which the doctrine is applicable, it is
within the power of the defendant to show that there was no negligence
on his part, and direct proof of defendant’s negligence is beyond
plaintiff’s power. Accordingly, some court add to the three prerequisites
for the application of the res ipsa loquitur doctrine the further
requirement that for the res ipsa loquitur doctrine to apply, it must
appear that the injured party had no knowledge or means of knowledge
as to the cause of the accident, or that the party to be charged with
negligence has superior knowledge or opportunity for explanation of the
accident.23
The CA held that all the requisites of res ipsa loquitur are present in the case at
bar:
There is no dispute that appellee’s husband fell down from the 14th floor
of a building to the basement while he was working with appellant’s
construction project, resulting to his death. The construction site is
within the exclusive control and management of appellant. It has a
safety engineer, a project superintendent, a carpenter leadman and
others who are in complete control of the situation therein. The
circumstances of any accident that would occur therein are peculiarly
within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it applies where
evidence is absent or not readily available, provided the following
requisites are present: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the
person charged with negligence; and (3) the injury suffered must not
have been due to any voluntary action or contribution on the part of the
person injured. x x x.
No worker is going to fall from the 14 th floor of a building to the
basement while performing work in a construction site unless someone is
negligent[;] thus, the first requisite for the application of the rule of res
ipsa loquitur is present. As explained earlier, the construction site with
all its paraphernalia and human resources that likely caused the injury is
under the exclusive control and management of appellant[;] thus[,] the
second requisite is also present. No contributory negligence was
attributed to the appellee’s deceased husband[;] thus[,] the last
requisite is also present. All the requisites for the application of the rule
of res ipsa loquitur are present, thus a reasonable presumption or
inference of appellant’s negligence arises. x x x.24
Petitioner does not dispute the existence of the requisites for the application
of res ipsa loquitur, but argues that the presumption or inference that it was
negligent did not arise since it "proved that it exercised due care to avoid the
accident which befell respondent’s husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As
stated earlier, the defendant’s negligence is presumed or inferred 25 when the
plaintiff establishes the requisites for the application of res ipsa loquitur. Once
the plaintiff makes out a prima facie case of all the elements, the burden then
shifts to defendant to explain.26 The presumption or inference may be rebutted or
overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the
inference.27 It is not for the defendant to explain or prove its defense to prevent
the presumption or inference from arising. Evidence by the defendant of say, due
care, comes into play only after the circumstances for the application of the
doctrine has been established.1âwphi1.nêt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro
executed before the police investigator as evidence of its due care. According to
Fabro’s sworn statement, the company enacted rules and regulations for the
safety and security of its workers. Moreover, the leadman and
the bodegero inspect the chain block before allowing its use.
It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due
care but, in arguing that private respondent failed to prove negligence on the
part of petitioner’s employees, also assails the same statement for being hearsay.
Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible.
Affidavits are inadmissible as evidence under the hearsay rule, unless the affiant
is placed on the witness stand to testify thereon.28 The inadmissibility of this sort
of evidence is based not only on the lack of opportunity on the part of the adverse
party to cross-examine the affiant, but also on the commonly known fact that,
generally, an affidavit is not prepared by the affiant himself but by another who
uses his own language in writing the affiant’s statements which may either be
omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot
use said statement as proof of its due care any more than private respondent can
use it to prove the cause of her husband’s death. Regrettably, petitioner does not
cite any other evidence to rebut the inference or presumption of negligence
arising from the application of res ipsa loquitur, or to establish any defense
relating to the incident.
Next, petitioner argues that private respondent had previously availed of the
death benefits provided under the Labor Code and is, therefore, precluded from
claiming from the deceased’s employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. – Unless otherwise provided, the liability
of the State Insurance Fund under this Title shall be exclusive and in
place of all other liabilities of the employer to the employee, his
dependents or anyone otherwise entitled to receive damages on behalf
of the employee or his dependents. The payment of compensation under
this Title shall not bar the recovery of benefits as provided for in Section
699 of the Revised Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered Six hundred ten,
as amended, Republic Act Numbered Forty-eight hundred sixty-four as
amended, and other laws whose benefits are administered by the System
or by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s
Compensation Act, provided that:
Section 5. Exclusive right to compensation. – The rights and remedies
granted by this Act to an employee by reason of a personal injury
entitling him to compensation shall exclude all other rights and remedies
accruing to the employee, his personal representatives, dependents or
nearest of kin against the employer under the Civil Code and other laws
because of said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed recovery under
said Act as well as under the Civil Code used to be the subject of conflicting
decisions. The Court finally settled the matter in Floresca vs.Philex Mining
Corporation,30 which involved a cave-in resulting in the death of the employees of
the Philex Mining Corporation. Alleging that the mining corporation, in violation of
government rules and regulations, failed to take the required precautions for the
protection of the employees, the heirs of the deceased employees filed a
complaint against Philex Mining in the Court of First Instance (CFI). Upon motion
of Philex Mining, the CFI dismissed the complaint for lack of jurisdiction. The
heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of
the Court En Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held
in the affirmative.
WE now come to the query as to whether or not the injured employee or
his heirs in case of death have a right of selection or choice of action
between availing themselves of the worker’s right under the Workmen’s
Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and exemplary) from the employers by
virtue of the negligence or fault of the employers or whether they may
avail themselves cumulatively of both actions, i.e., collect the limited
compensation under the Workmen’s Compensation Act and sue in
addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus
Company, 32 SCRA 442, ruled thatan injured worker has a choice of
either to recover from the employer the fixed amounts set by the
Workmen’s Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot pursue both
courses of action simultaneously. [Underscoring supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed
with their suit under the Civil Code despite having availed of the benefits
provided under the Workmen’s Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its
motion to dismiss dated May 14, 1968 before the court a quo, that the
heirs of the deceased employees, namely Emerito Obra, Larry Villar, Jr.,
Aurelio Lanuza, Lorenzo Isla and Saturnino submitted notices and claims
for compensation to the Regional Office No. 1 of the then Department of
Labor and all of them have been paid in full as of August 25, 1967,
except Saturnino Martinez whose heirs decided that they be paid in
installments x x x. Such allegation was admitted by herein petitioners in
their opposition to the motion to dismiss dated may 27, 1968 x x x in the
lower court, but they set up the defense that the claims were filed under
the Workmen’s Compensation Act before they learned of the official
report of the committee created to investigate the accident which
established the criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to then Executive
Secretary Rafael Salas in a letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits
under the Workmen’s Compensation Act, such my not preclude them
from bringing an action before the regular court because they became
cognizant of the fact that Philex has been remiss in its contractual
obligations with the deceased miners only after receiving compensation
under the Act. Had petitioners been aware of said violation of
government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmen’s Compensation
Commission which awarded a lesser amount for compensation. The
choice of the first remedy was based on ignorance or a mistake of fact,
which nullifies the choice as it was not an intelligent choice. The case
should therefore be remanded to the lower court for further
proceedings. However, should the petitioners be successful in their bid
 before the lower court, the payments made under the Workmen’s
Compensation Act should be deducted from the damages that may be
decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated
in Ysmael Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-
Go,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last case, the Court again
recognized that a claimant who had been paid under the Act could still sue under
the Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by
workers in the course of their employment could be filed only under the
Workmen’s Compensation Law, to the exclusion of all further claims
under other laws. In Floresca, this doctrine was abrogated in favor of the
new rule that the claimants may invoke either the Workmen’s
Compensation Act or the provisions of the Civil Code, subject to the
consequence that the choice of one remedy will exclude the other and
that the acceptance of compensation under the remedy chosen will
preclude a claim for additional benefits under the other remedy. The
exception is where a claimant who has already been paid under the
Workmen’s Compensation Act may still sue for damages under the Civil
Code on the basis of supervening facts or developments occurring after
he opted for the first remedy. (Underscoring supplied.)
Here, the CA held that private respondent’s case came under the exception
because private respondent was unaware of petitioner’s negligence when she
filed her claim for death benefits from the State Insurance Fund. Private
respondent filed the civil complaint for damages after she received a copy of the
police investigation report and the Prosecutor’s Memorandum dismissing the
criminal complaint against petitioner’s personnel. While stating that there was no
negligence attributable to the respondents in the complaint, the prosecutor
nevertheless noted in the Memorandum that, "if at all," the "case is civil in
nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged
negligence of appellant as early as November 25, 1990, the date of the
police investigator’s report. The appellee merely executed her sworn
statement before the police investigator concerning her personal
circumstances, her relation to the victim, and her knowledge of the
accident. She did not file the complaint for "Simple Negligence Resulting
to Homicide" against appellant’s employees. It was the investigator who
recommended the filing of said case and his supervisor referred the same
to the prosecutor’s office. This is a standard operating procedure for
police investigators which appellee may not have even known. This may
explain why no complainant is mentioned in the preliminary statement of
the public prosecutor in her memorandum dated February 6, 1991, to
wit: "Respondent Ferdinand Fabro x x x are being charged by
complainant of "Simple Negligence Resulting to Homicide." It is also
possible that the appellee did not have a chance to appear before the
public prosecutor as can be inferred from the following statement in said
memorandum: "Respondents who were notified pursuant to Law waived
their rights to present controverting evidence," thus there was no reason
for the public prosecutor to summon the appellee. Hence, notice of
appellant’s negligence cannot be imputed on appellee before she applied
for death benefits under ECC or before she received the first payment
therefrom. Her using the police investigation report to support her
complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the
Prosecutor’s Office dismissing the criminal complaint for insufficiency of
evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all
and as shown by the records this case is civil in nature." (Underscoring
supplied.) Considering the foregoing, We are more inclined to believe
appellee’s allegation that she learned about appellant’s negligence only
after she applied for and received the benefits under ECC. This is a
mistake of fact that will make this case fall under the exception held in
the Floresca ruling.35
The CA further held that not only was private respondent ignorant of the facts,
but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only
elementary school for her educational attainment; that she did not know
what damages could be recovered from the death of her husband; and
that she did not know that she may also recover more from the Civil
Code than from the ECC. x x x.36
Petitioner impugns the foregoing rulings. It contends that private respondent
"failed to allege in her complaint that her application and receipt of benefits from
the ECC were attended by ignorance or mistake of fact. Not being an issue
submitted during the trial, the trial court had no authority to hear or adjudicate
that issue."
Petitioner also claims that private respondent could not have been ignorant of the
facts because as early as November 28, 1990, private respondent was the
complainant in a criminal complaint for "Simple Negligence Resulting to Homicide"
against petitioner’s employees. On February 6, 1991, two months before the filing
of the action in the lower court, Prosecutor Lorna Lee issued a resolution finding
that, although there was insufficient evidence against petitioner’s employees, the
case was "civil in nature." These purportedly show that prior to her receipt of
death benefits from the ECC on January 2, 1991 and every month thereafter,
private respondent also knew of the two choices of remedies available to her and
yet she chose to claim and receive the benefits from the ECC.
When a party having knowledge of the facts makes an election between
inconsistent remedies, the election is final and bars any action, suit, or
proceeding inconsistent with the elected remedy, in the absence of fraud by the
other party. The first act of election acts as a bar.37 Equitable in nature, the
doctrine of election of remedies is designed to mitigate possible unfairness to
both parties. It rests on the moral premise that it is fair to hold people
responsible for their choices. The purpose of the doctrine is not to prevent any
recourse to any remedy, but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by
election. Hence, the rule in Florescathat a claimant cannot simultaneously pursue
recovery under the Labor Code and prosecute an ordinary course of action under
the Civil Code. The claimant, by his choice of one remedy, is deemed to have
waived the other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a party has
knowledge of its rights, but chooses not to assert them. It must be
generally shown by the party claiming a waiver that the person against
whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of all material facts
upon which they depended. Where one lacks knowledge of a right, there
is no basis upon which waiver of it can rest. Ignorance of a material fact
negates waiver, and waiver cannot be established by a consent given
under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows
that a right exists and has adequate knowledge upon which to make an
intelligent decision.
Waiver requires a knowledge of the facts basic to the exercise of the
right waived, with an awareness of its consequences. That a waiver is
made knowingly and intelligently must be illustrated on the record or by
the evidence.40
That lack of knowledge of a fact that nullifies the election of a remedy is the
basis for the exception in Floresca.
It is in light of the foregoing principles that we address petitioner’s contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as
plaintiff, to allege in her complaint that she had availed of benefits from the ECC.
It is, thus, erroneous for petitioner to burden private respondent with raising
waiver as an issue. On the contrary, it is the defendant who ought to plead
waiver, as petitioner did in pages 2-3 of its Answer; 41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now contend that the trial
court had no jurisdiction over the issue when petitioner itself pleaded waiver in
the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her
husband’s death and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake
of fact. In this case, the "fact" that served as a basis for nullifying the waiver is
the negligence of petitioner’s employees, of which private respondent
purportedly learned only after the prosecutor issued a resolution stating that
there may be civil liability. InFloresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or
violation of government rules and regulations, for that matter, however, is not a
fact, but aconclusion of law, over which only the courts have the final say. Such a
conclusion binds no one until the courts have decreed so. It appears, therefore,
that the principle that ignorance or mistake of fact nullifies a waiver has been
misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband
died in the elevator crash when on November 15, 1990 she accomplished her
application for benefits from the ECC. The police investigation report is dated
November 25, 1990, 10 days after the accomplishment of the form. Petitioner
filed the application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of the remedies available
to her when the claim before the ECC was filed. On the contrary, private
respondent testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the
law excuses no one from compliance therewith. As judicial decisions applying or
interpreting the laws or the Constitution form part of the Philippine legal system
(Article 8, Civil Code), private respondent cannot claim ignorance of this Court’s
ruling inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory
and prohibitory laws.42 This may be deduced from the language of the provision,
which, notwithstanding a person’s ignorance, does not excuse his or
her compliance with the laws. The rule in Floresca allowing private respondent a
choice of remedies is neither mandatory nor prohibitory. Accordingly, her
ignorance thereof cannot be held against her.
Finally, the Court modifies the affirmance of the award of damages. The records
do not indicate the total amount private respondent ought to receive from the
ECC, although it appears from Exhibit "K"43 that she received P3,581.85 as initial
payment representing the accrued pension from November 1990 to March 1991.
Her initial monthly pension, according to the same Exhibit "K," was P596.97 and
present total monthly pension was P716.40. Whether the total amount she will
eventually receive from the ECC is less than the sum of P644,000.00 in total
damages awarded by the trial court is subject to speculation, and the case is
remanded to the trial court for such determination. Should the trial court find
that its award is greater than that of the ECC, payments already received by
private respondent under the Labor Code shall be deducted from the trial court'’
award of damages. Consistent with our ruling in Floresca, this adjudication aims
to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to
determine whether the award decreed in its decision is more than that of the
ECC. Should the award decreed by the trial court be greater than that awarded by
the ECC, payments already made to private respondent pursuant to the Labor
Code shall be deducted therefrom. In all other respects, the Decision of the Court
of Appeals is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.
Footnote
1
Exhibit "A," Records, pp. 60-61.
2
Rollo, pp. 79-80.
3
Id., at 19.
4
Sec. 36, Rule 130.
5
People vs. Ramos, 122 SCRA 312 (1983).
6
31A C.J.S. Evidence § 194. See also Philippine Home Assurance Corp.
vs. Court of Appeals, 257 SCRA 479 (1996).
7
5 J. H. Wigmore, A Treatise on the Anglo-American System of Evidence
in Trials at Common Law 3 (3rdEd.).
8
San Sebastian College vs. Court of Appeals, 197 SCRA 138 (1991).
9
See Rules of Court, Rule 130, Sections 37-47.
10
16 SCRA 448 (1966). See also People vs. San Gabriel, 253 SCRA 84
(1996).
11
273 SCRA 607 (1997).
12
TSN, December 20, 1991, p. 9.
13
Id., at 28; TSN, January 6, 1992, p. 29.
14
Id., at 29; Ibid.
15
Id., at 33.
16
Id., at 34.
17
Id., at 24 and 28.
18
Rules of Court, Rule 130, Sections 49-50.
19
Id., Sec. 48.
20
Layugan vs. Intermediate Appellate Court, 167 SCRA 363 (1988). See
also Batiquin vs. Court of Appeals, 258 SCRA 334 (1996); Radio
Communications of the Philippines, Inc. vs. Court of Appeals, 143 SCRA
657 (1986).
21
57B Am Jur 2d, Negligence § 1819.
22
Id., at 1824.
23
Id., at 1914.
24
Rollo, pp. 87-88.
25
Whether the doctrine raises a presumption or merely an inference is
subject to debate. See 57B Am Jur 2d, Negligence §§ 1925-1928.
26
Id., at 1920.
27
Id., at 1947.
28
People vs. Villeza, 127 SCRA 349 (1984); People vs. Quidato, 297 SCRA
1 (1998).
29
People vs. Ramos, supra.
30
136 SCRA 141 (1985).
31
Justices Aquino, Melencio-Herrera, and Gutierrez dissented.
32
151 SCRA 333 (1987).
33
157 SCRA 446 (1988).
34
164 SCRA 317 (1988).
35
Rollo, pp. 90-91. Underscoring by the Court of Appeals.
36
Id., at 90. Underscoring by the Court of Appeals.
37
Id., at § 5.
38
Id., at § 2.
39
Castro vs. Del Rosario, et al., 19 SCRA 196 (1967).
40
28 Am Jur 2d, Estoppel and Waiver § 202.
41
Records, pp. 17-18.
42
I Tolentino, A.M. Commentaries and Jurisprudence on the Civil Code of
the Philippines 19 (1995).
43
Records, p. 100.
 EN BANC
G.R. No. L-8328 May 18, 1956
MANILA ELECTRIC COMPANY, Petitioner,
vs.
SOTERO REMOQUILLO, in his own behalf and as guardian of the minors
MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE and AURORA,
all surnamed MAGNO, SALUD MAGNO, and the COURT OF APPEALS (Second
Division), Respondents.
DECISION
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza,
his stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media
agua” said to be in a leaking condition. The “media agua” was just below the
window of the third story. Standing on said “media agua”, Magno received from
his son thru that window a 3’ X 6’ galvanized iron sheet to cover the leaking
portion, turned around and in doing so the lower end of the iron sheet came into
contact with the electric wire of the Manila Electric Company (later referred to as
the Company) strung parallel to the edge of the “media agua” and 2 1/2 feet
from it, causing his death by electrocution. His widow and children fled suit to
recover damages from the company. After hearing, the trial court rendered
judgment in their favor — P10,000 as compensatory damages; P784 as actual
damages; P2,000 as moral and exemplary damages; and P3,000 as attorney’s fees,
with costs. On appeal to the Court of Appeals, the latter affirmed the judgment
with slight modification by reducing the attorney’s fees from P3,000 to P1,000
with costs. The electric company has appealed said decision to us.
The findings of fact made by the Court of Appeals which are conclusive are stated
in the following portions of its decision which we reproduce below:
“The electric wire in question was an exposed, uninsulated primary wire
stretched between poles on the street and carrying a charge of 3,600 volts. It was
installed there some two years before Peñaloza’s house was constructed. The
record shows that during the construction of said house a similar incident took
place, although fortunate]y with much less tragic consequences. A piece of wood
which a carpenter was holding happened to come in contact with the same wire,
producing some sparks. The owner of the house forthwith complained
toDefendant about the danger which the wire presented, and as a
result Defendant moved one end of the wire farther from the house by means of a
brace, but left the other end where it was.
“At any rate, as revealed by the ocular inspection of the premises ordered by the
trial court, the distance from the electric wire to the edge of the ‘media agua’ on
which the deceased was making repairs was only 30 inches or 2 1/2 feet.
Regulations of the City of Manila required that ‘all wires be kept three feet from
the building.’ Appellant contends that in applying said regulations to the case at
bar the reckoning should not be from the edge of the ‘media agua’ but from the
side of the house and that, thus measured, the distance was almost 7 feet, or
more then the minimum prescribed. This contention is manifestly groundless, for
not only is a ‘media agua’ an integral part of the building to which it is attached
but to exclude it in measuring the distance would defeat the purpose of the
regulation. Appellant points out, nevertheless, that even assuming that the
distance, within the meaning of the city regulations, should be measured from the
edge of the ‘media agua’, the fact that in the case of the house involved herein
such distance was actually less than 3 feet was due to the fault of the owner of
said house, because the city authorities gave him a permit to construct a ‘media
agua’ only one meter or 39 1/2 inches wide, but instead he built one having a
width of 65 3/4 inches, 17 3/8 inches more than the width permitted by the
authorities, thereby reducing the distance to the electric wire to less than the
prescribed minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in the permit
given to him by the city authorities for the construction of the ‘media agua’, and
that if he had not done soAppellants wire would have been 11 3/8 (inches) more
than the required distance of three feet from the edge of the ‘media agua’. It is
also a fact, however, that after the ‘media agua’ was constructed the owner was
given a final permit of occupancy of the house.
“The wire was an exposed, high tension wire carrying a load of 3,600 volts. There
was, according to Appellant, no insulation that could have rendered it safe, first,
because there is no insulation material in commercial use for such kind of
wire; and secondly, because the only insulation material that may be effective is
still in the experimental stage of development and, anyway, its costs would be
prohibitive… ”
The theory followed by the appellate court in finding for the Plaintiff is that
although the owner of the house in constructing the “media agua” in question
exceeded the limits fixed in the permit, still, after making that “media agua”, its
construction though illegal, was finally approved because he was given a final
permit to occupy the house; that it was the company that was at fault and was
guilty of negligence because although the electric wire in question had been
installed long before the construction of the house and in accordance with the
ordinance fixing a minimum of 3 feet, mere compliance with the regulations does
not satisfy the requirement of due diligence nor avoid the need for adopting such
other precautionary measures as may be warranted; that negligence cannot be
determined by a simple matter of inches; that all that the city did was to
prescribe certain minimum conditions and that just because the ordinance
required that primary electric wires should be not less than 3 feet from any
house, the obligation of due diligence is not fulfilled by placing such wires at a
distance of 3 feet and one inch, regardless of other factors. The appellate court,
however, refrained from stating or suggesting what other precautionary measures
could and should have been adopted.
After a careful study and discussion of the case and the circumstances surrounding
the same, we are inclined to agree to the contention of Petitioner Company that
the death of Magno was primarily caused by his own negligence and in some
measure by the too close proximity of the “media agua” or rather its edge to the
electric wire of the company by reason of the violation of the original permit
given by the city and the subsequent approval of said illegal construction of the
“media agua”. We fail to see how the Company could be held guilty of negligence
or as lacking in due diligence. Although the city ordinance called for a distance of
3 feet of its wires from any building, there was actually a distance of 7 feet and 2
3/4 inches of the wires from the side of the house of Peñaloza. Even considering
said regulation distance of 3 feet as referring not to the side of a building, but to
any projecting part thereof, such as a “media agua”, had the house owner
followed the terms of the permit given him by the city for the construction of his
“media agua”, namely, one meter or 39 3/8 inches wide, the distance from the
wires to the edge of said “media agua” would have been 3 feet and 11 3/8 inches.
In fixing said one meter width for the “media agua” the city authorities must have
wanted to preserve the distance of at least 3 feet between the wires and any
portion of a building. Unfortunately, however, the house owner disregarding the
permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving
only a distance of 2 1/2 feet between the “Media agua” as illegally constructed
and the electric wires. And added to this violation of the permit by the house
owner, was its approval by the city through its agent, possibly an inspector. Surely
we cannot lay these serious violations of a city ordinance and permit at the door
of the Company, guiltless of breach of any ordinance or regulation. The Company
cannot be expected to be always on the lookout for any illegal construction which
reduces the distance between its wires and said construction, and after finding
that said distance of 3 feet had been reduced, to change the stringing or
installation of its wires so as to preserve said distance. It would be much easier
for the City, or rather it is its duty, to be ever on the alert and to see to it that its
ordinances are strictly followed by house owners and to condemn or disapprove
all illegal constructions. Of course, in the present case, the violation of the
permit for the construction of the “media agua” was not the direct cause of the
accident. It merely contributed to it. Had said “media agua” been only one meter
wide as allowed by the permit, Magno standing on it, would instinctively have
stayed closer to or hugged the side of the house in order to keep a safe margin
between the edge of the “media agua” and the yawning 2-story distance or height
from the ground, and possibly if not probably avoided the fatal contact between
the lower end of the iron sheet and the wires.
We realize that the presence of the wires in question quite close to the house or
its “media agua” was always a source of danger considering their high voltage and
uninsulated as they were, but the claim of the company and the reasons given by
it for not insulating said wires were unrefuted as we gather from the findings of
the Court of Appeals, and so we have to accept them as satisfactory.
Consequently, we may not hold said company as guilty of negligence or wanting in
due diligence in failing to insulate said wires. As to their proximity to the house it
is to be supposed that distance of 3 feet was considered sufficiently safe by the
technical men of the city such as its electrician or engineer. Of course, a greater
distance of say 6 feet or 12 feet would have increased the margin of safety but
other factors had to be considered such as that the wires could not be strung or
the posts supporting them could not be located too far toward the middle of the
street. Thus, the real cause of the accident or death was the reckless or negligent
act of Magno himself. When he was called by his stepbrother to repair the “media
agua” just below the third story window, it is to be presumed that due to his age
and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter
and had training and experience for the job. So, he could not have been entirely a
stranger to electric wires and the danger lurking in them. But unfortunately, in
the instant care, his training and experience failed him, and forgetting where he
was standing, holding the 6-feet iron sheet with both hands and at arms length,
evidently without looking, and throwing all prudence and discretion to the winds,
he turned around swinging his arms with the motion of his body, thereby causing
his own electrocution.
In support of its theory and holding that Defendant-Appellant was liable for
damages the Court of Appeals cites the case of Astudillo vs. Manila Electric Co.,
55 Phil., 427. We do not think the case is exactly applicable. There, the premises
involved was that elevated portion or top of the walls of Intramuros, Manila, just
above the Sta. Lucia Gate. In the words of the Court, it was “a public place where
persons come to stroll, to rest and to enjoy themselves”. The electric company
was clearly negligent in placing its wires so near the place that without much
difficulty or exertion, a person by stretching his hand out could touch them. A boy
named Astudillo, placing one foot on a projection, reached out and actually
grasped the electric wire and was electrocuted. The person electrocuted in said
case was a boy who was in no position to realize the danger. In the present case,
however, the wires were well high over the street where there was no possible
danger to pedestrians. The only possible danger was to persons standing on the
“media agua”, but a “media agua” can hardly be considered a public place where
persons usually gather. Moreover, a person standing on the “media agua” could
not have reached the wires with his hands alone. It was necessary as was done by
Magno to hold something long enough to reach the wire. Furthermore, Magno was
not a boy or a person immature but the father of a family, supposedly a tinsmith
trained and experienced in the repair of galvanized iron roofs and “media agua”.
Moreover, in that very case of Astudillo vs. Manila Electric Co., supra, the court
said that although it is a well- established rule that the liability of electric
companies for damages or personal injuries is governed by the rules of
negligence, nevertheless such companies are not insurers of the safety of the
public.
But even assuming for a moment that under the facts of the present case
the Defendantelectric company could be considered negligent in installing its
electric wires so close to the house and “media agua” in question, and in failing
to properly insulate those wires (although according to the unrefuted claim of
said company it was impossible to make the insulation of that kind of wire),
nevertheless to hold the Defendant liable in damages for the death of Magno,
such supposed negligence of the company must have been the proximate and
principal cause of the accident, because if the act of Magno in turning around and
swinging the galvanized iron sheet with his hands was the proximate and principal
cause of the electrocution, then his heirs may not recover. Such was the holding
of this Court in the case of Taylor vs. Manila Electric Railroad and Light Company,
16 Phil., 8. In that case, the electric company was found negligent in leaving
scattered on its premises fulminating caps which Taylor, a 15- year old boy found
and carried home. In the course of experimenting with said fulminating caps, he
opened one of them, held it out with his hands while another boy applied a
lighted match to it, causing it to explode and injure one of his eyes eventually
causing blindness in said eye. Said this Tribunal in denying recovery for the injury:
“ , so that while it may be true that these injuries would not have been incurred
but for the negligent act of the Defendant in leaving the caps exposed on its
premises, neverthelessPlaintiff’s own act was the proximate and principal cause
of the accident which inflicted the injury.”
To us it is clear that the principal and proximate cause of the electrocution was
not the electric wire, evidently a remote cause, but rather the reckless and
negligent act of Magno in turning around and swinging the galvanized iron sheet
without taking any precaution, such as looking back toward the street and at the
wire to avoid its contacting said iron sheet, considering the latter’s length of 6
feet. For a better understanding of the rule on remote and proximate cause with
respect to injuries, we find the following citation helpful:
“A prior and remote cause cannot be made the basis of an action if such remote
cause did nothing more than furnish the condition or give rise to the occasion by
which the injury was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated, and efficient cause
of the injury, even though such injury would not have happened but for such
condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the
circumstances which result in injury because of the prior defective condition,
such subsequent act or condition is the proximate cause.” (45 C.J. pp. 931-332.).
We realize that the stringing of wires of such high voltage (3,600 volts),
uninsulated and so close to houses is a constant source of danger, even death,
especially to persons who having occasion to be near said wires, do not adopt the
necessary precautions. But may be, the City of Manila authorities and the electric
company could get together and devise means of minimizing this danger to the
public. Just as the establishment of pedestrian lanes in city thoroughfares may
greatly minimize danger to pedestrians because drivers of motor vehicles may
expect danger and slow down or even stop and take other necessary precaution
upon approaching said lanes, so, a similar way may possibly be found. Since these
high voltage wires cannot be properly insulated and at reasonable cost, they
might perhaps be strung only up to the outskirts of the city where there are few
houses and few pedestrians and there step-down to a voltage where the wires
carrying the same to the city could be properly insulated for the better protection
of the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is
hereby reversed and the complaint filed against the Company is hereby dismissed.
No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., and Endencia, JJ., concur.
 EN BANC
G.R. No. L-9308 December 23, 1914

JUAN BERNARDO, plaintiff-appellant,

vs.
M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant.

No appearance for appellee.

MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the city of
Manila dismissing the complaint on the merits filed in an action to recover
damages for injuries sustained by plaintiff's automobile by reason of defendant's
negligence in causing a collision between his automobile and that of plaintiff. The
court in its judgment also dismissed a cross-complaint filed by the defendant,
praying for damages against the plaintiff on the ground that the injuries sustained
by the defendant's automobile in the collision referred to, as well as those to
plaintiff's machine, were caused by the negligence of the plaintiff in handling his
automobile.
The court found upon the evidence that both the plaintiff and the defendant were
negligent in handling their automobiles and that said negligence was of such a
character and extent on the part of both as to prevent either from
recovering.1awphil.net
Upon the facts, as they appear of record, the judgment must be affirmed, as the
evidence clearly supports the decision of the trial court. The law applicable to
the facts also requires an affirmance of the judgment appealed from. Where the
plaintiff in a negligence action, by his own carelessness contributes to the
principal occurrence, that is, to the accident, as one of the determining causes
thereof, he cannot recover. This is equally true of the defendant; and as both of
them, by their negligent acts, contributed to the determining cause of the
accident, neither can recover.
The judgment appealed from is affirmed, with costs against the appellant.itc-alf
Arellano, C.J., Torres, Johnson, Carson, Trent and Araullo, JJ., concur.
 EN BANC
G.R. No. L-30741 January 30, 1930
TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-appellants,
vs.
J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT, LTD., defendants-
appellee.
Kapunan and Kapunan for appellants.
Camus and Delgado for appellees.
MALCOLM, J.:
The parents of the five-year old child, Purificacion Bernal, appeal from a
judgment of the Court of First Instance of Leyte, which denied them P15,000
damages from J.V. House and the Tacloban Electric & Ice Plant, Ltd., for the
death of the child as a consequence of burns alleged to have been caused by the
fault and negligence of the defendants.
The salient facts as found by the trial judge are the following:
On the evening of April 10, 1925, the procession of Holy Friday was held in
Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came
from another municipality to attend the religious celebration. After the
procession was over, the woman and her daughter, accompanied by two other
persons by the names of Fausto and Elias, passed along a public street named
Gran Capitan. The little girl was allowed to get a short distance in advance of her
mother and her friends. When in front of the offices of the Tacloban Electric &
Ice Plant, Ltd., and automobile appeared from the opposite direction which so
frightened the child that she turned to run, with the result that she fell into the
street gutter. At that time there was hot water in this gutter or ditch coming from
the Electric Ice Plant of J.V. House. When the mother and her companions
reached the child, they found her face downward in the hot water. Her clothes
were immediately removed and, then covered with a garment, the girl was taken
to the provincial hospital. There she was attended by the resident physician, Dr.
Victoriano A. Benitez. Despite his efforts, the child died that same night at 11:40
o'clock.
Dr. Benitez, who, of course, was in a better position than any one to know the
cause of the death, and who had no reason to depart from the true facts,
certified that the cause of death was "Burns, 3rd Degree, whole Body", and that
the contributory causes were "Congestion of the Brain and visceras of the chest &
abdomen". The same physician in his general record in the Leyte Hospital for this
patient, under diagnosis in full, stated: "Burned 3rd Degree, whole body". The
treatment record of the attending nurse was much to the same effect.
The defense was that the hot water was permitted to flow down the side of the
street Gran Captain with the knowledge and consent of the authorities; that the
cause of death was other than the hot water; and that in the death the plaintiffs
contributed by their own fault and negligence. The trial judge, however, after
examination of the evidence presented by the defendants, failed to sustain their
theory of the case, except as to the last mentioned special defense. We are
shown no good reason for the departing from the conclusion of the trial judge to
the effect that the sudden death of the child Purification Bernal was due
principally to the nervous shock and organic calefaction produced by the
extensive burns from the hot water. "The danger from burns is proportional rather
to the extent of surface involved than to the depth of the burn". (Wharton &
Stille's Medical Jurisprudence, vol. 3, p. 263). The same authority continues.
"Burns of the first degree, covering two-thirds of the body surface, are rarely
recovered from. . . . Children seem especially susceptible to the effect of burns."
(Pp. 263, 264).
Although the trial judge made the findings of fact hereinbefore outlined, he
nevertheless was led to order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from this point that a majority of
the court depart from the stand taken by the trial judge. The mother and her
child had a perfect right to be on the principal street of Tacloban, Leyte, on the
evening when the religious procession was held. There was nothing abnormal in
allowing the child to run along a few paces in advance of the mother. No one
could foresee the coincidence of an automobile appearing and of a frightened
child running and falling into a ditch filled with hot water. The doctrines
announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co.
([1907], 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be
enforced. The contributory negligence of the child and her mother, if any, does
not operate as a bar to recovery, but in its strictest sense could only result in
reduction of the damages.
Having reached the conclusion that liability exists, we next turn to discover who
can recover damages for the obligation, and against whom the action will lie. The
plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of
Purificacion Bernal and the former was the natural father, who had never legally
recognized his child. The daughter lived with the mother, and presumably was
supported by her. Under these facts, recovery should be permitted the mother
but not the father. As to the defendants, they are J.V. House and the Tacloban
Electric & Ice Plant, Ltd., J.V. House was granted a franchise by Act No. 2700 of
the Philippine Legislature approved on March 9, 1917. He only transferred this
franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926,
that is, nearly a year after the death of the child Purificacion Bernal. Under these
facts, J.V. House is solely responsible.
Counsel for appellees point out that there is no satisfactory proof to establish the
pecuniary loss. That is true. But in cases of this character the law presumes a loss
because of the impossibility of exact computation. There is not enough money in
the entire world to compensate a mother for the death of her child. In criminal
cases, the rule has been to allow as a matter of course P1,000 as indemnity to the
heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil.,
821), which in many respects is on all fours with the case at bar, the same
amount of P1,000 was allowed the mother of the dead boy eight or nine years of
age. The same criterion will have to be followed in this instance.
The result will, therefore, be to accept the findings of fact made by the trial
judge; to set aside the legal deductions flowing from those facts; to hold that the
death of the child Purificacion Bernal was the result of fault and negligence in
permitting hot water to flow through the public streets, there to endanger the
lives of passers-by who were unfortunately enough to fall into it; to rule that the
proper plaintiff is the mother Fortunata Enverso and not the natural father Tomas
Bernal; to likewise rule that the person responsible to the plaintiff is J.V. House
and not the entity the Tacloban Electric & Ice Plant, Ltd.; and finally to adjudge
that the amount of recovery, without the tendering of special proof, should be
fixed, as in other cases, at P1,000.
Concordant with the pronouncements just made, the judgment appealed from
shall in part be reversed and in the court of origin another judgment shall issue in
favor of Fortunata Enverso and against J.V. House for the amount of P1,000, and
for the costs of both instances.
Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
Johnson, J., dissents.

Separate Opinions
ROMUALDEZ, J., dissenting:
Even taking the finding that the defendant by its negligence helped to bring about
the accident which resulted in the death of the child Purificacion Bernal, as not
subject to question now, not being a matter discussed in this instance, I
nevertheless deem the trial court's other finding sufficiently proved in the record,
to the effect that the plaintiff, by negligence, contributed to that most
regrettable result.
With due respect to the majority opinion, I believe the judgment appealed from
should be affirmed.
 SECOND DIVISION
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.
REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court
of First Instance of Negros Occidental 1 by private respondent spouses against
petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for
the injuries they sustained in the evening of July 30, 1968 when their jeep ran
over a mound of earth and fell into an open trench, an excavation allegedly
undertaken by PLDT for the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban failed to notice the open
trench which was left uncovered because of the creeping darkness and the lack of
any warning light or signs. As a result of the accident, respondent Gloria Esteban
allegedly sustained injuries on her arms, legs and face, leaving a permanent scar
on her cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the injuries sustained
by respondent spouses were the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R. Barte and Company (Barte, for
short), an independent contractor which undertook the construction of the
manhole and the conduit system. 3 Accordingly, PLDT filed a third-party complaint
against Barte alleging that, under the terms of their agreement, PLDT should in
no manner be answerable for any accident or injuries arising from the negligence
or carelessness of Barte or any of its employees. 4 In answer thereto, Barte
claimed that it was not aware nor was it notified of the accident involving
respondent spouses and that it had complied with the terms of its contract with
PLDT by installing the necessary and appropriate standard signs in the vicinity of
the work site, with barricades at both ends of the excavation and with red lights
at night along the excavated area to warn the traveling public of the presence of
excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private
respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant
Philippine Long Distance Telephone Company is hereby ordered
(A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as
moral damages and P5,000.00 exemplary damages; to plaintiff
Antonio Esteban the sum of P2,000.00 as moral damages and
P500.00 as exemplary damages, with legal rate of interest from
the date of the filing of the complaint until fully paid. The
defendant is hereby ordered to pay the plaintiff the sum of
P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse
whatever amount the defendant-third party plaintiff has paid to
the plaintiff. With costs against the defendant. 6
From this decision both PLDT and private respondents appealed, the latter
appealing only as to the amount of damages. Third-party defendant Barte did not
appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals
rendered a decision in said appealed case, with Justice Corazon Juliano Agrava
as ponente, reversing the decision of the lower court and dismissing the complaint
of respondent spouses. It held that respondent Esteban spouses were negligent
and consequently absolved petitioner PLDT from the claim for damages. 7 A copy
of this decision was received by private respondents on October 10, 1979. 8 On
October 25, 1979, said respondents filed a motion for reconsideration dated
October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court
of Appeals denied said motion for reconsideration. 10 This resolution was received
by respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals received private respondents'
motion for leave of court to file a second motion for reconsideration, dated
February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution
likewise penned by Justice Agrava, allowed respondents to file a second motion
for reconsideration, within ten (10) days from notice thereof. 13 Said resolution
was received by private respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for reconsideration on March 7,
1980.14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss
said second motion for reconsideration. 15 The Court of Appeals, in view of the
divergent opinions on the resolution of the second motion for reconsideration,
designated two additional justices to form a division of five. 16 On September 3,
1980, said division of five promulgated its resolution, penned by Justice Mariano
A. Zosa, setting aside the decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in toto the decision of the lower
court. 17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for
reconsideration of the resolution of September 3, 1980, contending that the
second motion for reconsideration of private respondent spouses was filed out of
time and that the decision of September 25, 1979 penned by Justice Agrava was
already final. It further submitted therein that the relationship of Barte and
petitioner PLDT should be viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not liable for the acts of an
independent contractor. 18 On May 11, 1981, respondent Court of Appeals
promulgated its resolution denying said motion to set aside and/or for
reconsideration and affirming in toto the decision of the lower court dated
October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the
following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second
motion for reconsideration on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the resolution of the Special Ninth
Division, dated January 24, 1980, are already final, and on the additional ground
that said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and
in misapplying the independent contractor rule in holding PLDT liable to
respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as
shown by the records and admitted by both parties, may be graphically presented
as follows:
(a) September 25, 1979, a decision was rendered by the Court of
Appeals with Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was received by
private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by
private respondents;
(d) January 24, 1980, a resolution was issued denying said
motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was
received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion
for reconsideration was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed
by private respondents;
(h) March 11, 1980, a resolution was issued allowing respondents
to file a second motion for reconsideration within ten (10) days
from receipt; and
(i) September 3, 1980, a resolution was issued, penned by
Justice Zosa, reversing the original decision dated September
25, 1979 and setting aside the resolution dated January 24,
1980.
From the foregoing chronology, we are convinced that both the motion for leave
to file a second motion for reconsideration and, consequently, said second motion
for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the
time, provided that a second motion for reconsideration may be presented within
fifteen (15) days from notice of the order or judgment deducting the time in
which the first motion has been pending. 20 Private respondents having filed their
first motion for reconsideration on the last day of the reglementary period of
fifteen (15) days within which to do so, they had only one (1) day from receipt of
the order denying said motion to file, with leave of court, a second motion for
reconsideration. 21 In the present case, after their receipt on February 22, 1980 of
the resolution denying their first motion for reconsideration, private respondents
had two remedial options. On February 23, 1980, the remaining one (1) day of the
aforesaid reglementary period, they could have filed a motion for leave of court
to file a second motion for reconsideration, conceivably with a prayer for the
extension of the period within which to do so. On the other hand, they could have
appealed through a petition for review on certiorari to this Court within fifteen
(15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a
second motion 'for reconsideration on February 29, 1980, and said second motion
for reconsideration on March 7, 1980, both of which motions were by then time-
barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen
(15) day period, the running of which was suspended during the pendency of the
first motion for reconsideration, the Court of Appeals could no longer validly take
further proceedings on the merits of the case, much less to alter, modify or
reconsider its aforesaid decision and/or resolution. The filing of the motion for
leave to file a second motion for reconsideration by herein respondents on
February 29, 1980 and the subsequent filing of the motion itself on March 7, 1980,
after the expiration of the reglementary period to file the same, produced no
legal effects. Only a motion for re-hearing or reconsideration filed in time shall
stay the final order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11,
1980 granting private respondents' aforesaid motion for leave and, giving them an
extension of ten (10) days to file a second motion for reconsideration, is null and
void. The period for filing a second motion for reconsideration had already
expired when private respondents sought leave to file the same, and respondent
court no longer had the power to entertain or grant the said motion. The
aforesaid extension of ten (10) days for private respondents to file their second
motion for reconsideration was of no legal consequence since it was given when
there was no more period to extend. It is an elementary rule that an application
for extension of time must be filed prior to the expiration of the period sought to
be extended. 24 Necessarily, the discretion of respondent court to grant said
extension for filing a second motion for reconsideration is conditioned upon the
timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated
September 25, 1979, became final and executory on March 9, 1980. The
subsequent resolutions of respondent court, dated March 11, 1980 and September
3, 1980, allowing private respondents to file a second motion for reconsideration
and reversing the original decision are null and void and cannot disturb the
finality of the judgment nor restore jurisdiction to respondent court. This is but in
line with the accepted rule that once a decision has become final and executory it
is removed from the power and jurisdiction of the court which rendered it to
further alter or amend, much less revoke it. 25 The decision rendered anew is null
and void. 26 The court's inherent power to correct its own errors should be
exercised before the finality of the decision or order sought to be corrected,
otherwise litigation will be endless and no question could be considered finally
settled. Although the granting or denial of a motion for reconsideration involves
the exercise of discretion, 27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice, reason
and equity. 28
Prescinding from the aforesaid procedural lapses into the substantive merits of
the case, we find no error in the findings of the respondent court in its original
decision that the accident which befell private respondents was due to the lack of
diligence of respondent Antonio Esteban and was not imputable to negligent
omission on the part of petitioner PLDT. Such findings were reached after an
exhaustive assessment and evaluation of the evidence on record, as evidenced by
the respondent court's resolution of January 24, 1980 which we quote with
approval:
First. Plaintiff's jeep was running along the inside lane of Lacson
Street. If it had remained on that inside lane, it would not have
hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT
MOUND was hit by the jeep swerving from the left that is,
swerving from the inside lane. What caused the swerving is not
disclosed; but, as the cause of the accident, defendant cannot
be made liable for the damages suffered by plaintiffs. The
accident was not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the inside lane.
That may explain plaintiff-husband's insistence that he did not
see the ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it
swerved to hit the ACCIDENT MOUND could have been
corroborated by a picture showing Lacson Street to the south of
the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had
already been covered except the 3 or 4 meters where the
ACCIDENT MOUND was located. Exhibit B-1 shows that the
ditches on Lacson Street north of the ACCIDENT MOUND had
already been covered, but not in such a way as to allow the
outer lane to be freely and conveniently passable to vehicles.
The situation could have been worse to the south of the
ACCIDENT MOUND for which reason no picture of the ACCIDENT
MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour
as plaintiff-husband claimed. At that speed, he could have
braked the vehicle the moment it struck the ACCIDENT MOUND.
The jeep would not have climbed the ACCIDENT MOUND several
feet as indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiff's would not have been thrown
against the windshield and they would not have suffered their
injuries.
Fourth. If the accident did not happen because the jeep was
running quite fast on the inside lane and for some reason or
other it had to swerve suddenly to the right and had to climb
over the ACCIDENT MOUND, then plaintiff-husband had not
exercised the diligence of a good father of a family to avoid the
accident. With the drizzle, he should not have run on dim lights,
but should have put on his regular lights which should have
made him see the ACCIDENT MOUND in time. If he was running
on the outside lane at 25 kilometers an hour, even on dim
lights, his failure to see the ACCIDENT MOUND in time to brake
the car was negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet
wide. If he did not see the ACCIDENT MOUND in time, he would
not have seen any warning sign either. He knew of the existence
and location of the ACCIDENT MOUND, having seen it many
previous times. With ordinary precaution, he should have driven
his jeep on the night of the accident so as to avoid hitting the
ACCIDENT MOUND. 29
The above findings clearly show that the negligence of respondent Antonio
Esteban was not only contributory to his injuries and those of his wife but goes to
the very cause of the occurrence of the accident, as one of its determining
factors, and thereby precludes their right to recover damages. 30 The perils of the
road were known to, hence appreciated and assumed by, private respondents. By
exercising reasonable care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even assuming arguendothat there
was some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident;
the only purpose of said signs was to inform and warn the public of the presence
of excavations on the site. The private respondents already knew of the presence
of said excavations. It was not the lack of knowledge of these excavations which
caused the jeep of respondents to fall into the excavation but the unexplained
sudden swerving of the jeep from the inside lane towards the accident mound. As
opined in some quarters, the omission to perform a duty, such as the placing of
warning signs on the site of the excavation, constitutes the proximate cause only
when the doing of the said omitted act would have prevented the injury. 31 It is
basic that private respondents cannot charge PLDT for their injuries where their
own failure to exercise due and reasonable care was the cause thereof. It is both
a societal norm and necessity that one should exercise a reasonable degree of
caution for his own protection. Furthermore, respondent Antonio Esteban had the
last clear chance or opportunity to avoid the accident, notwithstanding the
negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had knowledge of the presence and
location of the excavations there. It was his negligence that exposed him and his
wife to danger, hence he is solely responsible for the consequences of his
imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its
original decision that there was insufficient evidence to prove any negligence on
the part of PLDT. We have for consideration only the self-serving testimony of
respondent Antonio Esteban and the unverified photograph of merely a portion of
the scene of the accident. The absence of a police report of the incident and the
non-submission of a medical report from the hospital where private respondents
were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of
January 24, 1980 —
(a) There was no third party eyewitness of the accident. As to
how the accident occurred, the Court can only rely on the
testimonial evidence of plaintiffs themselves, and such evidence
should be very carefully evaluated, with defendant, as the party
being charged, being given the benefit of any doubt. Definitely
without ascribing the same motivation to plaintiffs, another
person could have deliberately engineered a similar accident in
the hope and expectation that the Court can grant him
substantial moral and exemplary damages from the big
corporation that defendant is. The statement is made only to
 stress the disadvantageous position of defendant which would 21 In the computation of the reglementary period, especially if
have extreme difficulty in contesting such person's claim. If it is interrupted by the filing of a pleading, the date when the
there were no witness or record available from the police pleading is filed and the date of receipt of the judgment or
department of Bacolod, defendant would not be able to order thereon are to be excluded (Lloren, etc. vs. De Veyra,
determine for itself which of the conflicting testimonies of etc., et al., 4 SCRA 637 [1962]; De las Alas, et al. vs. Court of
plaintiffs is correct as to the report or non-report of the Appeals, et al., 83 SCRA 200 [1978]).
accident to the police department. 32 22 Sec. 1, Rule 45, Rules of Court; Serrano vs. Court of Appeals,
A person claiming damages for the negligence of another has the burden of et al., 139 SCRA 179 (1985).
proving the existence of such fault or negligence causative thereof. The facts 23 Sec. 3, Rule 52, Rules of Court.
constitutive of negligence must be affirmatively established by competent 24 Galima, et al. vs. Court of Appeals, et al., 16 SCRA 140
evidence. 33 Whosoever relies on negligence for his cause of action has the burden (1966); Tuazon vs. Court of Appeals, et al., 43 SCRA 664 (1972),
in the first instance of proving the existence of the same if contested, otherwise 25 Comia, et al. vs. Nicolas, etc., et al., 29 SCRA 492 (l969).
his action must fail. 26 Heirs of Patriaca, et al. vs. Court of Appeals, et al., 124 SCRA
410 (1983).
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 27 Lucero vs. Dacayo, etc., et al., 22 SCRA 1004 (1963).
1980 and September 3,1980, are hereby SET ASIDE. Its original decision, 28 Gardner, et al. vs. Court of Appeals. et al., 131 SCRA 585
promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED. (1984).
SO ORDERED. 29 Rollo, 97-98.
30 Rakes vs. Atlantic Gulf & Pacific Co., 7 Phil. 359 (1907).
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur.
31 Sangco, Torts & Damages, 1978 Rev. Ed., 150.
32 Rollo, 95.
Footnotes
33 Barcelo, etc. vs. Manila Electric Railroad & Light Co., 29
1 Civil Case No. 8681, Judge Ernesto Tengco, presiding.
Phil.351 (1951); Sec. 1, Rule 131, Rules of Court; 1 Jones on
2 Rollo, 49-51.
Evidence, 5th Ed., 370.
3 Ibid., 52-55.
4 Ibid., 56-58.
5 Ibid., 59-61.
6 Ibid., 70.
7 CA-G.R. No. 57352-R, Justices Jose B. Jimenez and Benjamin
K. Gorospe concurred. Rollo, 72-79.
8 Rollo, 21,156.
9 Ibid., 80-85, 156.
10 Ibid., 93-98.
11 Ibid., 21,158.
12 Rollo, CA-G.R. No. 57352-R, 141-143.
13 Ibid., Id., 155-156.
14 Ibid., Id., 144-153.
15 Ibid., Id., 168-171.
16 Ibid., Id., 185-196.
17 Rollo, 111-118.
18 Ibid., 119-120.
19 Ibid., 137-138.
20 The rule has since been modified by Sec. 11, B.P. 129,
effective August 14,1981, which provided that in the then
Intermediate Appellate Court a second motion for
reconsideration would be allowed only if the first motion for
reconsideration resulted in the reversal or substantial
modification of the original decision or final resolution.
Thereafter, effective July 28,1986, Sec. 11 of B.P. 129 was
amended by Sec. 6 of Executive Order No. 33 providing that in
the present Court of Appeals no second motion for
reconsideration from the same party shall be entertained.
 FIRST DIVISION
G.R. No. L-40452 October 12, 1989
GREGORIO GENOBIAGON, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Mario D. Ortiz for petitioner.
GRIÑO-AQUINO, J.:
This is a petition for review of the Court of Appeals' decision in CA-G.R. No.
09949-CR, dated October 10, 1974, affirming the conviction of the petitioner of
the crime of homicide thru reckless imprudence.
As found by the Court of Appeals, the facts of this case are:
On December 31,1959, at about 7:30 o'clock in the evening, a
rig driven by appellant bumped an old woman who was crossing
T. Padilla St., Cebu City, at the right side of T. Padilla Market.
The appellant's rig was following another at a distance of two
meters. The old woman started to cross when the first rig was
approaching her, but as appellant's vehicle was going so fast not
only because of the steep down-grade of the road, but also
because he was trying to overtake the rig ahead of him, the
appellant's rig bumped the old woman, who as a consequence,
fell at the middle of the road. The appellant continued to drive
on, but a by-stander, one Vicente Mangyao, who just closed his
store in market in order to celebrate the coming of the New
Year, and who saw the incident right before him, shouted at the
appellant to stop. He ran after appellant when the latter
refused to stop. Overtaking the appellant, Mangyao asked him
why he bumped the old woman and his answer was, 'it was the
old woman that bumped him.' The appellant went back to the
place where the old woman was struck by his rig. The old
woman was unconscious, and the food and viands she was
carrying were scattered on her body. The victim was then
loaded in a jeep and brought to the hospital where she died
three hours later (Exh. C). The findings after an autopsy are as
follows:
Contusion with Hematoma Left, Frontal and
Occipito-Parietal Regionas Fracture Occipito-
Parietal Bone Cerebral Hemorrhage.
The deceased was an eighty-one-year old woman named Rita B.
Cabrera. (pp. 31-32, Rollo.)
Petitioner was charged with homicide thru reckless imprudence in the Court of
First Instance of Cebu (Crim. Case No. V7855). The trial court found petitioner
guilty of the felony charged and sentenced him to "suffer an indeterminate
penalty of three (3) months of arresto mayor as minimum to one (1) year, one (1)
month and eleven (11) days of prision correccional as maximum, to indemnify the
heirs of Rita Banzon Cabrera the sum of P6,000 with subsidiary imprisonment in
case of insolvency, not to exceed 1/3 of the principal penalty and to pay the
costs" (p. 3, Appellant's Brief, p. 56, Rollo).
The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on
October 10,1974,conviction of the accused but increased his civil liability to
P12,000. The dispositive portion of its decision reads:
WHEREFORE, finding no error in the judgment appealed from
except in the amount of indemnity to be paid to the heirs of the
deceased, Rita B. Cabrera, which is the sum of P6,000.00 with
subsidiary imprisonment in case of insolvency which should be
raised to P12,000.00 (People vs. Pantoja, G.R. No. L-18793,
October 11, 1968, 25 SCRA 468) but without subsidiary
imprisonment in case of insolvency, the same should be, as it is
hereby affirmed in all other respects with costs. (P. 37, Rollo.)
After his motion for reconsideration of the Court of Appeals' decision was denied,
he filed a petition for review in this Court, alleging that the Court of Appeals
erred:
1. in not finding that the reckless negligence of the victim was
the proximate cause of the accident which led to her death;
2. in not acquitting the petitioner on the ground of reasonable
doubt; and
3. in unjustly increasing the civil liability of the petitioner from
P6,000.00 to P12,000.00, although the circumstances of the
victim and the accused (petitioner) do not warrant such
increase.
It is quite evident that all the issues raised in the petition for review are factual.
Well-entrenched in our jurisprudence is the rule that findings of fact of the trial
court and the Court of Appeals are binding upon us (Bernardo vs. Bernardo, 101
SCRA 351; Vda. De Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).
The alleged contributory negligence of the victim, if any, does not exonerate the
accused. "The defense of contributory negligence does not apply in criminal cases
committed through reckless imprudence, since one cannot allege the negligence
of another to evade the effects of his own negligence (People vs. Orbeta, CA-G.R.
No. 321, March 29,1947)." (People vs. Quinones, 44 O.G. 1520).
The petitioner's contention that the Court of Appeals unjustly increased his civil
liability to P12,000, is devoid of merit. The prevailing jurisprudence in fact
provides that indemnity for death in homicide or murder is P30,000 (People vs. De
la Fuente, [1983]126 SCRA 518; People vs. Centeno, 130 SCRA 198). Accordingly,
the civil liability of the petitioner is increased to P30,000.
WHEREFORE, the appealed decision is affirmed with modification as to the civil
liability of the petitioner which is hereby increased to P30,000. Costs against
petitioner.
SO ORDERED.
Narvasa, Cruz and Medialdea, JJ., concur.
Gancayco, J., took no part.
 EN BANC
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers
in the employment of the defendant, was at work transporting iron rails from a
barge in the harbor to the company's yard near the malecon in Manila. Plaintiff
claims that but one hand car was used in this work. The defendant has proved
that there were two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay
upon two crosspieces or sills secured to the cars, but without side pieces or
guards to prevent them from slipping off. According to the testimony of the
plaintiff, the men were either in the rear of the car or at its sides. According to
that defendant, some of them were also in front, hauling by a rope. At a certain
spot at or near the water's edge the track sagged, the tie broke, the car either
canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which
was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened
through the negligence of the defendant. The detailed description by the
defendant's witnesses of the construction and quality of the track proves that if
was up to the general stranded of tramways of that character, the foundation
consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8
to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the
across the stringers the parallel with the blocks were the ties to which the tracks
were fastened. After the road reached the water's edge, the blocks or crosspieces
were replaced with pilling, capped by timbers extending from one side to the
other. The tracks were each about 2 feet wide and the two inside rails of the
parallel tracks about 18 inches apart. It was admitted that there were no side
pieces or guards on the car; that where no ends of the rails of the track met each
other and also where the stringers joined, there were no fish plates. the
defendant has not effectually overcome the plaintiff's proof that the joints
between the rails were immediately above the joints between the underlying
stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the
immediate occasion of the accident, is not clear in the evidence, but is found by
the trial court and is admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the water of the bay
raised by a recent typhoon. The superintendent of the company attributed it to
the giving way of the block laid in the sand. No effort was made to repair the
injury at the time of the occurrence. According to plaintiffs witnesses, a
depression of the track, varying from one half inch to one inch and a half, was
therafter apparent to the eye, and a fellow workman of the plaintiff swears that
the day before the accident he called the attention of McKenna, the foreman, to
it and asked by simply straightening out the crosspiece, resetting the block under
the stringer and renewing the tie, but otherwise leaving the very same timbers as
before. It has not proven that the company inspected the track after the typhoon
or had any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a
breach of duty on its part in failing either to properly secure the load on iron to
vehicles transporting it, or to skillfully build the tramway or to maintain it in
proper condition, or to vigilantly inspect and repair the roadway as soon as the
depression in it became visible. It is upon the failure of the defendant to repair
the weakened track, after notice of its condition, that the judge below based his
judgment.
This case presents many important matters for our decision, and first among them
is the standard of duty which we shall establish in our jurisprudence on the part
of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to
enact designed to put these relations on a fair basis in the form of compensation
or liability laws or the institution of insurance. In the absence of special
legislation we find no difficulty in so applying the general principles of our law as
to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed
by the provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done
with malice would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing
any infraction of regulations, shall cause an injury which, had malice
intervened, would have constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the
faults of their servants and representatives is declared to be civil and subsidiary
in its character.
It is contented by the defendant, as its first defense to the action, that the
necessary conclusion from these collated laws is that the remedy for injuries
through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only subsidiarily
to him. According to this theory the plaintiff should have procured the arrest of
the representative of the company accountable for not repairing the tract, and on
his prosecution a suitable fine should have been imposed, payable primarily by
him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject.
Article 1093 of the Civil Code makes obligations arising from faults or negligence
not punished by the law, subject to the provisions of Chapter 11 of Title XVI.
Section 1902 of that chapter reads:
 A person who by an act or omission causes damage to another when
there is fault or negligence shall be obliged to repair the damage so
done.
SEC. 1903. The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for those
of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable
for the damages caused by their employees in the service of the
branches in which the latter may be employed or in the performance of
their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may be sufficient
to point out that nowhere in our general statutes is the employer penalized for
failure to provide or maintain safe appliances for his workmen. His obligation
therefore is one "not punished by the law " and falls under civil rather than
criminal jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of these scientific
codes, such as is proposed by the defendant, that would rob some of these
articles of effect, would shut out litigants their will from the civil courts, would
make the assertion of their rights dependent upon the selection for prosecution of
the proper criminal offender, and render recovery doubtful by reason of the strict
rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown
upon their meaning by the provisions of the Law of Criminal Procedure of Spain
(Ley de Enjuiciamiento Criminal), which, though n ever in actual force in these
Islands, was formerly given a suppletory or explanatory effect. Under article 111
of this law, both classes of action, civil and criminal, might be prosecuted jointly
or separately, but while the penal action was pending the civil was suspended.
According to article 112, the penal action once started, the civil remedy should
be sought therewith, unless it had been waived by the party injured or been
expressly reserved by him for civil proceedings for the future. If the civil action
alone was prosecuted, arising out of a crime that could be enforced by only on
private complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal Code on
the same subject.
An examination of this topic might be carried much further, but the citations of
these articles suffices to show that the civil liability was not intended to be
merged in the criminal nor even to be suspended thereby, except as expressly
provided by law. Where an individual is civilly liable for a negligent act or
omission, it is not required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be
regarded as subsidiary in respect of criminal actions against his employees only
while they are process of prosecution, or in so far as they determinate the
existence of the criminal act from which liability arises, and his obligation under
the civil law and its enforcement in the civil courts is not barred thereby unless
by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders
it unnecessary to finally determine here whether this subsidiary civil liability in
penal actions survived the laws that fully regulated it or has been abrogated by
the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of the
words of article 1093, "fault or negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It
has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the
law, the consequences of which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are applicable are understood to be
those and growing out of preexisting duties of the parties to one another. But
were relations already formed give rise to duties, whether springing from contract
or quasi contract, then breaches of those duties are subject to articles 1101,
1103, and 1104, of the same code. A typical application of the distinction may be
found in the consequences of a railway accident due to defective machinery
supplied by the employer. His liability to his employee would arise out of the
contract of employment, that to the passengers out of the contract for passage.
while that to that injured bystander would originate in the negligent act itself.
This distinction is thus clearly set forth by Manresa in his commentary on article
1093.
We are with reference to such obligations, that culpa, or negligence,
may be understood in two difference senses; either as culpa,
substantive and independent, which on account of its origin arises in an
obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation; or as
already existed, which can not be presumed to exist without the other,
and which increases the liability arising from the already exiting
obligation.
Of these two species of culpa the first one mentioned, existing by itself,
may be also considered as a real source of an independent obligation,
and, as chapter 2, title 16 of this book of the code is devoted to it, it is
logical to presume that the reference contained in article 1093 is limited
thereto and that it does not extend to those provisions relating to the
other species of culpa (negligence), the nature of which we will discuss
later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of
negligence may be somewhat inexactly described as contractual and extra-
contractual, the letter being the culpa aquiliana of the Roman law and not
entailing so strict an obligation as the former. This terminology is unreservedly
accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II,
No. 12), and the principle stated is supported be decisions of the supreme court
of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No.
151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for
hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of
January 30, 1900, throws uncertain light on the relation between master and
workman. Moved by the quick industrial development of their people, the courts
of France early applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon,
corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon
yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for
employment led to the discovery of a third basis for liability in an article of he
French Code making the possessor of any object answerable for damage done by
it while in his charge. Our law having no counterpart of this article, applicable to
every kind of object, we need consider neither the theory growing out of it nor
that of "professional risk" more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case
in the contractual obligation. This contractual obligation, implied from the
relation and perhaps so inherent in its nature to be invariable by the parties,
binds the employer to provide safe appliances for the use of the employee, thus
closely corresponding to English and American Law. On these principles it was the
duty of the defendant to build and to maintain its track in reasonably sound
condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could
not have occurred; consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a
risk incident to his employment and, as such, one assumed by him. It is evident
that this can not be the case if the occurrence was due to the failure to repair the
track or to duly inspect, it for the employee is not presumed to have stipulated
that the employer might neglect his legal duty. Nor may it be excused upon the
ground that the negligence leading to the accident was that of a fellow-servant of
the injured man. It is not apparent to us that the intervention of a third person
can relieve the defendant from the performance of its duty nor impose upon the
plaintiff the consequences of an act or omission not his own. Sua cuique culpa
nocet. This doctrine, known as "the fellow-servant, rule," we are not disposed to
introduce into our jurisprudence. Adopted in England by Lord Abinger in the case
of Prescottvs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been
effectually abrogated by "the Employers' Liability Acts" and the "Compensation
Law." The American States which applied it appear to be gradually getting rid of
it; for instance, the New York State legislature of 1906 did away with it in respect
to railroad companies, and had in hand a scheme for its total abolition. It has
never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858,
Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent
instances in Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its
judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the
plaintiff, contributing to the accident, to what extent it existed in fact and what
legal effect is to be given it. In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of
along the boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious or
a rival difficulty. There is nothing in the evidence to show that the plaintiff did or
could see the displaced timber underneath the sleeper. The claim that he must
have done so is a conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from the testimony.
While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this
job less than two days. A man may easily walk along a railway without perceiving
a displacement of the underlying timbers. The foreman testified that he knew the
state of the track on the day of the accident and that it was then in good
condition, and one Danridge, a witness for the defendant, working on the same
job, swore that he never noticed the depression in the track and never saw any
bad place in it. The sagging of the track this plaintiff did perceive, but that was
reported in his hearing to the foreman who neither promised nor refused to repair
it. His lack of caution in continuing at his work after noticing the slight depression
of the rail was not of so gross a nature as to constitute negligence, barring his
recovery under the severe American rule. On this point we accept the conclusion
of the trial judge who found as facts that "the plaintiff did not know the cause of
the one rail being lower than then other" and "it does not appear in this case that
the plaintiff knew before the accident occurred that the stringers and rails joined
in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be
binding upon us, because not "plainly and manifestly against the weight of
evidence," as those words of section 497, paragraph 3 of the Code of Civil
Procedure were interpreted by the Supreme Court of the United States in the De
la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment
below is not so specific. While the judge remarks that the evidence does not
justify the finding that the car was pulled by means of a rope attached to the
front end or to the rails upon it, and further that the circumstances in evidence
make it clear that the persons necessary to operate the car could not walk upon
the plank between the rails and that, therefore, it was necessary for the
employees moving it to get hold upon it as best they could, there is no specific
finding upon the instruction given by the defendant to its employees to walk only
upon the planks, nor upon the necessity of the plaintiff putting himself upon the
ties at the side in order to get hold upon the car. Therefore the findings of the
judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden
to proceed in this way, but were expressly directed by the foreman to do so, both
the officers of the company and three of the workmen testify that there was a
general prohibition frequently made known to all the gang against walking by the
side of the car, and the foreman swears that he repeated the prohibition before
the starting of this particular load. On this contradiction of proof we think that
the preponderance is in favor of the defendant's contention to the extent of the
general order being made known to the workmen. If so, the disobedience of the
plaintiff in placing himself in danger contributed in some degree to the injury as a
proximate, although not as its primary cause. This conclusion presents sharply the
question, What effect is to be given such an act of contributory negligence? Does
it defeat a recovery, according to the American rule, or is it to be taken only in
reduction of damages?
While a few of the American States have adopted to a greater or less extent the
doctrine of comparative negligence, allowing a recovery by a plaintiff whose own
act contributed to his injury, provided his negligence was slight as compared with
that of the defendant, and some others have accepted the theory of proportional
damages, reducing the award to a plaintiff in proportion to his responsibility for
the accident, yet the overwhelming weight of adjudication establishes the
principle in American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately contributing to
his injury, bars his recovery. (English and American Encyclopedia of law, Titles
"Comparative Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the
Supreme Court of the United States thus authoritatively states the present rule of
law:
Although the defendant's' negligence may have been the primary cause of
the injury complained of, yet an action for such injury can not be
maintained if the proximate and immediate cause of the injury can be
traced to the want of ordinary care and caution in the person injured;
subject to this qualification, which has grown up in recent years (having
been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the action if
it be shown that the defendant might, by the exercise of reasonable care
and prudence, have avoided the consequences of the injured party's
negligence.
There are may cases in the supreme court of Spain in which the defendant was
exonerated, but when analyzed they prove to have been decided either upon the
point that he was not negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due to casus fortuitus.
Of the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal,
No. 70), in which a railway employee, standing on a car, was thrown therefrom
and killed by the shock following the backing up of the engine. It was held that
the management of the train and engine being in conformity with proper rules of
the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February,
and the 7th of March, 1902, stated in Alcubilla's Index of that year; and of the
third class the decision of the 4th of June, 1888 (64Jurisprudencia Civil, No. 1), in
which the breaking down of plaintiff's dam by the logs of the defendant impelled
against it by the Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on
two bases, one, that the defendant was not negligent, because expressly relieved
by royal order from the common obligation imposed by the police law of
maintaining a guard at the road crossing; the other, because the act of the
deceased in driving over level ground with unobstructed view in front of a train
running at speed, with the engine whistle blowing was the determining cause of
the accident. It is plain that the train was doing nothing but what it had a right to
do and that the only fault lay with the injured man. His negligence was not
contributory, it was sole, and was of such an efficient nature that without it no
catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the
plaintiff sustaining damages was not free from contributory negligence; for
instance, the decision of the 14th of December, 1894 (76Jurisprudencia Civil, No.
134), in which the owner of a building was held liable for not furnishing
protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff
which contributed to his injury as one of its causes, though not the principal one,
and we are left to seek the theory of the civil law in the practice of other
countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held
that the carelessness of the victim did not civilly relieve the person without
whose fault the accident could not have happened, but that the contributory
negligence of the injured man had the effect only of reducing the damages. The
same principle was applied in the case of Recullet, November 10, 1888. and that
of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite
Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail,
363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a
practice in accord with that of France is laid down in many cases collected in the
annotations to article 1053 of the code edited by Beauchamps, 1904. One of these
is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90,
in which the court of Kings bench, otherwise known as the court of appeals, the
highest authority in the Dominion of Canada on points of French law, held that
contributory negligence did not exonerate the defendants whose fault had been
the immediate cause of the accident, but entitled him to a reduction of damages.
Other similar cases in the provincial courts have been overruled by appellate
tribunals made up of common law judges drawn from other provinces, who have
preferred to impose uniformally throughout the Dominion the English theory of
contributory negligence. Such decisions throw no light upon the doctrines of the
civil law. Elsewhere we find this practice embodied in legislation; for instance,
section 2 of article 2398 of the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the
person injured or in the part of some one else, the indemnification shall
be reduced in the first case, and in the second case it shall be
appropriated in proportion to such fault or negligence as provided in
paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly
changeable with the accident shall stand his damages in proportion to his fault,
but when that proportion is incapable of ascertainment, he shall share the
liability equally with the person principally responsible. The principle of
proportional damages appears to be also adopted in article 51 of the Swiss Code.
Even in the United States in admirality jurisdictions, whose principles are derived
from the civil law, common fault in cases of collision have been disposed of not
on the ground of contradictor negligence, but on that of equal loss, the fault of
the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386;
97.)
The damage of both being added together and the sum equally divided, a decree
is entered in favor of the vessel sustaining the greater loss against the other for
the excess of her damages over one-half of the aggregate sum. (The Manitoba,
122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The
Spanish Code of Commerce, article 827, makes each vessel for its own damage
when both are the fault; this provision restricted to a single class of the maritime
accidents, falls for short of a recognition of the principle of contributory
negligence as understood in American Law, with which, indeed, it has little in
common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above
mentioned the civil action of the owner against the person liable for the damage
is reserved, as well as the criminal liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of
the faults of the parties, appears to have grown out the original method of trial
by jury, which rendered difficult a nice balancing of responsibilities and which
demanded an inflexible standard as a safeguard against too ready symphaty for
the injured. It was assumed that an exact measure of several concurring faults
was unattainable.
The reason why, in cases of mutual concurring negligence, neither party
can maintain an action against the other, is, not the wrong of the one is
set off against the wrong of the other; it that the law can not measure
how much of the damage suffered is attributable to the plaintiff's own
fault. If he were allowed to recover, it might be that he would obtain
from the other party compensation for hiss own misconduct.
(Heil vs.Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of
damages. The law has no scales to determine in such cases whose
wrongdoing weighed most in the compound that occasioned the mischief.
(Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to
review to relax the vigor of the rule by freely exercising the power of setting
aside verdicts deemed excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial revision of damages
by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their
respective responsibilities. In the civil law system the desirable end is not deemed
beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other
countries under the stress and counter stress of novel schemers of legislation, we
find the theory of damages laid down in the judgment the most consistent with
the history and the principals of our law in these Islands and with its logical
development.
Difficulty seems to be apprehended in deciding which acts of the injured party
shall be considered immediate causes of the accident. The test is simple.
Distinction must be between the accident and the injury, between the event
itself, without which there could have been no accident, and those acts of the
victim not entering into it, independent of it, but contributing under review was
the displacement of the crosspiece or the failure to replace it. this produced the
event giving occasion for damages — that is, the shinking of the track and the
sliding of the iron rails. To this event, the act of the plaintiff in walking by the
side of the car did not contribute, although it was an element of the damage
which came to himself. Had the crosspiece been out of place wholly or partly
thorough his act of omission of duty, the last would have been one of the
determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he may recover the amount
that the defendant responsible for the event should pay for such injury, less a
sum deemed a suitable equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing
the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500
dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly
attributable to his negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten
days hereafter let the case be remanded to the court below for proper action. So
ordered.
Arellano, C.J. Torres and Mapa, JJ., concur.
Separate Opinions
WILLARD, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of the track is
indicated by his own evidence. He testified, among other things, as follows:
Q. Now, describe the best you can the character of the track that ran
from the place where you loaded the irons from the barge up to the
point where you unloaded them on the ground.
A. — Well, it was pretty bad character.
xxx xxx xxx
Q. And you were familiar with the track before that its construction?
A. Familiar with what?
Q. Well, you have described it here to the court.
A. Oh, yes; I knew the condition of the track.
 Q. You knew its conditions as you have described it here at the time A. Well, at that conversation as far as I can remember, we were all
you were working around there? walking down the track and I know that McCoy and Mr. Blakes was along
A. Yes, sir. at the time. I remember them two, but we were all walking down the
track in a bunch, but I disremember them.
xxx xxx xxx
xxx xxx xxx
Q. And while operating it from the side it was necessary for you to
step from board to board on the cross-ties which extended out over the Q. Was that the exact language that you used, that you wanted some
stringers? fish plates put on?

A. Yes, sir. A. No, sir: I told him to look at that track. I says get some fish plates.
I says if there was any fish plates we would fix that.
Q. And these were very of irregular shape, were they not?
Q. What did the fish plates have to do with that?
A. They were in pretty bad condition.
A. It would have strengthened that joint.
xxx xxx xxx
Q. Why didn't you put the 8 by 8 which was washed crossways in
Q. And it was not safe to walk along on the outside of these place?
crosspieces?
A. That would have been taken the raising of the track and digging out
A. It was safe if the car stayed on the track. We didn't try to hold the along this upright piece and then putting it up again.
load on. We tried to hold the car back, keep it from going too fast,
because we knew the track was in bad condition just here, and going The plaintiff himself testified that he was present with Ellis at the time this
down too fast we could be liable to run off most any time. conversation was had with McKenna. It thus appears that on the morning in
question the plaintiff and McKenna were standing directly over the place where
Q. You knew the track was in bad condition when you got hold? the accident happened later in the day. The accident was caused, as the court
A. Sure, it was in bad condition. below found, by the washing away or displacement of the large 8 by 8 piece of
timber. This track was constructed as all other tracks are, all of it open work,
xxx xxx xxx
with no floor over the ties, and of course see the ground and the entire
Q. And the accident took place at that point where you believed it to construction of the road, including these large 8 by 8 pieces, the long stringers
be so dangerous? placed thereon, the ties placed on these stringers, and the rails placed on the
A. Yes, sir. ties. The plaintiff himself must have seen that the 8 by 8 piece of timber was out
of place.
Q. But you knew it was dangerous?
If the testimony of the plaintiff's witnesses is to be believed, the displacement
A. Why certainly, anybody could see it; but a workingman had to was more markedly apparent even than it would appear from the testimony of the
work in those days or get arrested for a vag here in Manila. defendant's witnesses. According to the plaintiff's witnesses, the water at high
The court below, while it found that the plaintiff knew in a general way of the tide reached the place in question and these 8 by 8 pieces were therefore not laid
bad condition of the track, found that he was not informed of the exact cause of upon the ground but were placed upon posts driven into the ground, the height of
the accident, namely, the washing away of the large crosspiece laid upon the the posts at this particular place being, according to the testimony of the
ground or placed upon the posts as the foundation upon which the stripers rested. plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis
This finding of fact to my mind is plainly and manifestly against the weight of the testified that the reason why they did not put the 8 by 8 back in its place was
evidence. Ellis, a witness for the plaintiff, testified that on the morning of the because that would have required the raising up of the track and digging out
accident he called the attention of McKenna, the foreman, to the defective along this upright piece and then putting it up again.
condition of the track at his precise point where the accident happened. His It conclusively appears from the evidence that the plaintiff, before the accident
testimony in part is as follows: happened, knew the exact condition of the track and was informed and knew of
A. I called Mr. McKenna. I showed him the track and told him I didn't the defect which caused the accident. There was no promise on the part of
think it was safe working, and that if he didn't fix it he was liable to have McKenna to repair the track.
an accident; I told him I thought if he put fish plates on it would it. He Under the circumstances the plaintiff was negligent in placing himself on the side
said, you keep on fishing around here for fish plates and you will be of the car where he knew that he would be injured by the falling of the rails from
fishing for another job the first thing you know." He says, "You see to the car when they reached this point in the track where the two stringers were
much." without any support of their ends. He either should have refused to work at all or
xxx xxx xxx he should have placed himself behind the car, on the other side of it, or in front
of it, drawing it with a rope. He was guilty of contributory negligence and is not
Q. Who else was present at the time you had this conversation with
entitled to recover.
Mr. McKenna?
It is, said however, that contributory negligence on the part of the plaintiff in a
case like this is no defense under the law in force in these Islands. To this
proposition I can not agree. The liability of the defendant is based in the majority
opinion upon articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its
negligence caused the accident. The reason why contradictory negligence on the
part of the plaintiff is a defense in this class of cases is that the negligence of the
defendant did not alone cause the accident. If nothing but that negligence had
existed, the accident would not have happened and, as I understand it, in every
case in which contradictory negligence is a defense it is made so because the
negligence of the plaintiff is the cause of the accident, to this extent, that if the
plaintiff had not been negligent the accident would not have happened, although
the defendant was also negligent. In other words, the negligence of the defendant
is not alone sufficient to cause the accident. It requires also the negligence of the
plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory
negligence. The rule of the Roman law was: "Quod quis ex culap sua damnum
sentit, no intelligitur damnum sentire." (Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to
him through his own fault, and that he can not demand reparation
therefor from another. (Law 25, tit. 5, partida 3.)
And they even said that when a man received an injury through his own
acts, the grievance should be against himself and not against another.
(Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that
the plaintiff was himself guilty of negligence, as in the civil judgments of the 4th
of June, 1888, and of the 20th of February, 1887, and in the criminal judgments
of the 20th of February 1888, the 90th of March, 1876, and the 6th of October,
1882. These cases do not throw much light upon the subject. The judgment of the
7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, directly in point. In
that case the supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code,
fault or negligence is a source of obligation when between such
negligence and the injury thereby caused there exists the relation of
cause and effect; but in the injury caused should not be the result of
acts or omissions of a third party, the latter has no obligation to repair
the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of
the injury was the negligence of the injured person party himself.
Found the reasons above stated, and the court below having found that
the death of the deceased was due to his own imprudence, and not
therefore due to the absence of a guard at the grade crossing where the
accident occurred, it seems clear that court in acquitting the railroad
company of the complaint filed by the widow did not violate the
provisions of the aforesaid article of the Civil Code.
For the same reason, although the authority granted to the railroad
company to open the grade crossing without a special guard was nullified
by the subsequent promulgation of the railroad police law and the
regulations for the execution of the same, the result would be identical,
leaving one of the grounds upon which the judgment of acquittal is
based, to wit, that the accident was caused by the imprudence of the
injured party himself, unaffected.
It appears that the accident in this case took place at a grade crossing where,
according to the claim of the plaintiff, it was the duty of the railroad company to
maintain husband was injured by a train at this crossing, his negligence
contributing to the injury according to the ruling of the court below. This
judgment, then, amounts to a holding that a contributory negligence is a defense
according to the law of Spain. (See also judgment of the 21st of October, 1903,
vol. 96 p. 400, Jurisprudencia Civil.)
Although in the Civil Code there is no express provision upon the subject, in the
Code of Commerce there is found a distinct declaration upon it in reference to
damages caused by collission at sea. Article 827 of the Code of Commerce is as
follows:
If both vessels may be blamed for the collission, each one shall for liable
for his own damages, and both shall jointly responsible for the loss and
damages suffered to their cargoes.
That article is an express recognition of the fact that in collision cases
contributory negligence is a defense,
I do not think that this court is justified in view of the Roman law, of the
provisions of the Partidas, of the judgment of March 7, 1902, of article 827 of the
Code of Commerce, and in the absence of any declaration upon the subject in the
Civil Code, in saying that it was the intention rule announced in the majority
opinion, a rule dimetrically opposed to that put in force by the Code of
Commerce.
The chief, is not the only, reason stated in the opinion for adopting the rule that
contradictory negligence is not a defense seems to be that such is the holding of
the later French decisions.
As to whether, if any liability existed in this case, it would be necessary in
accordance with the provisions of the Penal Code, or primary, in accordance with
the provision of the Civil Code, I express no opinion.
The judgment should, I think, be reversed and the defendant acquitted of the
complaint.
Carson, J., concurs.
 FIRST DIVISION
G.R. No. 97626 March 14, 1997
PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINE COMMERCIAL
INTERNATIONAL BANK, ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA
PASCUAL, et al., petitioners,
vs.
THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by ROMEO
LIPANA, its President & General Manager, respondents.
HERMOSISIMA, JR., J.:
Challenged in this petition for review is the Decision dated February 28,
1991 1 rendered by public respondent Court of Appeals which affirmed the
Decision dated November 15, 1985 of the Regional Trial Court, National Capital
Judicial Region, Branch CLX (160), Pasig City, in Civil Case No. 27288 entitled
"Rommel's Marketing Corporation, etc. v. Philippine Bank of Commerce, now
absorbed by Philippine Commercial and Industrial Bank."
The case stemmed from a complaint filed by the private respondent Rommel's
Marketing Corporation (RMC for brevity), represented by its President and General
Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce
(PBC for brevity), now absorbed by the Philippine Commercial International Bank,
the sum of P304,979.74 representing various deposits it had made in its current
account with said bank but which were not credited to its account, and were
instead deposited to the account of one Bienvenido Cotas, allegedly due to the
gross and inexcusable negligence of the petitioner bank.
RMC maintained two (2) separate current accounts, Current Account Nos. 53-
01980-3 and 53-01748-7, with the Pasig Branch of PBC in connection with its
business of selling appliances.
In the ordinary and usual course of banking operations, current account deposits
are accepted by the bank on the basis of deposit slips prepared and signed by the
depositor, or the latter's agent or representative, who indicates therein the
current account number to which the deposit is to be credited, the name of the
depositor or current account holder, the date of the deposit, and the amount of
the deposit either in cash or checks. The deposit slip has an upper portion or stub,
which is detached and given to the depositor or his agent; the lower portion is
retained by the bank. In some instances, however, the deposit slips are prepared
in duplicate by the depositor. The original of the deposit slip is retained by the
bank, while the duplicate copy is returned or given to the depositor.
From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have
entrusted RMC funds in the form of cash totalling P304,979.74 to his secretary,
Irene Yabut, for the purpose of depositing said funds in the current accounts of
RMC with PBC. It turned out, however, that these deposits, on all occasions, were
not credited to RMC's account but were instead deposited to Account No. 53-
01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account
with the same bank. During this period, petitioner bank had, however, been
regularly furnishing private respondent with monthly statements showing its
current accounts balances. Unfortunately, it had never been the practice of
Romeo Lipana to check these monthly statements of account reposing complete
trust and confidence on petitioner bank.
Irene Yabut's modus operandi is far from complicated. She would accomplish two
(2) copies of the deposit slip, an original and a duplicate. The original showed the
name of her husband as depositor and his current account number. On the
duplicate copy was written the account number of her husband but the name of
the account holder was left blank. PBC's teller, Azucena Mabayad, would,
however, validate and stamp both the original and the duplicate of these deposit
slips retaining only the original copy despite the lack of information on the
duplicate slip. The second copy was kept by Irene Yabut allegedly for record
purposes. After validation, Yabut would then fill up the name of RMC in the space
left blank in the duplicate copy and change the account number written thereon,
which is that of her husband's, and make it appear to be RMC's account
number, i.e., C.A. No. 53-01980-3. With the daily remittance records also
prepared by Ms. Yabut and submitted to private respondent RMC together with
the validated duplicate slips with the latter's name and account number, she
made her company believe that all the while the amounts she deposited were
being credited to its account when, in truth and in fact, they were being
deposited by her and credited by the petitioner bank in the account of Cotas. This
went on in a span of more than one (1) year without private respondent's
knowledge.
Upon discovery of the loss of its funds, RMC demanded from petitioner bank the
return of its money, but as its demand went unheeded, it filed a collection suit
before the Regional Trial Court of Pasig, Branch 160. The trial court found
petitioner bank negligent and ruled as follows:
WHEREFORE, judgment is hereby rendered sentencing defendant
Philippine Bank of Commerce, now absorbed by defendant
Philippine Commercial & Industrial Bank, and defendant
Azucena Mabayad to pay the plaintiff, jointly and severally, and
without prejudice to any criminal action which may be
instituted if found warranted:
1. The sum of P304,979.72, representing plaintiffs lost deposit,
plus interest thereon at the legal rate from the filing of the
complaint;
2. A sum equivalent to 14% thereof, as exemplary damages;
3. A sum equivalent to 25% of the total amount due, as and for
attorney's fees; and
4. Costs.
Defendants' counterclaim is hereby dismissed for lack of merit. 2
On appeal, the appellate court affirmed the foregoing decision with
modifications, viz:
WHEREFORE, the decision appealed from herein is MODIFIED in
the sense that the awards of exemplary damages and attorney's
fees specified therein are eliminated and instead, appellants
are ordered to pay plaintiff, in addition to the principal sum of
P304,979.74 representing plaintiff's lost deposit plus legal
interest thereon from the filing of the complaint, P25,000.00
attorney's fees and costs in the lower court as well as in this
Court. 3
Hence, this petition anchored on the following grounds:
1) The proximate cause of the loss is the negligence of
respondent Rommel Marketing Corporation and Romeo Lipana in
entrusting cash to a dishonest employee.
2) The failure of respondent Rommel Marketing Corporation to
cross-check the bank's statements of account with its own
records during the entire period of more than one (1) year is the
proximate cause of the commission of subsequent frauds and
misappropriation committed by Ms. Irene Yabut.
3) The duplicate copies of the deposit slips presented by
respondent Rommel Marketing Corporation are falsified and are
not proof that the amounts appearing thereon were deposited to
respondent Rommel Marketing Corporation's account with the
bank,
4) The duplicate copies of the deposit slips were used by Ms.
Irene Yabut to cover up her fraudulent acts against respondent
Rommel Marketing Corporation, and not as records of deposits
she made with the bank. 4
The petition has no merit.
Simply put, the main issue posited before us is: What is the proximate cause of
the loss, to the tune of P304,979.74, suffered by the private respondent RMC —
petitioner bank's negligence or that of private respondent's?
Petitioners submit that the proximate cause of the loss is the negligence of
respondent RMC and Romeo Lipana in entrusting cash to a dishonest employee in
the person of Ms. Irene Yabut. 5 According to them, it was impossible for the bank
to know that the money deposited by Ms. Irene Yabut belong to RMC; neither was
the bank forewarned by RMC that Yabut will be depositing cash to its account.
Thus, it was impossible for the bank to know the fraudulent design of Yabut
considering that her husband, Bienvenido Cotas, also maintained an account with
the bank. For the bank to inquire into the ownership of the cash deposited by Ms.
Irene Yabut would be irregular. Otherwise stated, it was RMC's negligence in
entrusting cash to a dishonest employee which provided Ms. Irene Yabut the
opportunity to defraud RMC. 6
Private respondent, on the other hand, maintains that the proximate cause of the
loss was the negligent act of the bank, thru its teller Ms. Azucena Mabayad, in
validating the deposit slips, both original and duplicate, presented by Ms. Yabut
to Ms. Mabayad, notwithstanding the fact that one of the deposit slips was not
completely accomplished.
We sustain the private respondent.
Our law on quasi-delicts states:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this Chapter.
There are three elements of a quasi-delict: (a) damages suffered by the plaintiff;
(b) fault or negligence of the defendant, or some other person for whose acts he
must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff. 7
In the case at bench, there is no dispute as to the damage suffered by the private
respondent (plaintiff in the trial court) RMC in the amount of P304,979.74. It is in
ascribing fault or negligence which caused the damage where the parties point to
each other as the culprit.
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. The seventy-eight (78)-year-old, yet still relevant, case of Picart
v. Smith, 8 provides the test by which to determine the existence of negligence in
a particular case which may be stated as follows: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an ordinarily
prudent person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied
by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers
what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad,
was negligent in validating, officially stamping and signing all the deposit slips
prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate
copy was not completely accomplished contrary to the self-imposed procedure of
the bank with respect to the proper validation of deposit slips, original or
duplicate, as testified to by Ms. Mabayad herself, thus:
Q: Now, as teller of PCIB, Pasig Branch, will you please tell us
Mrs. Mabayad your important duties and functions?
A: I accept current and savings deposits from depositors and
encashments.
Q: Now in the handling of current account deposits of bank
clients, could you tell us the procedure you follow?
A: The client or depositor or the authorized representative
prepares a deposit slip by filling up the deposit slip with the
name, the account number, the date, the cash breakdown, if it
is deposited for cash, and the check number, the amount and
then he signs the deposit slip.
Q: Now, how many deposit slips do you normally require in
accomplishing current account deposit, Mrs. Mabayad?
A: The bank requires only one copy of the deposit although
some of our clients prepare the deposit slip in duplicate.
Q: Now in accomplishing current account deposits from your
clients, what do you issue to the depositor to evidence the
deposit made?
A: We issue or we give to the clients the depositor's stub as a
receipt of the deposit.
Q: And who prepares the deposit slip?
 A: The depositor or the authorized representative sir?
Q: Where does the depositor's stub comes (sic) from Mrs.
Mabayad, is it with the deposit slip?
A: The depositor's stub is connected with the deposit slip or the
bank's copy. In a deposit slip, the upper portion is the
depositor's stub and the lower portion is the bank's copy, and
you can detach the bank's copy from the depositor's stub by
tearing it sir.
Q: Now what do you do upon presentment of the deposit slip by
the depositor or the depositor's authorized representative?
A: We see to it that the deposit slip 9 is properly accomplished
and then we count the money and then we tally it with the
deposit slip sir.
Q: Now is the depositor's stub which you issued to your clients
validated?
A: Yes, sir. 10 [Emphasis ours]
Clearly, Ms. Mabayad failed to observe this very important procedure.
The fact that the duplicate slip was not compulsorily required by the
bank in accepting deposits should not relieve the petitioner bank of
responsibility. The odd circumstance alone that such duplicate copy
lacked one vital information — that of the name of the account holder —
should have already put Ms. Mabayad on guard. Rather than readily
validating the incomplete duplicate copy, she should have proceeded
more cautiously by being more probing as to the true reason why the
name of the account holder in the duplicate slip was left blank while
that in the original was filled up. She should not have been so naive in
accepting hook, line and sinker the too shallow excuse of Ms. Irene Yabut
to the effect that since the duplicate copy was only for her personal
record, she would simply fill up the blank space later on. 11 A "reasonable
man of ordinary prudence" 12would not have given credence to such
explanation and would have insisted that the space left blank be filled up
as a condition for validation. Unfortunately, this was not how bank teller
Mabayad proceeded thus resulting in huge losses to the private
respondent.
Negligence here lies not only on the part of Ms. Mabayad but also on the part of
the bank itself in its lackadaisical selection and supervision of Ms. Mabayad. This
was exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the
Pasig Branch of the petitioner bank and now its Vice-President, to the effect that,
while he ordered the investigation of the incident, he never came to know that
blank deposit slips were validated in total disregard of the bank's validation
procedures, viz:
Q: Did he ever tell you that one of your cashiers affixed the
stamp mark of the bank on the deposit slips and they validated
the same with the machine, the fact that those deposit slips
were unfilled up, is there any report similar to that?
A: No, it was not the cashier but the teller.
Q: The teller validated the blank deposit slip?
A: No it was not reported.
Q: You did not know that any one in the bank tellers or cashiers
validated the blank deposit slip?
A: I am not aware of that.
Q: It is only now that you are aware of that?
A: Yes, sir. 13
Prescinding from the above, public respondent Court of Appeals aptly observed:
xxx xxx xxx
It was in fact only when he testified in this case in February,
1983, or after the lapse of more than seven (7) years counted
from the period when the funds in question were deposited in
plaintiff's accounts (May, 1975 to July, 1976) that bank manager
Bonifacio admittedly became aware of the practice of his teller
Mabayad of validating blank deposit slips. Undoubtedly, this is
gross, wanton, and inexcusable negligence in the appellant
bank's supervision of its employees. 14
It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the
petitioner bank in the selection and supervision of its bank teller, which was the
proximate cause of the loss suffered by the private respondent, and not the
latter's act of entrusting cash to a dishonest employee, as insisted by the
petitioners.
Proximate cause is determined on the facts of each case upon mixed
considerations of logic, common sense, policy and precedent. 15 Vda. de Bataclan
v. Medina, 16 reiterated in the case of Bank of the Phil. Islands v. Court of
Appeals, 17 defines proximate cause as "that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred. . . ." In this case,
absent the act of Ms. Mabayad in negligently validating the incomplete duplicate
copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to
perpetrate her fraudulent scheme with impunity. Apropos, once again, is the
pronouncement made by the respondent appellate court, to wit:
. . . . Even if Yabut had the fraudulent intention to
misappropriate the funds entrusted to her by plaintiff, she
would not have been able to deposit those funds in her
husband's current account, and then make plaintiff believe that
it was in the latter's accounts wherein she had deposited them,
had it not been for bank teller Mabayad's aforesaid gross and
reckless negligence. The latter's negligence was thus the
proximate, immediate and efficient cause that brought about
the loss claimed by plaintiff in this case, and the failure of
plaintiff to discover the same soon enough by failing to
scrutinize the monthly statements of account being sent to it by
appellant bank could not have prevented the fraud and
misappropriation which Irene Yabut had already completed
when she deposited plaintiff's money to the account of her
husband instead of to the latter's accounts. 18
Furthermore, under the doctrine of "last clear chance" (also referred to, at times
as "supervening negligence" or as "discovered peril"), petitioner bank was indeed
the culpable party. This doctrine, in essence, states that where both parties are
negligent, but the negligent act of one is appreciably later in time than that of
the other, or when it is impossible to determine whose fault or negligence should
be attributed to the incident, the one who had the last clear opportunity to avoid
the impending harm and failed to do so is chargeable with the consequences
thereof. 19Stated differently, the rule would also mean that an antecedent
negligence of a person does not preclude the recovery of damages for the
supervening negligence of, or bar a defense against liability sought by another, if
the latter, who had the last fair chance, could have avoided the impending harm
by the exercise of due diligence. 20Here, assuming that private respondent RMC
was negligent in entrusting cash to a dishonest employee, thus providing the
latter with the opportunity to defraud the company, as advanced by the
petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had
the last clear opportunity to avert the injury incurred by its client, simply by
faithfully observing their self-imposed validation procedure.
At this juncture, it is worth to discuss the degree of diligence ought to be
exercised by banks in dealing with their clients.
The New Civil Code provides:
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the
persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph 2,
shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good
father of a family shall be required. (1104a)
In the case of banks, however, the degree of diligence required is more than that
of a good father of a family. Considering the fiduciary nature of their relationship
with their depositors, banks are duty bound to treat the accounts of their clients
with the highest degree of care. 21
As elucidated in Simex International (Manila), Inc. v. Court of Appeals, 22 in every
case, the depositor expects the bank to treat his account with the utmost fidelity,
whether such account consists only of a few hundred pesos or of millions. The
bank must record every single transaction accurately, down to the last centavo,
and as promptly as possible. This has to be done if the account is to reflect at any
given time the amount of money the depositor can dispose as he sees fit,
confident that the bank will deliver it as and to whomever he directs. A blunder
on the part of the bank, such as the failure to duly credit him his deposits as soon
as they are made, can cause the depositor not a little embarrassment if not
financial loss and perhaps even civil and criminal litigation.
The point is that as a business affected with public interest and because of the
nature of its functions, the bank is under obligation to treat the accounts of its
depositors with meticulous care, always having in mind the fiduciary nature of
their relationship. In the case before us, it is apparent that the petitioner bank
was remiss in that duty and violated that relationship.
Petitioners nevertheless aver that the failure of respondent RMC to cross-check
the bank's statements of account with its own records during the entire period of
more than one (1) year is the proximate cause of the commission of subsequent
frauds and misappropriation committed by Ms. Irene Yabut.
We do not agree.
While it is true that had private respondent checked the monthly statements of
account sent by the petitioner bank to RMC, the latter would have discovered the
loss early on, such cannot be used by the petitioners to escape liability. This
omission on the part of the private respondent does not change the fact that were
it not for the wanton and reckless negligence of the petitioners' employee in
validating the incomplete duplicate deposit slips presented by Ms. Irene Yabut,
the loss would not have occurred. Considering, however, that the fraud was
committed in a span of more than one (1) year covering various deposits, common
human experience dictates that the same would not have been possible without
any form of collusion between Ms. Yabut and bank teller Mabayad. Ms. Mabayad
was negligent in the performance of her duties as bank teller nonetheless. Thus,
the petitioners are entitled to claim reimbursement from her for whatever they
shall be ordered to pay in this case.
The foregoing notwithstanding, it cannot be denied that, indeed, private
respondent was likewise negligent in not checking its monthly statements of
account. Had it done so, the company would have been alerted to the series of
frauds being committed against RMC by its secretary. The damage would
definitely not have ballooned to such an amount if only RMC, particularly Romeo
Lipana, had exercised even a little vigilance in their financial affairs. This
omission by RMC amounts to contributory negligence which shall mitigate the
damages that may be awarded to the private respondent 23 under Article 2179 of
the New Civil Code, to wit:
. . . When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.
In view of this, we believe that the demands of substantial justice are
satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the
damage awarded by the respondent appellate court, except the award of
P25,000.00 attorney's fees, shall be borne by private respondent RMC;
only the balance of 60% needs to be paid by the petitioners. The award
of attorney's fees shall be borne exclusively by the petitioners.
WHEREFORE, the decision of the respondent Court of Appeals is modified by
reducing the amount of actual damages private respondent is entitled to by 40%.
Petitioners may recover from Ms. Azucena Mabayad the amount they would pay
the private respondent. Private respondent shall have recourse against Ms. Irene
Yabut. In all other respects, the appellate court's decision is AFFIRMED.
Proportionate costs.
SO ORDERED.
Bellosillo, Vitug and Kapunan, JJ., concur.

Separate Opinions
PADILLA, J., dissenting:
I regret that I cannot join the majority in ruling that the proximate cause of the
damage suffered by Rommel's Marketing Corporation (RMC) is mainly "the wanton
and reckless negligence of the petitioner's employee in validating the incomplete
duplicate deposit slips presented by Ms. Irene Yabut" (Decision, p. 15). Moreover,
I find it difficult to agree with the ruling that "petitioners are entitled to claim
reimbursement from her (the bank teller) for whatever they shall be ordered to
pay in this case."
It seems that an innocent bank teller is being unduly burdened with what should
fall on Ms. Irene Yabut, RMC's own employee, who should have been charged with
estafa or estafa through falsification of private document. Interestingly, the
records are silent on whether RMC had ever filed any criminal case against Ms.
Irene Yabut, aside from the fact that she does not appear to have been impleaded
even as a party defendant in any civil case for damages. Why is RMC insulating Ms.
Irene Yabut from liability when in fact she orchestrated the entire fraud on RMC,
her employer?
To set the record straight, it is not completely accurate to state that from 5 May
1975 to 16 July 1976, Miss Irene Yabut had transacted with PCIB (then PBC)
through only one teller in the person of Azucena Mabayad. In fact, when RMC filed
a complaint for estafa before the Office of the Provincial Fiscal of Rizal, it
indicted all the tellers of PCIB in the branch who were accused of conspiracy to
defraud RMC of its current account deposits. (See Annex B, Rollo p. 22 and 47).
Even private respondent RMC, in its Comment, maintains that "when the
petitioner's tellers" allowed Irene Yabut to carry out her modus
operandi undetected over a period of one year, "their negligence cannot but be
gross." (Rollo, p. 55; see also Rollo pp. 58 to 59). This rules out the possibility
that there may have been some form of collusion between Yabut and bank teller
Mabayad. Mabayad was just unfortunate that private respondent's documentary
evidence showed that she was the attending teller in the bulk of Yabut's
transactions with the bank.
Going back to Yabut's modus operandi, it is not disputed that each time Yabut
would transact business with PBC's tellers, she would accomplish two (2) copies of
the current account deposit slip. PBC's deposit slip, as issued in 1975, had two
parts. The upper part was called the depositor's stub and the lower part was
called the bank copy. Both parts were detachable from each other. The deposit
slip was prepared and signed by the depositor or his representative, who
indicated therein the current account number to which the deposit was to be
credited, the name of the depositor or current account holder, the date of the
deposit, and the amount of the deposit either in cash or in checks. (Rollo, p. 137)
Since Yabut deposited money in cash, the usual bank procedure then was for the
teller to count whether the cash deposit tallied with the amount written down by
the depositor in the deposit slip. If it did, then the teller proceeded to verify
whether the current account number matched with the current account name as
written in the deposit slip.
In the earlier days before the age of full computerization, a bank normally
maintained a ledger which served as a repository of accounts to which debits and
credits resulting from transactions with the bank were posted from books of
original entry. Thus, it was only after the transaction was posted in the ledger
that the teller proceeded to machine validate the deposit slip and then affix his
signature or initial to serve as proof of the completed transaction.
It should be noted that the teller validated the depositor's stub in the upper
portion and the bank copy on the lower portion on both the original and duplicate
copies of the deposit slips presented by Yabut. The teller, however, detached the
validated depositor's stub on the original deposit slip and allowed Yabut to retain
the whole validated duplicate deposit slip that bore the same account number as
the original deposit slip, but with the account name purposely left blank by
Yabut, on the assumption that it would serve no other purpose but for a personal
record to complement the original validated depositor's stub.
Thus, when Yabut wrote the name of RMC on the blank account name on the
validated duplicate copy of the deposit slip, tampered with its account number,
and superimposed RMC's account number, said act only served to cover-up the loss
already caused by her to RMC, or after the deposit slip was validated by the teller
in favor of Yabut's husband. Stated otherwise, when there is a clear evidence of
tampering with any of the material entries in a deposit slip, the genuineness and
due execution of the document become an issue in resolving whether or not the
transaction had been fair and regular and whether the ordinary course of business
had been followed by the bank.
It is logical, therefore, to conclude that the legal or proximate cause of RMC's loss
was when Yabut, its employee, deposited the money of RMC in her husband's
name and account number instead of that of RMC, the rightful owner of such
deposited funds. Precisely, it was the criminal act of Yabut that directly caused
damage to RMC, her employer, not the validation of the deposit slip by the teller
as the deposit slip was made out by Yabut in her husband's name and to his
account.
Even if the bank teller had required Yabut to completely fill up the duplicate
deposit slip, the original deposit slip would nonetheless still be validated under
the account of Yabut's husband. In fine, the damage had already been done to
RMC when Yabut deposited its funds in the name and account number of her
husband with petitioner bank. It is then entirely left to speculation what Yabut
would have done afterwards — like tampering both the account number and the
account name on the stub of the original deposit slip and on the duplicate copy —
in order to cover up her crime.
Under the circumstances in this case, there was no way for PBC's bank tellers to
reasonably foresee that Yabut might or would use the duplicate deposit slip to
cover up her crime. In the first place, the bank tellers were absolutely unaware
that a crime had already been consummated by Yabut when her transaction by
her sole doing was posted in the ledger and validated by the teller in favor of her
husband's account even if the funds deposited belonged to RMC.
The teller(s) in this case were not in any way proven to be parties to the crime
either as accessories or accomplices. Nor could it be said that the act of posting
and validation was in itself a negligent act because the teller(s) simply had no
choice but to accept and validate the deposit as written in the original deposit
slip under the account number and name of Yabut's husband. Hence, the act of
validating the duplicate copy was not the proximate cause of RMC's injury but
merely a remote cause which an independent cause or agency merely took
advantage of to accomplish something which was not the probable or natural
effect thereof. That explains why Yabut still had to tamper with the account
number of the duplicate deposit slip after filling in the name of RMC in the blank
space.
Coming now to the doctrine of "last clear chance," it is my considered view that
the doctrine assumes that the negligence of the defendant was subsequent to the
negligence of the plaintiff and the same must be the proximate cause of the
injury. In short, there must be a last and a clear chance, not a
last possible chance, to avoid the accident or injury. It must have been a chance
as would have enabled a reasonably prudent man in like position to have acted
effectively to avoid the injury and the resulting damage to himself.
In the case at bar, the bank was not remiss in its duty of sending monthly bank
statements to private respondent RMC so that any error or discrepancy in the
entries therein could be brought to the bank's attention at the earliest
opportunity. Private respondent failed to examine these bank statements not
because it was prevented by some cause in not doing so, but because it was
purposely negligent as it admitted that it does not normally check bank
statements given by banks.
It was private respondent who had the last and clear chance to prevent any
further misappropriation by Yabut had it only reviewed the status of its current
accounts on the bank statements sent to it monthly or regularly. Since a sizable
amount of cash was entrusted to Yabut, private respondent should, at least, have
taken ordinary care of its concerns, as what the law presumes. Its negligence,
therefore, is not contributory but the immediate and proximate cause of its
injury.
I vote to grant the petition.
13 Rollo, p. 43, citing TSN, 9 February 1983, pp. 10-12.
14 Decision, p. 8; Rollo, p. 44.
15 Supra., note 12 at 90.
16 102 Phil. 181, 186 [1957].
17 216 SCRA 51, 75 [1992].
18 Decision, pp. 6-7; Rollo, pp. 42-43.
19 LBC Air Cargo, Inc. v. Court of Appeals, 241 SCRA 619, 624
[1995], citing Picart v. Smith, supra.
20 Ibid., citing Pantranco North Express, Inc. v. Baesa, 179 SCRA
384; Glan People's Lumber and Hardware v. Intermediate
Appellate Court, 173 SCRA 464.
21 Metropolitan Bank and Trust Company v. Court of Appeals,
237 SCRA 761, 767 [1994]; Bank of the Phil. Islands v. Court of
Appeals, supra., note 16 at 71.
22 183 SCRA 360, 367 [1990], cited in Bank of the Phil. Islands v.
Intermediate Appellate Court, 206 SCRA 408, 412-413 [1992];
City Trust Banking Corp. v. Intermediate Appellate Court, 232
SCRA 559, 564 [1994]; Metropolitan Bank and Trust Company v.
CA, supra.
23 Phoenix Construction, Inc. v. Intermediate Appellate Court,
148 SCRA 353, 368 [1987]; Del Prado v. Manila Electric Co., 52
Phil. 900, 906 [1929]; Rakes v. Atlantic, Gulf and Pacific Co., 7
Phil. 359, 375 [1907].

Footnotes
1 Rollo, pp. 37-46.
2 Rollo, pp. 40-41.
3 Decision. pp. 9-10; Rollo, pp. 45-46.
4 Petition, pp. 13-14; Rollo, pp. 20-21.
5 Petition, p. 14; Rollo, p. 21.
6 Reply, p. 13; Rollo, p. 82.
7 Andamo v. Intermediate Appellate Court, 191 SCRA 195, 201
[1990], citing Taylor v. Manila Electric Company, 16 Phil. 8
[1910]; Vergara v. Court of Appeals, 154 SCRA 564 [1987].
8 37 Phil. 809, 813 [1918], reiterated in Bank of the Phil. Islands
v. Court of Appeals, 216 SCRA 51, 72-73 [1992]; Layugan v.
Intermediate Appellate Court, 167 SCRA 363, 373 [1988]; Gan v.
Court of Appeals, 165 SCRA 378, 382 [1988]; see also Leano v.
Domingo, 198 SCRA 800, 804 [1991].
9 Original or duplicate.
10 Rollo, pp. 104-105. citing TSN, 14 August 1981, pp. 6-12.
11 Rollo, p. 56, citing TSN, 14 August 1981, pp. 42-47.
12 Sangco, Torts and Damages, Vol. I, 1993 ed., p.
8, citing Prosser, Law on Torts, 3rd Edition, 1964, pp. 153-154.
 FIRST DIVISION
G.R. No. L-45637 May 31, 1985
ROBERTO JUNTILLA, petitioner,
vs.
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents.
Valentin A. Zozobrado for petitioner.
Ruperto N. Alfarara for respondents.
GUTIERREZ, JR., J.:
This is a petition for review, on questions of law, of the decision of the Court of
First Instance of Cebu which reversed the decision of the City Court of Cebu and
exonerated the respondents from any liability arising from a vehicular accident.
The background facts which led to the filing of a complaint for breach of contract
and damages against the respondents are summarized by the Court of First
Instance of Cebu as follows:
The facts established after trial show that the plaintiff was a passenger
of the public utility jeepney bearing plate No. PUJ-71-7 on the course of
the trip from Danao City to Cebu City. The jeepney was driven by
defendant Berfol Camoro. It was registered under the franchise of
defendant Clemente Fontanar but was actually owned by defendant
Fernando Banzon. When the jeepney reached Mandaue City, the right
rear tire exploded causing the vehicle to turn turtle. In the process, the
plaintiff who was sitting at the front seat was thrown out of the vehicle.
Upon landing on the ground, the plaintiff momentarily lost
consciousness. When he came to his senses, he found that he had a
lacerated wound on his right palm. Aside from this, he suffered injuries
on his left arm, right thigh and on his back. (Exh. "D"). Because of his
shock and injuries, he went back to Danao City but on the way, he
discovered that his "Omega" wrist watch was lost. Upon his arrival in
Danao City, he immediately entered the Danao City Hospital to attend to
his injuries, and also requested his father-in-law to proceed immediately
to the place of the accident and look for the watch. In spite of the
efforts of his father-in-law, the wrist watch, which he bought for P
852.70 (Exh. "B") could no longer be found.
xxx xxx xxx
Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract
with damages before the City Court of Cebu City, Branch I against Clemente
Fontanar, Fernando Banzon and Berfol Camoro.
The respondents filed their answer, alleging inter alia that the accident that
caused losses to the petitioner was beyond the control of the respondents taking
into account that the tire that exploded was newly bought and was only slightly
used at the time it blew up.
After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered
judgment in favor of the petitioner and against the respondents. The dispositive
portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants and the latter are hereby ordered, jointly and
severally, to pay the plaintiff the sum of P750.00 as reimbursement for
the lost Omega wrist watch, the sum of P246.64 as unrealized salary of
the plaintiff from his employer, the further sum of P100.00 for the
doctor's fees and medicine, an additional sum of P300.00 for attorney's
fees and the costs.
The respondents appealed to the Court of First Instance of Cebu, Branch XIV.
Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon
a finding that the accident in question was due to a fortuitous event. The
dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered exonerating the defendants
from any liability to the plaintiff without pronouncement as to costs.
A motion for reconsideration was denied by the Court of First Instance.
The petitioner raises the following alleged errors committed by the Court of First
Instance of Cebu on appeal—
a. The Honorable Court below committed grave abuse of discretion in
failing to take cognizance of the fact that defendants and/or their
employee failed to exercise "utmost and/or extraordinary diligence"
required of common carriers contemplated under Art. 1755 of the Civil
Code of the Philippines.
b. The Honorable Court below committed grave abuse of discretion by
deciding the case contrary to the doctrine laid down by the Honorable
Supreme Court in the case of Necesito et al. v. Paras, et al.
We find the petition impressed with merit.
The City Court and the Court of First Instance of Cebu found that the right rear
tire of the passenger jeepney in which the petitioner was riding blew up causing
the vehicle to fall on its side. The petitioner questions the conclusion of the
respondent court drawn from this finding of fact.
The Court of First Instance of Cebu erred when it absolved the carrier from any
liability upon a finding that the tire blow out is a fortuitous event. The Court of
First Instance of Cebu ruled that:
After reviewing the records of the case, this Court finds that the
accident in question was due to a fortuitous event. A tire blow-out, such
as what happened in the case at bar, is an inevitable accident that
exempts the carrier from liability, there being absence of a showing that
there was misconduct or negligence on the part of the operator in the
operation and maintenance of the vehicle involved. The fact that the
right rear tire exploded, despite being brand new, constitutes a clear
case of caso fortuito which can be a proper basis for exonerating the
defendants from liability. ...
The Court of First Instance relied on the ruling of the Court of Appeals
in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29,
1954, where the Court of Appeals ruled that:
 A tire blow-out does not constitute negligence unless the tire was
already old and should not have been used at all. Indeed, this would be a
clear case of fortuitous event.
The foregoing conclusions of the Court of First Instance of Cebu are based on a
misapprehension of overall facts from which a conclusion should be drawn. The
reliance of the Court of First Instance on the Rodriguez case is not in order. In La
Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:
Petitioner maintains that a tire blow-out is a fortuitous event and gives
rise to no liability for negligence, citing the rulings of the Court of
Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136,
December 29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27,
1958. These rulings, however, not only are not binding on this Court but
were based on considerations quite different from those that obtain in
the case at bar. The appellate court there made no findings of any
specific acts of negligence on the part of the defendants and confined
itself to the question of whether or not a tire blow-out, by itself alone
and without a showing as to the causative factors, would generate
liability. ...
In the case at bar, there are specific acts of negligence on the part of the
respondents. The records show that the passenger jeepney turned turtle and
jumped into a ditch immediately after its right rear tire exploded. The evidence
shows that the passenger jeepney was running at a very fast speed before the
accident. We agree with the observation of the petitioner that a public utility
jeep running at a regular and safe speed will not jump into a ditch when its right
rear tire blows up. There is also evidence to show that the passenger jeepney was
overloaded at the time of the accident. The petitioner stated that there were
three (3) passengers in the front seat and fourteen (14) passengers in the rear.
While it may be true that the tire that blew-up was still good because the grooves
of the tire were still visible, this fact alone does not make the explosion of the
tire a fortuitous event. No evidence was presented to show that the accident was
due to adverse road conditions or that precautions were taken by the jeepney
driver to compensate for any conditions liable to cause accidents. The sudden
blowing-up, therefore, could have been caused by too much air pressure injected
into the tire coupled by the fact that the jeepney was overloaded and speeding at
the time of the accident.
In Lasam v. Smith (45 Phil. 657), we laid down the following essential
characteristics of caso fortuito:
xxx xxx xxx
... In a legal sense and, consequently, also in relation to contracts,
a caso fortuito presents the following essential characteristics: (1) The
cause of the unforeseen and unexpected occurrence, or of the failure of
the debtor to comply with his obligation, must be independent of the
human will. (2) It must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be foreseen, it must be
impossible to avoid. (3) The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner. And
(4) the obligor (debtor) must be free from any participation in the
aggravation of the injury resulting to the creditor. (5 Encyclopedia
Juridica Espanola, 309.)
In the case at bar, the cause of the unforeseen and unexpected occurrence was
not independent of the human will. The accident was caused either through the
negligence of the driver or because of mechanical defects in the tire. Common
carriers should teach their drivers not to overload their vehicles, not to exceed
safe and legal speed limits, and to know the correct measures to take when a tire
blows up thus insuring the safety of passengers at all times. Relative to the
contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al.
(104 Phil. 75), that:
... The preponderance of authority is in favor of the doctrine that a
passenger is entitled to recover damages from a carrier for an injury
resulting from a defect in an appliance purchased from a manufacturer,
whenever it appears that the defect would have been discovered by the
carrier if it had exercised the degree of care which under the
circumstances was incumbent upon it, with regard to inspection and
application of the necessary tests. For the purposes of this doctrine, the
manufacturer is considered as being in law the agent or servant of the
carrier, as far as regards the work of constructing the appliance.
According to this theory, the good repute of the manufacturer will not
relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also
Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co.
v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann.
Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger has
neither choice nor control over the carrier in the selection and use of the
equipment and appliances in use by the carrier. Having no privity
whatever with the manufacturer or vendor of the defective equipment,
the passenger has no remedy against him, while the carrier usually has. It
is but logical, therefore, that the carrier, while not an insurer of the
safety of his passengers, should nevertheless be held to answer for the
flaws of his equipment if such flaws were at all discoverable. ...
It is sufficient to reiterate that the source of a common carrier's legal liability is
the contract of carriage, and by entering into the said contract, it binds itself to
carry the passengers safely as far as human care and foresight can provide, using
the utmost diligence of a very cautious person, with a due regard for all the
circumstances. The records show that this obligation was not met by the
respondents.
The respondents likewise argue that the petitioner cannot recover any amount for
failure to prove such damages during the trial. The respondents submit that if the
petitioner was really injured, why was he treated in Danao City and not in
Mandaue City where the accident took place. The respondents argue that the
doctor who issued the medical certificate was not presented during the trial, and
hence not cross-examined. The respondents also claim that the petitioner was not
wearing any wrist watch during the accident.
It should be noted that the City Court of Cebu found that the petitioner had a
lacerated wound on his right palm aside from injuries on his left arm, right thigh
and on his back, and that on his way back to Danao City, he discovered that his
"Omega" wrist watch was lost. These are findings of facts of the City Court of
Cebu which we find no reason to disturb. More so when we consider the fact that
the Court of First Instance of Cebu impliedly concurred in these matters when it
confined itself to the question of whether or not the tire blow out was a
fortuitous event.
WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV
appealed from is hereby REVERSED and SET ASIDE, and the decision of the City
Court of Cebu, Branch I is REINSTATED, with the modification that the damages
shall earn interest at 12% per annum and the attorney's fees are increased to SIX
HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and
Alampay, JJ., concur.
 EN BANC
G.R. No. 71871 November 6, 1989
TEODORO M. HERNANDEZ, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, respondent.
Al-Fred O. Concepcion for petitioner.
CRUZ, J.:
It was one of those prosaic decisions not requiring deep thought or long
deliberation. The petitioner arrived at it almost as a matter of course, applying
what he believed then to be common sense. Little did he realize until later that it
would cause him much anguish, even endanger his life, and ultimately lead to this
litigation. But such are the quirks of fate.
At the time of the incident in question, Teodoro M. Hernandez was the officer-in-
charge and special disbursing officer of the Ternate Beach Project of the
Philippine Tourism Authority in Cavite. As such, he went to the main office of the
Authority in Manila on July 1, 1983, to encash two checks covering the wages of
the employees and the operating expenses of the Project. He estimated that the
money would be available by ten o'clock in the morning and that he would be
back in Ternate by about two o'clock in the afternoon of the same day. For some
reason, however, the processing of the checks was delayed and was completed
only at three o'clock that afternoon. The petitioner decided nevertheless to
encash them because the Project employees would be waiting for their pay the
following day. He thought he had to do this for their benefit as otherwise they
would have to wait until the following Tuesday at the earliest when the main
office would reopen. And so, on that afternoon of July 1, 1983, he collected the
cash value of the checks and left the main office with not an insubstantial amount
of money in his hands. 1
What would he do with the money in the meantime? The petitioner had two
choices, to wit: (1) return to Ternate, Cavite, that same afternoon and arrive
there in the early evening; or (2) take the money with him to his house in Marilao,
Bulacan, spend the night there, and leave for Ternate the following morning. He
opted for the second, thinking it the safer one. And so, on that afternoon of July
1, 1983, at a little past three o'clock, he took a passenger jeep bound for his
house in Bulacan.
It was while the vehicle was along Epifanio de los Santos Avenue that two persons
boarded with knives in hand and robbery in mind. One pointed his weapon at the
petitioner's side while the other slit his pocket and forcibly took the money he
was carrying. The two then jumped out of the jeep and ran. Hernandez, after the
initial shock, immediately followed in desperate pursuit. He caught up with
Virgilio Alvarez and overcame him after a scuffle. The petitioner sustained
injuries in the lip arms and knees. Alvarez was subsequently charged with robbery
and pleaded guilty. But the hold-upper who escaped is still at large and the stolen
money he took with him has not been recovered. 2
On July 5, 1983, the petitioner, invoking the foregoing facts, filed a request for
relief from money accountability under Section 638 of the Revised Administrative
Code. This was favorably indorsed by the General Manager of the Philippine
Tourism Authority the same day 3 and by its Corporate Auditor on July 27,
1983. 4 The Regional Director, National Capital Region, of the Commission on
Audit, made a similar recommendation on January 17, 1984, and also absolved
Hernandez of negligence. 5 On June 29, 1984, however, the Commission on Audit,
through then Chairman Francisco S. Tantuico, jr. denied the petitioner's request,
observing inter alia:
In the instant case, the loss of the P10,175.00 under the accountability
of Mr. Hernandez can be attributed to his negligence because had he
brought the cash proceeds of the checks (replenishment fund) to the
Beach Park in Ternate, Cavite, immediately after encashment for
safekeeping in his office, which is the normal procedure in the handling
of public funds, the loss of said cash thru robbery could have been
aborted. 6
In the petition at bar, Hernandez claims that the respondent Commission on Audit
acted with grave abuse of discretion in denying him relief and in holding him
negligent for the loss of the stolen money. He avers he has done only what any
reasonable man would have done and should not be held accountable for a
fortuitous event over which he had no control.
The petitioner stresses that he decided to encash the checks in the afternoon of
July 1, 1983, which was a Friday, out of concern for the employees of the Project,
who were depending on him to make it possible for them to collect their pay the
following day. July 2 and 3 being non-working days and July 4 being a holiday,
they could receive such payment only on the following Tuesday unless he brought
the encashed checks on July 1, 1983, and took it to Ternate the following day.
On his decision to take the money home that afternoon instead of returning
directly to Ternate, he says that the first course was more prudent as he saw it, if
only because his home in Marilao, Bulacan, was much nearer than his office in
Ternate, Cavite. The drive to Ternate would take three hours, including a 30-
minute tricycle ride along the dark and lonely Naic-Ternate road; and as he would
be starting after three o'clock in the afternoon, it was not likely that he would
reach his destination before nightfall. By contrast, the road to Marilao was nearer
and safer (or so he reasonably thought) and there was less risk involved in his
taking the money the following morning to Ternate rather than on that same
afternoon of July 1.
The petitioner maintains that the likelihood of robbery during the time in
question was stronger in Ternate than in Marilao, so he should not be blamed if
the robbery did occur while he was on the way to Marilao that afternoon. That
was a fortuitous event that could not have reasonably been foreseen, especially
on that busy highway. At any rate, he contends, he had not been remiss in
protecting the money in his custody; in fact, he immediately pursued the hold-
uppers and succeeded in catching one of them who was subsequently prosecuted
and convicted. It might have been different if he had simply resigned himself to
the robbery and allowed the culprits to go scot-free. But he acted. His action
after the robbery only goes to show his vigilance over the money entrusted to his
custody and his readiness to protect it even at great personal risk.
In his Comment, then Solicitor-General Sedfrey A. Ordonez supported the denial
of the petitioner's request, arguing that Hernandez was negligent in the
safekeeping of the stolen funds as correctly found by the Commission on
Audit. 7 Later, however, his successor, Solicitor General Francisco I. Chavez,
submitted a Manifestation in Lieu of Memorandum in which he sided with the
petitioner, agreeing that Hernandez had not committed any negligence or,
assuming he was guilty of contributory negligence, had made up for it with his
efforts to retrieve the money and his capture of one of the robbers, who was
eventually convicted. 8 This prompted the respondent Commission on Audit to
submit its own memorandum.
The Commission on Audit insists in this memorandum that the petitioner should
not be relieved from his money accountability because it was his own negligence
that led to the loss of the cash he had sought to take not to Ternate in Cavite but
to Marilao.
Its contention is that the petitioner should not have encashed the cheeks on July
1, 1983, as the hour was already late and he knew he could not return to Ternate
before nightfall. Knowing this, he should have prudently deferred encashing the
checks until the morning of the next working day on July 5, 1983, when he could
have safely taken the money to Ternate. His alleged concern for the convenience
of his fellow workers was not really a valid reason because one of the checks he
had encashed, in the greater amount of P6,964.00, was in fact not for salaries and
wages but for the operating expenses of the Project. There was no urgency to
encash that check. Moreover, if it is true that he had that much concern for the
employees, he should have gone to the main office earlier than July 1, 1983, since
the vouchers representing the checks had already been prepared as of June 29,
1983.
The memorandum concludes that in deciding to take the money with him to
Marilao after imprudently withdrawing it from the main office, the petitioner was
assuming a risk from which he cannot now be excused after the loss of the money
as a result of the robbery to which it was unreasonably exposed. In any event, the
burden of proof in petitions for relief from money accountability rests with the
petitioner, who has not clearly established that the loss of the money was not the
result of his negligence.
Section 638 of the Revised Administrative Code reads as follows:
Section 638. Credit for loss occurring in transit or due to casualty —
Notice to Auditor. — When a loss of government funds or property occurs
while the same is in transit or is caused by fire, theft, or other casualty,
the officer accountable therefor or having custody thereof shall
immediately notify the Auditor General, or the provincial auditor,
according as a matter is within the original jurisdiction of the one or the
other, and within thirty days or such longer period as the Auditor, or
provincial auditor, may in the particular case allow, shall present his
application for relief, with the available evidence in support thereof. An
officer who fails to comply with this requirement shall not be relieved of
liability or allowed credit for any such loss in the settlement of his
accounts.
This provision has since then been reiterated, with some slight modification, in
Section 73 of P.D. No. 1445, otherwise known as the "Government Auditing Code
of the Philippines," which was promulgated on June 11. 1978.
Applying the letter and spirit of the above-mentioned laws, and after considering
the established facts in the light of the arguments of the parties, this Court
inclines in favor of the petitioner.
Hindsight is a cruel judge. It is so easy to say, after the event, that one should
have done this and not that or that he should not have acted at all, or else this
problem would not have arisen at all. That is all very well as long as one is
examining something that has already taken place. One can hardly be wrong in
such a case. But the trouble with this retrospective assessment is that it assumes
for everybody an uncanny prescience that will enable him by some mysterious
process to avoid the pitfalls and hazards that he is expected to have foreseen. It
does not work out that way in real life. For most of us, all we can rely on is a
reasoned conjecture of what might happen, based on common sense and our own
experiences, or our intuition, if you will, and without any mystic ability to peer
into the future. So it was with the petitioner.
It is pointless to argue that Hernandez should have encashed the vouchers earlier
because they were dated anyway on June 29, 1983. He was not obliged to encash
the checks earlier and then again there might have been any number of reasons
why he did so only on July 1, 1983. The point is that he did encash the checks on
that date and took the money to Marilao and not Ternate in view of the lateness
of the hour. The question before us is whether these acts are so tainted with
negligence or recklessness as to justify the denial of the petitioner's request for
relief from accountability for the stolen money.
It seems to us that the petitioner was moved only by the best of motives when he
encashed the checks on July 1, 1983, so his co-employees in Ternate could collect
their salaries and wages the following day. Significantly, although this was a non-
working day, he was intending to make the trip to his office the following day for
the unselfish purpose of accommodating his fellow workers. The other alternative
was to encash the check is on July 5, 1983, the next working day after July 1,
1983, which would have meant a 5-day wait for the payment of the said salaries
and wages. Being a modest employee himself, Hernandoz must have realized the
great discomfort it would cause the laborer who were dependent on their wages
for their sustenance and were anxious to collect their pay as soon as possible.
For such an attitude, Hernandez should be commended rather than faulted.
As for Hernandez's choice between Marilao, Bulacan, and Ternate, Cavite, one
could easily agree that the former was the safer destination, being nearer, and in
view of the comparative hazards in the trips to the two places. It is true that the
petitioner miscalculated, but the Court feels he should not be blamed for that.
The decision he made seemed logical at that time and was one that could be
expected of a reasonable and prudent person. And if, as it happened, the two
robbers attacked him in broad daylight in the jeep while it was on a busy
highway, and in the presence of other passengers, it cannot be said that all this
was the result of his imprudence and negligence. This was undoubtedly a
fortuitous event covered by the said provisions, something that could not have
been reasonably foreseen although it could have happened, and did.
We find, in sum, that under the circumstances as above narrated, the petitioner is
entitled to be relieved from accountability for the money forcibly taken from him
in the afternoon of July 1, 1983. To impose such liability upon him would be to
read the law too sternly when it should be softened by the proven facts.
ACCORDINGLY, the petition is GRANTED, without any pronouncement as to costs.
It is so ordered.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.

Footnotes
1 Rollo, p. 8.
2 Ibid., p. 19.
3 Id., p. 26.
4 Id., pp, 27-28.
5 Id., p. 29.
6 Id., p. 31.
7 Id., pp. 126-127.
8 Id., pp. 188-189.
 THIRD DIVISION Abrasions:
G.R. No. L-87584 June 16, 1992 back lumbar region, horizontal, across midline, from
left to right; hand right, palm, near wrist; hand left,
GOTESCO INVESTMENT CORPORATION, petitioner, index finger, dorsum, proximal phalanx.
vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents. Conclusion, cerebral.
X-Ray — Skull; Thoraco-lumbar
DAVIDE. JR., J.: region — All negative.
Assailed in this petition for review under Rule 45 of the Rules of Court are both CONCLUSIONS
the Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March
1. Physical injuries rioted on the subject.
1989 2 of the respondent Court of Appeals in CA-G.R. CV No. 09699 which,
respectively affirmed in toto the decision of Branch XXI of the Regional Trial 2. That under normal condition in the absence
Court of Cebu in Civil Case No. R-22567 entitled "Gloria Chatto, et al. versus of complication, said physical injuries will
Gotesco Investment Corporation", and denied petitioner's motion to reconsider require medical attendance and/or
the same. incapacitate the subject for a period of from
two to four weeks.
The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina
Delza E. Chatto the sum of P10,000.00 as moral damages and the plaintiff Gloria On the other hand, the findings on plaintiff Gloria Chatto per
E. Chatto the sum of P49,050.00 as actual and consequential damages, P75,000.00 Medico Legal Certificate (Exh. "D") of Dr. Brion are as follows:
as moral damages and P20,000.00 as attorney's fees, plus the cost of the suit. xxx xxx xxx
These awards, except for the attorney's fees, were to earn interest at the rate of
twelve per cent (12%) per annum beginning from the date the complaint was Physical injuries:
filed, 16 November 1982, until the amounts were fully paid. Lacerated wounds:
The antecedent facts, as found by the trial court and affirmed by the respondent scalp vertex, running across suggittal
Court, are summarized by the latter in the challenged decision as follows: line, from left to right, 3.0 cm
The evidence shows that in the afternoon of June 4, 1982 sutured;
plaintiff Gloria E. Chatto, and her 15-year old daughter, plaintiff Contusion, forearm right, anterior aspect,
Lina Delza E. Chatto went to see the movie "Mother Dear" at upper third.
Superama I theater, owned by defendant Gotesco Investment
Abrasions:
Corporation. They bought balcony tickets but even then were
unable to find seats considering the number of people Shoulder and upper third, arm right,
patronizing the movie. Hardly ten (10) minutes after entering posterior aspect, linear; backright,
the theater, the ceiling of its balcony collapsed. The theater scapular region, two in number,
was plunged into darkness and pandemonium ensued. Shocked linear; elbow right, posterior aspect;
and hurt, plaintiffs managed to crawl under the fallen ceiling. forearm right, anterior aspect,
As soon as they were able to get out to the street they walked middle third.
the nearby FEU Hospital where they were confined and treated Concusion (sic), cerebral.
for one (1) day.
X-Ray — Skull — Negative.
The next day, they transferred to the UST hospital. Plaintiff Cervical spines Straightening of cervical spine,
Gloria Chatto was treated in said hospital from June 5 to June probably to muscular spasm.
19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico
Legal Certificate (Exh, "C") issued by Dr. Ernesto G. Brion, CONCLUSIONS:
plaintiff Lina Delza Chatto suffered the following injuries: 1. Physical injuries noted on subject.
Physical injuries: 2. That under normal condition, in the
Contusions: absence of complication, said physical injuries
will require medical attendance and/or
forehead and drental region, scalp left with hematoma; incapacitate the subject for a period of from
chest anterior upper bilateral; back right, scapular two to four weeks.
region; back, mid-portion, thoraco-lumbar regions,
bilateral Due to continuing pain in the neck, headache and dizziness,
plaintiff went to Illinois, USA in July 1982 for further treatment
 (Exh "E"). She was treated at the Cook County Hospital in
Chicago, Illinois. She stayed in the U.S. for about three (3)
months during which time she had to return to the Cook County
Hospital five (5) or, six (6) times.
Defendant tried to avoid liability by alleging that the collapse of
the ceiling of its theater was done due to force majeure. It
maintained that its theater did not suffer from any structural or
construction defect. (Exh. 1, 2, 3, 4, & 5) 3
In justifying its award of actual or compensatory and moral damages and
attorney's fees, the trial court said:
It has been established thru the uncontradicted testimony of
Mrs. Chatto that during the chaos and confusion at the theater
she lost a pair of earrings worth P2,500 and the sum of
P1,000.00 in cash contained in her wallet which was lost; and
that she incurred the following expenses: P500.00 as
transportation fare from Cebu City to Manila on the first leg of
her trip to the United States; P350.00 for her passport; and
P46,978.00 for her expense relative to her treatment in the
United States, including the cost of a round-trip ticket
(P11,798.00) hospital and medical bills and other attendant
expenses. The total is P51,328.00, which is more than the sum
of P49,050.00 claimed in the complaint, hence should be
reduced accordingly.
The same testimony has also established that Mrs. Chatto
contracted to pay her counsel the sum of P20,000.00, which this
court considers reasonable considering, among other things, the
professional standing of work (sic) involved in the prosecution of
this case. Such award of attorney's fees is proper because the
defendant's omission to provide the plaintiffs proper and
adequate safeguard to life and limb which they deserved as
patrons to (sic) its theater had compelled the plaintiffs to hire
the services of a counsel, file this case and prosecute it, thus
incurring expenses to protect their interest.
The plaintiffs are entitled to moral damages, which are the
direct and proximate result of the defendants gross negligence
and omission. Such moral damages include the plaintiffs'
physical suffering, mental anguish, fright and serious anxiety.
On the part of Mrs. Chatto, who obviously suffered much more
pain, anguish, fright and anxiety than her daughter Lina Delza,
such damages are compounded by the presence of permanent
deformities on her body consisting of a 6-inch scar on the head
and a 2-inch scar on one arm. The court believes that the sum
of P75,000.00 for plaintiff Gloria E. Chatto and the sum of
P10,000.00 for plaintiff Lina Delza E. Chatto would be
reasonable. 4
Petitioner submitted before the respondent Court the following assignment of
errors:
I. THE LOWER COURT ERRED IN ADMITTING PATENTLY —
INADMISSIBLE EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES
AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS
AND CERTIFICATIONS OF THE CONDITION OF THE BUILDING,
PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE
CITY ENGINEER'S OFFICE OF MANILA.
II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF
THE BALCONY COLLAPSED DUE TO SOME STRUCTURAL
CONSTRUCTION OR ARCHITECTURAL DEFECT," AND NOT DUE TO
AN ACT OF GOD OR FORCE MAJEURE.
III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT
WAS GROSSLY NEGLIGENT IN FAILING "TO CAUSE PROPER AND
ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE
BUILDING." 5
In its decision, respondent Court found the appeal to be without merit. As to the
first assigned error, it ruled that the trial court did not err in admitting the
exhibits in question in the light of the ruling in Abrenica vs. Gonda 6 on waiver of
objections arising out of failure to object at the proper time Thus:
Exh. "A", the letter dated June 9, 1982 of Tina Mojica of
defendant-appellant to the Administrator of UST Hospital
expressing their willingness to guaranty the payment of the
hospital bills of the plaintiffs-appellees was not objected to in
trial court for lack of authentication. It is too late to raise that
objection on appeal.
Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at
FEU, UST and Cook County Hospital. It may be true that the
doctors who prepared them were not presented as witnesses.
Nonetheless, the records will show that counsel for defendant-
appellant cross examined plaintiff-appellee Gloria Chatto on the
matter especially the content of Exhibits "F" to F-13",
Consequently, defendant-appellant is estopped from claiming
lack of opportunity to verify their textual truth. Moreover, the
record is full of the testimony of plaintiffs-appellees on the
injuries they sustained from the collapse of the ceiling of
defendant-appellant's theater. Their existence is crystal clear.
Exh. "E" is the flight coupon and passenger ticket (Northwest
Orient) of plaintiff-appellee Gloria Chatto from the Philippines
to the U.S. (Manila-Chicago-Manila). Certainly, this is relevant
evidence on whether or not she actually travelled (sic) to the
U.S. for further medical treatment. Defendant-appellant's
contention that the best evidence on the issue is her passport is
off the mark. The best evidence rule applies only if the contents
of the writing are directly in issue. In any event, her passport is
not the only evidence on the matter.
Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's
expenses in the U.S in her own handwriting. Defendant-
appellant's objection that it is self serving goes to the weight of
the evidence. The truth of Exh. "G" could be and should have
 been tested by cross examination. It cannot be denied however A Yes, sir.
that such expenses are within the personal knowledge of the Q And do you personally inspect these buildings under
witness. your construction?
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee A Yes, whenever I can.
Gloria Chatto as part of her treatment in the U.S. Defendant-
appellant objects to its admission because it is self-serving. The Q In the case of Gotesco Cinema 1 and 2, had you any
objection is without merit in view of the evidence on record chance to inspect this building?
that plaintiff-appellee Gloria Chatto sustained head injuries A Yes, sir.
from the collapse of the ceiling of defendant-appellant's
Q Particularly in the months of May and June of 1982?
theater. In fact, counsel for defendant-appellant cross
examined the said witness on the medical finding of Cook A Yes, in that (sic) months.
County Hospital that she was suffering from neck muscle spasm. Q Now, you said also that sometime in June 1982 you
(TSN, April 17, 1984, p. 11) The wearing of a surgical neckwear remember that one of these theaters.
has proper basis.
Atty. Barcelona: continuing
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in
the U.S. showing the use of her surgical neckwear. Defendant- particularly Superama 1 the ceiling had collapsed?
appellant objects to this exhibit its hearsay because the A Yes, sir.
photographer was not presented as a witness. The objection is
Q Did you conduct an investigation?
incorrect. In order that photographs or pictures may be given in
evidence, they must be shown to be a true and faithful A Yes, sir.
representation of the place or objects to which they refer. The Q What was your finding?
photographs may be verified either by the photographer who
took it or by any person who is acquainted with the object A There was really nothing, I cannot explain. I could
represented and testify (sic) that the photograph faithfully not give any reason why the ceiling collapsed.
represents the object. (Moran, Comments in the Rules of Court, Q Could it not be due to any defect of the plant?
Vol. V, 1980 ed., p. 80 citing New York Co vs. Moore, 105 Fed. Atty. Florido:
725) In the case at bar, Exh. "I" was identified by plaintiff
appellee Gloria Chatto. 7 Already answered, Your Honor, he could not give any
reason.
As to the, other assigned errors, the respondent Court ruled:
COURT:
The lower court did not also err in its finding that the collapse
of the ceiling of the theater's balcony was due to construction Objection sustained.
defects and not to force majeure. It was the burden defendant- Atty. Barcelona:
appellant to prove that its theater did not suffer from any
Q When that incident happened, did the owner Gotesco
structural defect when it was built and that it has been well
Investment Corporation went (sic) to you to call your
maintained when the incident occurred. This is its Special and
attention?
Affirmative Defense and it is incumbent on defendant-appellant
to prove it. Considering the collapse of the ceiling of its A Yes, sir.
theater's balcony barely four (4) years after its construction, it Atty. Florido:
behooved defendant-appellant to conduct an exhaustive study
of the reason for the tragic incident. On this score, the effort of Your Honor, we noticed (sic) series of leading
defendant-appellant borders criminal nonchalance. Its witness questions, but this time we object.
Jesus Lim Ong testified: COURT:
Atty. Barcelona: Sustained.
Q By the way, you made mention a while ago that your Atty. Barcelona;
staff of engineer and architect used to make round Q What did the owner of Gotesco do when the ceiling
inspection of the building under your construction the collapsed, upon knowing that one of the cinemas you
of these buildings is Gotesco Cinema 1 and 2, subject maintained collopsed?
matter of this case, and you also made a regular round
up or inspection of the theater. Is that right? A He asked for a thorough investigation.
 Q And as a matter of fact as asked you to investigate?
A Yes, sir.
Q Did you come out with any investigation report.
A There was nothing to report.
Clearly, there was no authoritative investigation conducted by
impartial civil and structural engineers on the cause of the
collapse of the theater's ceiling, Jesus Lim Ong is not an
engineer, He is a graduate of architecture from the St. Louie
(sic) University in Baguio City. It does not appear he has passed
the government examination for architects. (TSN, June 14, 1985
p. 4) In fine, the ignorance of Mr. Ong about the cause of the
collapse of the ceiling of their theater cannot be equated, as an
act, of God. To sustain that proposition is to introduce sacrilege
in our jurisprudence. 8
Its motion for reconsideration of the decision having been denied by the
respondent Court, petitioner filed this petition assailing therein the challenged
decision on the following grounds:
1. The basis of the award for damages stems from medical
reports issued by private physicians of local hospitals without
benefit of cross-examination and more seriously, xerox copies of
medical findings issued by American doctors in the United States
without the production of originals, without the required
consular authentication for foreign documents, and without the
opportunity for cross-examination.
2. The damage award in favor of respondents is principally,
made depend on such unreliable, hearsay and incompetent
evidence for which an award of more than P150,000.00 in
alleged actual, moral and I "consequential" damages are
awarded to the prejudice of the right of petitioner to due
process. . . .
3. Unfortunately, petitioners evidence of due diligence in the
care and maintenance of the building was not seriously
considered by the Court of Appeals, considering that frequent
inspections and maintenance precautions had to be observed by
hired engineers of petitioner, which enjoys an unsullied
reputation in the business of exhibiting movies in a chain of
movie houses in Metro Manila. 9
After the private respondents filed their Comment as required in the Resolution of
17 May 1989, this Court resolved to give due course to the petition and required
the parties to file their respective Memoranda. Subsequently, private
respondents, in a motion, prayed for leave to adopt their Comment as their
Memorandum, which this Court granted on 6 December 1989. Petitioner filed its
Memorandum on 10 January 1990.
The petition presents both factual and legal issues. The first relates to the cause
of the collapse of the ceiling while the latter involves the correctness of the
admission of the exhibits in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this Court in cases brought to it
from the Court of Appeals is limited to reviewing and revising the errors of law
imputed to it, its findings of fact being conclusive, 10 except only where a case is
shown as coming under the accepted exception. 11 None of the exceptions which
this Court has painstakingly summarized in several cases 12 has been shown to
exist in this petition. Petitioner's claim that the collapse of the ceiling of the
theater's balcony was due to force majeure is not even founded on facts because
its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason
why the ceiling collapsed." Having interposed it as a defense, it had the burden to
prove that the collapse was indeed caused by force majeure. It could not have
collapsed without a cause. That Mr. Ong could not offer any explanation does not
imply force majeure. As early as eighty-five (85) years ago, this Court had the
occasion to define force majeure. In Pons y Compañia vs. La Compañia
Maritima 13 this Court held:
An examination of the Spanish and American authorities
concerning the meaning of force majeureshows that the
jurisprudence of these two countries practically agree upon the
meaning of this phrase.
Blackstone, in his Commentaries on English Law, defines it as —
Inevitable accident or casualty; an accident produced
by any physical cause which is irresistible; such as
lightning. tempest, perils of the sea, inundation, or
earthquake; the sudden illness or death of a person. (2
Blackstone's Commentaries, 122; Story in Bailments,
sec. 25.)
Escriche, in his Diccionario de Legislacion y
Jurisprudencia, defines fuerza mayor as follows.
The event which we could neither foresee nor resist; as
for example, the lightning stroke, hail, inundation,
hurricane, public enemy, attack by robbers; Vis major
est, says Cayo, ea quae consilio humano neque
provideri neque vitari potest. Accident and mitigating
circumstances.
Bouvier defines the same as —
Any accident due to natural cause, directly exclusively
without human intervention, such as could not have
been prevented by any kind of oversight, pains and
care reasonably to have been expected. (Law Reports,
1 Common Pleas Division, 423; Law Reports, 10
Exchequer, 255.)
Corkburn, chief justice, in a well considered English case (1
Common Pleas Division, 34, 432), said that were a captain —
Uses all the known means to which prudent and
experienced captains ordinarily have recourse, he does
all that can be reasonably required of him; and if,
under such circumtances, he is overpowered by storm
or other natural agency, he is within the rule which
gives immunity from the effects of such vis major.
 The term generally applies, broadly speaking, to natural
accidents, such as those caused by lightning, earthquake,
tempests, public enemy ,etc.
Petitioner could have easily discovered the cause of the collapse if indeed it were
due to force majeure. To Our mind, the real reason why Mr. Ong could not
explain the cause or reason is that either he did not actually conduct the
investigation or that he is, as the respondent Court impliedly held, incompetent.
He is not an engineer, but an architect who had not even passed the government's
examination. Verily, post-incident investigation cannot be considered as material
to the present proceedings. What is significant is the finding of the trial court,
affirmed by the respondent Court, that the collapse was due to construction
defects. There was no evidence offered to overturn this finding. The building was
constructed barely four (4) years prior to the accident in question. It was not
shown that any of the causes denominates as force majeure obtained immediately
before or at the time of the collapse of the ceiling. Such defects could have been
easily discovered if only petitioner exercised due diligence and care in keeping
and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there
was no adequate inspection of the premises before the date of the accident. His
answers to the leading questions on inspection disclosed neither the exact dates
of said. inspection nor the nature and extent of the same. That the structural
designs and plans of the building were duly approved by the City Engineer and the
building permits and certificate of occupancy were issued do not at all prove that
there were no defects in the construction, especially as regards the ceiling,
considering that no testimony was offered to prove that it was ever inspected at
all.
It is settled that:
The owner or proprietor of a place of public amusement
impliedly warrants that the premises, appliances and
amusement devices are safe for the purpose for which they are
designed, the doctrine being subject to no other exception or
qualification than that he does not contract against unknown
defects not discoverable by ordinary or reasonable means. 14
This implied warranty has given rise to the rule that:
Where a patron of a theater or other place of public amusement
is injured, and the thing that caused the injury is wholly and
exclusively under the control and management of the
defendant, and the accident is such as in the ordinary course of
events would not have happened if proper care had been
exercised, its occurrence raises a presumption or permits of an
inference of negligence on the part of the defendant. 15
That presumption or inference was not overcome by the petitioner.
Besides, even assuming for the sake of argument that, as petitioner vigorously
insists, the cause of the collapse was due to force majeure, petitioner would still
be liable because it was guilty of negligence, which the trial court denominated
as gross. As gleaned from Bouvier's definition of and Cockburn's elucidation
on force majeure for one to be exempt from any liability because of it, he must
have exercised care, i.e., he should not have been guilty of negligence.
Turning now to the legal issue posed in this petition, the error lies not in the
disquisitions of the respondent Court, but in the sweeping conclusion of
petitioner. We agree with the respondent Court that petitioner offered no
reasonable objection to the exhibits. More than this, however, We note that the
exhibits were admitted not as independent evidence, but, primarily, as part of
the testimony of Mrs. Gloria Chatto. Neither were the exhibits made the main
basis for the award of damages. As to the latter, including the award for
attorney's fees, the testimonial evidence presented is sufficient to support the
same; moreover, petitioner was not deprived of its right to test the, truth or
falsity of private respondents' testimony through cross-examination or refute their
claim by its own evidence. It could not then be successfully argued by petitioner
that the admission of the exhibits violated the hearsay rule. As this Court sees it,
the trial court admitted such merely as independently relevant statements, which
was not objectionable, for:
Where, regardless of the truth or the falsity of a statement, the
fact that it has been made is relevant, the hearsay rule does not
apply, but the statement may be shown. Evidence as to the
making of such statement is not secondary but primary, for the
statement itself may constitute a fact; in issue, or be
circumstantially relevant as to the existence of such a fact. 16
Furthermore, and with particular reference to the documents issued in the United
States of America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection
thereto was not that they are hearsay. In its written comment and/or opposition
to documentary exhibits, petitioner objected to their admission on the following
grounds only:
. . . for being incompetent evidence considering that the same
were not duly authenticated by the responsible consular and/or
embassy officials authorized to authenticate the said
documents. 17
All told, the instant petition is without merit.
WHEREFORE, judgment is hereby rendered DENYING the instant petition with
costs against petitioner.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin, and Romero, JJ., concur.
Footnotes
1 Per Associate Justice Reynato S. Puno, concurred in by
Associate Justices Alfredo M. Marigomen and Regina G. Ordoñez-
Benitez; Rollo, 24, et seq.
2 Id., 36-37.
3 Rollo, 24-26.
4 Rollo, 26-27.
5 Rollo, 27-28.
6 34 Phil. 739 [1916]
7 Rollo, 29-30.
8 Rollo, 30-32.
9 Rollo, 6-7.
10 Chan vs. Court of Appeals, 33 SCRA 737 [1970], citing a host
of cases.
11 FNCB Finance vs. Estavillo. 192 SCRA 514 [1990].
12 See Remalante vs. Tibe, 158 SCRA 138 [1988].
13 9 Phil. 125, 129 [1907].
14 86 C.J.S. 718.
15 Id., 718.
16 FRANCISCO, V.J., The Revised Rules of Court in the
Philippines, vol. VII, Part I, 1973 ed., 438.
17 Page 13 of Petitioner Rollo, 17.
 SECOND DIVISION
G.R. No. L-36481-2 October 23, 1982
AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs-appellees,
vs.
PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.
Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando.
Benedicto, Sumbingco & Associate for appellee Clara Uy Bico.
Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant.
ESCOLIN, J.:
This appeal, originally brought to the Court of Appeals, seeks to set aside the
decision of the Court of First Instance of Negros Occidental in Civil Cases Nos.
7354 and 7428, declaring appellant Philippine Steam Navigation liable for
damages for the loss of the appellees' cargoes as a result of a fire which gutted
the Bureau of Customs' warehouse in Pulupandan, Negros Occidental.
The Court of Appeals certified the case to Us because only pure questions of law
are raised therein.
The facts culled from the pleadings and the stipulations submitted by the parties
are as follows:
On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on
board the appellant's vessel, FS-176, for carriage from Manila to Pulupandan,
Negros Occidental, the following cargoes, to wit:
Clara Uy Bico —
1,528 cavans of rice valued
at P40,907.50;
Amparo Servando —
44 cartons of colored paper,
toys and general merchandise valued at
P1,070.50;
1
as evidenced by the corresponding bills of lading issued by the appellant.
Upon arrival of the vessel at Pulupandan, in the morning of November 18, 1963,
the cargoes were discharged, complete and in good order, unto the warehouse of
the Bureau of Customs. At about 2:00 in the afternoon of the same day, said
warehouse was razed by a fire of unknown origin, destroying appellees' cargoes.
Before the fire, however, appellee Uy Bico was able to take delivery of 907
cavans of rice 2 Appellees' claims for the value of said goods were rejected by the
appellant.
On the bases of the foregoing facts, the lower court rendered a decision, the
decretal portion of which reads as follows:
WHEREFORE, judgment is rendered as follows:
1. In case No. 7354, the defendant is hereby ordered to pay the
plaintiff Amparo C. Servando the aggregate sum of P1,070.50
with legal interest thereon from the date of the filing of the
complaint until fully paid, and to pay the costs.
2. In case No. 7428, the defendant is hereby ordered to pay to
plaintiff Clara Uy Bico the aggregate sum of P16,625.00 with
legal interest thereon from the date of the filing of the
complaint until fully paid, and to pay the costs.
Article 1736 of the Civil Code imposes upon common carriers the duty to observe
extraordinary diligence from the moment the goods are unconditionally placed in
their possession "until the same are delivered, actually or constructively, by the
carrier to the consignee or to the person who has a right to receive them, without
prejudice to the provisions of Article 1738. "
The court a quo held that the delivery of the shipment in question to the
warehouse of the Bureau of Customs is not the delivery contemplated by Article
1736; and since the burning of the warehouse occurred before actual or
constructive delivery of the goods to the appellees, the loss is chargeable against
the appellant.
It should be pointed out, however, that in the bills of lading issued for the cargoes
in question, the parties agreed to limit the responsibility of the carrier for the
loss or damage that may be caused to the shipment by inserting therein the
following stipulation:
Clause 14. Carrier shall not be responsible for loss or damage to
shipments billed 'owner's risk' unless such loss or damage is due
to negligence of carrier. Nor shall carrier be responsible for loss
or damage caused by force majeure, dangers or accidents of the
sea or other waters; war; public enemies; . . . fire . ...
We sustain the validity of the above stipulation; there is nothing therein that is
contrary to law, morals or public policy.
Appellees would contend that the above stipulation does not bind them because it
was printed in fine letters on the back-of the bills of lading; and that they did not
sign the same. This argument overlooks the pronouncement of this Court in Ong
Yiu vs. Court of Appeals, promulgated June 29, 1979, 3 where the same issue was
resolved in this wise:
While it may be true that petitioner had not signed the plane
ticket (Exh. '12'), he is nevertheless bound by the provisions
thereof. 'Such provisions have been held to be a part of the
contract of carriage, and valid and binding upon the passenger
regardless of the latter's lack of knowledge or assent to the
regulation'. It is what is known as a contract of 'adhesion', in
regards which it has been said that contracts of adhesion
wherein one party imposes a ready made form of contract on
the other, as the plane ticket in the case at bar, are contracts
not entirely prohibited. The one who adheres to the contract is
in reality free to reject it entirely; if he adheres, he gives his
consent." (Tolentino, Civil Code, Vol. IV, 1962 Ed., p. 462, citing
Mr. Justice J.B.L. Reyes, Lawyer's Journal, Jan. 31, 1951, p. 49).
Besides, the agreement contained in the above quoted Clause 14 is a mere
iteration of the basic principle of law written in Article 1 1 7 4 of the Civil Code:
Article 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature
of the obligation requires the assumption of risk, no person shall
 be responsible for those events which could not be foreseen, or I concur. Under article 1738 of the Civil Code "the extraordinary liability of the
which, though foreseen, were inevitable. common carrier continues to be operative even during the time the goods are
Thus, where fortuitous event or force majeure is the immediate and proximate stored in the warehouse of the carrier at the place of destination, until the
cause of the loss, the obligor is exempt from liability for non-performance. The consignee has been advised of the arrival of the goods and has had reasonable
Partidas, 4 the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito' opportunity thereafter to remove them or otherwise dispose of them".
as 'an event that takes place by accident and could not have been foreseen. From the time the goods in question were deposited in the Bureau of Customs'
Examples of this are destruction of houses, unexpected fire, shipwreck, violence warehouse in the morning of their arrival up to two o' clock in the afternoon of
of robbers.' the same day, when the warehouse was burned, Amparo C. Servando and Clara Uy
In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada Bico, the consignees, had reasonable opportunity to remove the goods. Clara had
Espanola 5 says: "In a legal sense and, consequently, also in relation to contracts, removed more than one-half of the rice consigned to her.
a 'caso fortuito' presents the following essential characteristics: (1) the cause of Moreover, the shipping company had no more control and responsibility over the
the unforeseen and unexpected occurrence, or of the failure of the debtor to goods after they were deposited in the customs warehouse by the arrastre and
comply with his obligation, must be independent of the human will; (2) it must be stevedoring operator.
impossible to foresee the event which constitutes the 'caso fortuito', or if it can No amount of extraordinary diligence on the part of the carrier could have
be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to prevented the loss of the goods by fire which was of accidental origin.
render it impossible for the debtor to fulfill his obligation in a normal manner;
and (4) the obligor must be free from any participation in the aggravation of the Under those circumstances, it would not be legal and just to hold the carrier
injury resulting to the creditor." In the case at bar, the burning of the customs liable to the consignees for the loss of the goods. The consignees should bear the
warehouse was an extraordinary event which happened independently of the will loss which was due to a fortuitous event.
of the appellant. The latter could not have foreseen the event.
There is nothing in the record to show that appellant carrier ,incurred in delay in
the performance of its obligation. It appears that appellant had not only notified Footnotes
appellees of the arrival of their shipment, but had demanded that the same be 1 Exhibits A, B, C, D, E, F, G and H.
withdrawn. In fact, pursuant to such demand, appellee Uy Bico had taken delivery 2 Par. IV, Complaint; p. 23, Record on Appeal.
of 907 cavans of rice before the burning of the warehouse. Page 836
3 91 SCRA 224.
Nor can the appellant or its employees be charged with negligence. The storage 4 Law 11, Title 33, Partida 7.
of the goods in the Customs warehouse pending withdrawal thereof by the 5 Enciclopedia Juridicada Espanola.
appellees was undoubtedly made with their knowledge and consent. Since the 6 43 Phil. 511.
warehouse belonged to and was maintained by the government, it would be unfair
to impute negligence to the appellant, the latter having no control whatsoever
over the same.
The lower court in its decision relied on the ruling laid down in Yu Biao Sontua vs.
Ossorio 6, where this Court held the defendant liable for damages arising from a
fire caused by the negligence of the defendant's employees while loading cases of
gasoline and petroleon products. But unlike in the said case, there is not a shred
of proof in the present case that the cause of the fire that broke out in the
Custom's warehouse was in any way attributable to the negligence of the
appellant or its employees. Under the circumstances, the appellant is plainly not
responsible.
WHEREFORE, the judgment appealed from is hereby set aside. No costs.
SO ORDERED.
Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ.,
concur.

Separate Opinions
AQUINO, J., concurring:
 THIRD DIVISION
G.R. Nos. 103442-45 May 21, 1993
NATIONAL POWER CORPORATION, ET AL., petitioners,
vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.
The Solicitor General for plaintiff-appellee.
Ponciano G. Hernandez for private respondents.
DAVIDE, JR., J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of
Court urging this Court to set aside the 19 August 1991 consolidated Decision of
the Court of Appeals in CA.-G.R. CV Nos. 27290-93 1 which reversed the Decision
of Branch 5 of the then Court of First Instance (now Regional Trial Court) of
Bulacan, and held petitioners National Power Corporation (NPC) and Benjamin
Chavez jointly and severally liable to the private respondents for actual and moral
damages, litigation expenses and attorney's fees.
This present controversy traces its beginnings to four (4) separate complaints 2 for
damages filed against the NPC and Benjamin Chavez before the trial court. The
plaintiffs therein, now private respondents, sought to recover actual and other
damages for the loss of lives and the destruction to property caused by the
inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The
flooding was purportedly caused by the negligent release by the defendants of
water through the spillways of the Angat Dam (Hydroelectric Plant). In said
complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and
maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop,
Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at
the time of the incident in question; 3) despite the defendants' knowledge, as
early as 24 October 1978, of the impending entry of typhoon "Kading," they failed
to exercise due diligence in monitoring the water level at the dam; 4) when the
said water level went beyond the maximum allowable limit at the height of the
typhoon, the defendants suddenly, negligently and recklessly opened three (3) of
the dam's spillways, thereby releasing a large amount of water which inundated
the banks of the Angat River; and 5) as a consequence, members of the household
of the plaintiffs, together with their animals, drowned, and their properties were
washed away in the evening of 26 October and the early hours of 27 October
1978. 3
In their Answers, the defendants, now petitioners, alleged that: 1) the NPC
exercised due care, diligence and prudence in the operation and maintenance of
the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the
selection of its employees; 3) written notices were sent to the different
municipalities of Bulacan warning the residents therein about the impending
release of a large volume of water with the onset of typhoon "Kading" and advise
them to take the necessary precautions; 4) the water released during the typhoon
was needed to prevent the collapse of the dam and avoid greater damage to
people and property; 5) in spite of the precautions undertaken and the diligence
exercised, they could still not contain or control the flood that resulted and; 6)
the damages incurred by the private respondents were caused by a fortuitous
event or force majeure and are in the nature and character of damnum absque
injuria. By way of special affirmative defense, the defendants averred that the
NPC cannot be sued because it performs a purely governmental function. 4
Upon motion of the defendants, a preliminary hearing on the special defense was
conducted. As a result thereof, the trial court dismissed the complaints as against
the NPC on the ground that the provision of its charter allowing it to sue and be
sued does not contemplate actions based on tort. The parties do not, however,
dispute the fact that this Court overruled the trial court and ordered the
reinstatement of the complaints as against the NPC. 5
Being closely interrelated, the cases were consolidated and trial thereafter
ensued.
The lower court rendered its decision on 30 April 1990 dismissing the complaints
"for lack of sufficient and credible evidence." 6 Consequently, the private
respondents seasonably appealed therefrom to the respondent Court which then
docketed the cases as CA-G.R. CV Nos. 27290-93.
In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed
the appealed decision and awarded damages in favor of the private respondents.
The dispositive portion of the decision reads:
CONFORMABLY TO THE FOREGOING, the joint decision appealed
from is hereby REVERSED and SET ASIDE, and a new one is
hereby rendered:
1. In Civil Case No. SM-950, ordering defendants-appellees to
pay, jointly and severally, plaintiffs-appellants, with legal
interest from the date when this decision shall become final and
executory, the following:
A. Actual damages, to wit:
1) Gaudencio C. Rayo, Two Hundred Thirty One
Thousand Two Hundred Sixty Pesos (P231,260.00);
2) Bienvenido P. Pascual, Two Hundred Four Thousand
Five Hundred Pesos (P204.500.00);
3) Tomas Manuel, One Hundred Fifty Five Thousand
Pesos (P155,000.00);
4) Pedro C. Bartolome, One Hundred Forty Seven
Thousand Pesos (P147,000.00);.
5) Bernardino Cruz, One Hundred Forty Three Thousand
Five Hundred Fifty Two Pesos and Fifty Centavos
(P143,552.50);
6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos
(P57,500.00);
7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);
8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos
(P29,080.00); and
B. Litigation expenses of Ten Thousand Pesos (P10,000.00);
2. In Civil case No. SM-951, ordering defendants-appellees to
pay jointly and severally, plaintiff-appellant, with legal interest
from the date when this decision shall have become final and
executory, the following :
A. Actual damages of Five Hundred Twenty Thousand
Pesos (P520,000.00);.
B. Moral damages of five hundred Thousand Pesos
(P500,000.00); and.
 C. Litigation expenses of Ten Thousand Pesos
(P10,000.00);.
3. In Civil Case No. SM-953, ordering defendants-appellees to
pay, jointly and severally, with legal interest from the date
when this decision shall have become final and executory;
A. Plaintiff-appellant Angel C. Torres:
1) Actual damages of One Hundred Ninety Nine Thousand One
Hundred Twenty Pesos (P199,120.00);
2) Moral Damages of One Hundred Fifty Thousand Pesos
(P150,000.00);
B. Plaintiff-appellant Norberto Torres:
1) Actual damages of Fifty Thousand Pesos (P50,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Rodelio Joaquin:
1) Actual damages of One Hundred Thousand Pesos
(P100,000.00);
2) Moral damages of One Hundred Thousand Pesos
(P100,000.00); and
D. Plaintifsf-appellants litigation expenses of Ten Thousand
Pesos (P10,000.00);
4. In Civil case No. SM-1247, ordering defendants-appellees to
pay, jointly and severally, with legal interest from the date
when this decision shall have become final and executory :
A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo
Lorenzo:
1) Actual damages of Two Hundred Fifty Six Thousand
Six Hundred Pesos (P256,600.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
B. Plaintiff-appellant Consolacion Guzman :
1) Actual damages of One Hundred forty Thousand
Pesos (P140,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Virginia Guzman :
1) Actual damages of Two Hundred Five Hundred
Twenty Pesos (205,520.00); and
D. Plaintiffs-appellants litigation expenses of Ten Thousand
Pesos (10,000.00).
In addition, in all the four (4) instant cases, ordering
defendants-appellees to pay, jointly and severally, plaintiffs-
appellants attorney fees in an amount equivalent to 15% of the
total amount awarded.
No pronouncement as to costs. 7
The foregoing judgment is based on the public respondent's conclusion that the
petitioners were guilty of:
. . . a patent gross and evident lack of foresight, imprudence
and negligence . . . in the management and operation of Angat
Dam. The unholiness of the hour, the extent of the opening of
the spillways, And the magnitude of the water released, are all
but products of defendants-appellees' headlessness,
slovenliness, and carelessness. The resulting flash flood and
inundation of even areas (sic) one (1) kilometer away from the
Angat River bank would have been avoided had defendants-
appellees prepared the Angat Dam by maintaining in the first
place, a water elevation which would allow room for the
expected torrential rains. 8
This conclusion, in turn, is anchored on its findings of fact, to wit:
As early as October 21, 1978, defendants-appellees knew of the
impending onslaught of and imminent danger posed by typhoon
"Kading". For as alleged by defendants-appellees themselves,
the coming of said super typhoon was bannered by Bulletin
Today, a newspaper of national circulation, on October 25,
1978, as "Super Howler to hit R.P." The next day, October 26,
1978, said typhoon once again merited a headline in said
newspaper as "Kading's Big Blow expected this afternoon"
(Appellee's Brief, p. 6). Apart from the newspapers, defendants-
appellees learned of typhoon "Kading' through radio
announcements (Civil Case No. SM-950, TSN, Benjamin Chavez,
December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat Dam
can safely hold a normal maximum headwater elevation of 217
meters (Appellee's brief, p. 12; Civil Case No. SM-951, Exhibit "I-
6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247,
Exhibit "G-6").
Yet, despite such knowledge, defendants-appellees maintained
a reservoir water elevation even beyond its maximum and safe
level, thereby giving no sufficient allowance for the reservoir to
contain the rain water that will inevitably be brought by the
coming typhoon.
On October 24, 1978, before typhoon "Kading" entered the
Philippine area of responsibility, water elevation ranged from
217.61 to 217.53, with very little opening of the spillways,
ranging from 1/2 to 1 meter. On October 25, 1978, when
typhoon "Kading" entered the Philippine area of responsibility,
and public storm signal number one was hoisted over Bulacan at
10:45 a.m., later raised to number two at 4:45 p.m., and then
to number three at 10:45 p.m., water elevation ranged from
217.47 to 217.57, with very little opening of the spillways,
ranging from 1/2 to 1 meter. On October 26, 1978, when public
storm signal number three remained hoisted over Bulacan, the
water elevation still remained at its maximum level of 217.00 to
218.00 with very little opening of the spillways ranging from 1/2
to 2 meters, until at or about midnight, the spillways were
suddenly opened at 5 meters, then increasing swiftly to 8, 10,
12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of
October 27, 1978, releasing water at the rate of 4,500 cubic
meters per second, more or less. On October 27, 1978, water
elevation remained at a range of 218.30 to 217.05 (Civil Case
No. SM-950, Exhibits "D" and series, "L", "M", "N", and "O" and
Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-
1"; Civil Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM
1247, Exhibits "F" and "F-1").
xxx xxx xxx
 From the mass of evidence extant in the record, We are
convinced, and so hold that the flash flood on October 27, 1978,
was caused not by rain waters (sic), but by stored waters (sic)
suddenly and simultaneously released from the Angat Dam by
defendants-appellees, particularly from midnight of October 26,
1978 up to the morning hours of October 27,
1978. 9
The appellate court rejected the petitioners' defense that they had sent "early
warning written notices" to the towns of Norzagaray, Angat, Bustos, Plaridel,
Baliwag and Calumpit dated 24 October 1978 which read:
TO ALL CONCERN (sic):
Please be informed that at present our reservoir (dam) is full
and that we have been releasing water intermittently for the
past several days.
With the coming of typhoon "Rita" (Kading) we expect to release
greater (sic) volume of water, if it pass (sic) over our place.
In view of this kindly advise people residing along Angat River to
keep alert and stay in safe places.
BENJAMIN L. CHAVEZ
10
Power Plant Superintendent
because:
Said notice was delivered to the "towns of Bulacan" on October
26, 1978 by defendants-appellees driver, Leonardo Nepomuceno
(Civil Case No. SM-950, TSN, Benjamin Chavez, December 4,
1984, pp. 7-11 and TSN, Leonardo Nepomuceno, March 7, 1985,
pp. 10-12).
Said notice is ineffectual, insufficient and inadequate for
purposes of the opening of the spillway gates at midnight of
October 26, 1978 and on October 27, 1978. It did not prepare or
warn the persons so served, for the volume of water to be
released, which turned out to be of such magnitude, that
residents near or along the Angat River, even those one (1)
kilometer away, should have been advised to evacuate. Said
notice, addressed "TO ALL CONCERN (sic)," was delivered to a
policeman (Civil Case No. SM-950, pp. 10-12 and Exhibit "2-A")
for the municipality of Norzagaray. Said notice was not thus
addressed and delivered to the proper and responsible officials
who could have disseminated the warning to the residents
directly affected. As for the municipality of Sta. Maria, where
plaintiffs-appellants in Civil Case No. SM-1246 reside, said notice
does not appear to have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent
rejected the petitioners' plea that the incident in question was caused by force
majeure and that they are, therefore, not liable to the private respondents for
any kind of damage — such damage being in the nature of damnum absque
injuria.
The motion for reconsideration filed by the petitioners, as well as the motion to
modify judgment filed by the public respondents, 13 were denied by the public
respondent in its Resolution of 27 December 1991. 14
Petitioners thus filed the instant petition on 21 February 1992.
After the Comment to the petition was filed by the private respondents and the
Reply thereto was filed by the petitioners, We gave due course to the petition on
17 June 1992 and directed the parties to submit their respective
Memoranda, 15 which they subsequently complied with.
The petitioners raised the following errors allegedly committed by the respondent
Court :
I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING
OF NAKPIL & SONS V. COURT OF APPEALS AND HOLDING THAT
PETITIONERS WERE GUILTY OF NEGLIGENCE.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE
WRITTEN NOTICES OF WARNING ISSUED BY PETITIONERS WERE
INSUFFICIENT.
III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE
DAMAGE SUFFERED BY PRIVATE RESPONDENTS WAS
NOT DAMNUM ABSQUE INJURIA.
IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE
COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S FEES AND
EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners in G.R. No. 96410,
entitled National Power Corporation, et al., vs. Court of Appeals, et al., 17 which
this Court decided on 3 July 1992. The said case involved the very same incident
subject of the instant petition. In no uncertain terms, We declared therein that
the proximate cause of the loss and damage sustained by the plaintiffs therein —
who were similarly situated as the private respondents herein — was the
negligence of the petitioners, and that the 24 October 1978 "early warning notice"
supposedly sent to the affected municipalities, the same notice involved in the
case at bar, was insufficient. We thus cannot now rule otherwise not only because
such a decision binds this Court with respect to the cause of the inundation of the
town of Norzagaray, Bulacan on 26-27 October 1978 which resulted in the loss of
lives and the destruction to property in both cases, but also because of the fact
that on the basis of its meticulous analysis and evaluation of the evidence
adduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93, public
respondent found as conclusively established that indeed, the petitioners were
guilty of "patent gross and evident lack of foresight, imprudence and negligence in
the management and operation of Angat Dam," and that "the extent of the
opening of the spillways, and the magnitude of the water released, are all but
products of defendants-appellees' headlessness, slovenliness, and
carelessness." 18 Its findings and conclusions are biding upon Us, there being no
showing of the existence of any of the exceptions to the general rule that findings
of fact of the Court of Appeals are conclusive upon this Court. 19 Elsewise stated,
the challenged decision can stand on its own merits independently of Our decision
in G.R. No. 96410. In any event, We reiterate here in Our pronouncement in the
latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good law as
far as the concurrent liability of an obligor in the case of force majeure is
concerned. In the Nakpil case, We held:
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 moral 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 of the Civil Code,
which results in loss or damage, the obligor cannot escape
liability.
The principle embodied in the act of God doctrine strictly
requires that the act must be one occasioned exclusively by the
violence of nature and all human agencies are to be excluded
from creating or entering into the cause of the mischief. When
the effect, the cause of which is to be considered, is found to
be in part the result of the participation of man, whether it be
from active intervention or neglect, or failure to act, the whole
occurrence is thereby humanized, as it were, and removed from
the rules applicable to the acts of God. (1 Corpus Juris, pp.
1174-1175).
Thus it has been held that when the negligence of a person
concurs with an act of God in producing a loss, such person is
not exempt from liability by showing that the immediate cause
of the damage was the act of God. To be exempt from liability
for loss because of an act of God, he must be free from any
previous negligence or misconduct by which that loss or damage
may have been occasioned. (Fish & Elective Co. v. Phil. Motors,
55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco & Sons
v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45
Phil. 657). 21
Accordingly, petitioners cannot be heard to invoke the act of God or force
majeure to escape liability for the loss or damage sustained by private
respondents since they, the petitioners, were guilty of negligence. The event then
was not occasioned exclusively by an act of God or force majeure; a human factor
— negligence or imprudence — had intervened. The effect then of the force
majeure in question may be deemed to have, even if only partly, resulted from
the participation of man. Thus, the whole occurrence was thereby humanized, as
it were, and removed from the laws applicable to acts of God.
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the
Consolidated Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is
AFFIRMED, with costs against the petitioners.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
# Footnotes
1 Annex "A" of Petition; Rollo, 34-53. Per Associate Justice
Venancio D. Aldecoa, Jr., concurred in by Associate Justices Luis
L. Victor and Filemon N. Mendoza.
2 Civil Case No. SM-950 entitled "GAUDENCIO C. RAYO,
BIENVENIDO P. PASCUAL, TOMAS MANUEL, PEDRO C.
BARTOLOME, BERNARDO CRUZ, JOSE PALAD, MARIANO CRUZ AND
LUCIO FAJARDO versus NATIONAL POWER CORPORATION AND
BENJAMIN CHAVEZ," and filed on 20 December 1978;
Civil Case No. SM-951 entitled "FRANCISCO RAYOS versus
NATIONAL POWER CORPORATION AND BENJAMIN CHAVEZ," and
filed on 29 December 1978
Civil Case No. SM-953 entitled "ANGEL C. TORRES, NORBERTO
TORRES AND RODELIO JOAQUIN versus NATIONAL POWER
CORPORATION AND BENJAMIN CHAVEZ," and filed on 4 January
1978; and
Civil Case No. SM-1247 entitled "PRESENTACION LORENZO,
CLODUALDO LORENZO, CONSOLACION GUZMAN AND VIRGINIA
GUZMAN, in her behalf and as natural guardian of her minor
children, RODELIO, MINERVA AND EMERSON, all surnamed
GUZMAN, versus NATIONAL POWER CORPORATION AND BENJAMIN
CHAVEZ," and filed on 29 January 1982.
3 CA Decision, 3; Rollo, 37.
4 Id., 3-4; Id., 37-38.
5 CA Decision, 4; Rollo, 38.
6 Id., 2; Id., 36.
7 Rollo, 51-53.
8 Rollo, 40.
9 Rollo, 39-41.
10 Rollo, 41.
11 Id., 42.
12 144 SCRA 596 [1986], quoted in National Power Corp. vs.
Court of Appeals, 161 SCRA 334 [1988].
13 In the matter of when interest on the damages awarded will
accrue, the Court of Appeals ruled that interest shall be paid
only from the time its decision shall have become final and
executory.
14 Rollo, 56-57.
15 Id., 166.
16 Rollo, 16.
17 211 SCRA 162 [1992].
18 Supra.
19 Remalante vs. Tibe, 158 SCRA 138 [1988]; Median vs. Asistio,
Jr., 191 SCRA 218 [1990].
20 Supra.
21 Supra, at 606-607.
 THIRD DIVISION
G.R. No. 126389 July 10, 1998
SOUTHEASTERN COLLEGE INC., petitioner,
vs.
COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO,
REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS
DIMAANO, respondents.
PURISIMA, J.:
Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision 1 promulgated on July 31, 1996, and Resolution 2 dated September 12,
1996 of the Court of Appeals 3 in CA-G.R. No. 41422, entitled "Juanita de Jesus
vda. de Dimaano, et al. vs. Southeastern College, Inc.", which reduced the moral
damages awarded below from P1,000,000.00 to P200,000.00. 4 The Resolution
under attack denied petitioner's motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On
October 11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit
Metro Manila. Buffeted by very strong winds, the roof of petitioner's building was
partly ripped off and blown away, landing on and destroying portions of the
roofing of private respondents' house. After the typhoon had passed, an ocular
inspection of the destroyed building was conducted by a team of engineers
headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the
latter's Report 5 dated October 18, 1989 stated, as follows:
5. One of the factors that may have led to this calamitous event
is the formation of the building in the area and the general
direction of the wind. Situated in the peripheral lot is an almost
U-shaped formation of 4-storey building. Thus, with the strong
winds having a westerly direction, the general formation of the
building becomes a big funnel-like structure, the one situated
along College Road, receiving the heaviest impact of the strong
winds. Hence, there are portions of the roofing, those located
on both ends of the building, which remained intact after the
storm.
6. Another factor and perhaps the most likely reason for the
dislodging of the roofing structural trusses is the improper
anchorage of the said trusses to the roof beams. The 1/2'
diameter steel bars embedded on the concrete roof beams
which serve as truss anchorage are not bolted nor nailed to the
trusses. Still, there are other steel bars which were not even
bent to the trusses, thus, those trusses are not anchored at all
to the roof beams.
It then recommended that "to avoid any further loss and damage to lives,
limbs and property of persons living in the vicinity," the fourth floor of
subject school building be declared as a "structural hazard."
In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage
to their house rendered the same uninhabitable, forcing them to stay temporarily
in others' houses. And so they sought to recover from petitioner P117,116.00, as
actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary
damages and P100,000.00, for and as attorney's fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood
several devastating typhoons and other calamities in the past, without its roofing
or any portion thereof giving way; that it has not been remiss in its responsibility
to see to it that said school building, which houses school children, faculty
members, and employees, is "in tip-top condition"; and furthermore, typhoon
"Saling" was "an act of God and therefore beyond human control" such that
petitioner cannot be answerable for the damages wrought thereby, absent any
negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that
subject school building had a "defective roofing structure," found that, while
typhoon "Saling" was accompanied by strong winds, the damage to private
respondents' houses "could have been avoided if the construction of the roof of
[petitioner's] building was not faulty." The dispositive portion of the lower court's
decision 7 reads, thus:
WHEREFORE, in view of the foregoing, the Court renders
judgment (sic) in favor of the plaintiff (sic) and against the
defendants, (sic) ordering the latter to pay jointly and severally
the former as follows:
a) P117,116.00, as actual damages, plus litigation
expenses;
b) P1,000,000.00 as moral damages;
c) P100,000.00 as attorney's fees;
d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that
the defendants (sic) did in a wanton fraudulent, reckless,
oppressive or malevolent manner.
In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:
I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON "SALING", AS AN
ACT OF GOD, IS NOT "THE SOLE AND ABSOLUTE REASON" FOR THE
RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF SOUTHEASTERN'S
FOUR (4) STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION OF THE
ROOF OF DEFENDANT'S SCHOOL BUILDING WAS FAULTY"
NOTWITHSTANDING THE ADMISSION THAT THERE WERE TYPHOONS
BEFORE BUT NOT AS GRAVE AS TYPHOON "SALING" WHICH IS THE DIRECT
AND PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS
WELL AS ATTORNEY'S FEES AND LITIGATION EXPENSES AND COSTS OF SUIT
TO DIMAANOS WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL
 AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING
EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF
EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERN'S APPEAL
WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the
trial court's disposition by reducing the award of moral damages from
P1,000,000.00 to P200,000.00. Hence, petitioner's resort to this Court, raising for
resolution the issues of:
1. Whether or not the award of actual damages [sic] to respondent
Dimaanos on the basis of speculation or conjecture, without proof or
receipts of actual damage, [sic] legally feasible or justified.
2. Whether or not the award of moral damages to respondent Dimaanos,
with the latter having suffered, actual damage has legal basis.
3. Whether or not respondent Dimaanos who are no longer the owner of
the property, subject matter of the case, during its pendency, has the
right to pursue their complaint against petitioner when the case was
already moot and academic by the sale of the property to third party.
4. Whether or not the award of attorney's fees when the case was
already moot academic [sic] legally justified.
5. Whether or not petitioner is liable for damage caused to others by
typhoon "Saling" being an act of God.
6. Whether or not the issuance of a writ of execution pending
appeal, ex-parte or without hearing, has support in law.
The pivot of inquiry here, determinative of the other issues, is whether the
damage on the roof of the building of private respondents resulting from the
impact of the falling portions of the school building's roof ripped off by the strong
winds of typhoon "Saling", was, within legal contemplation, due to fortuitous
event? If so, petitioner cannot be held liable for the damages suffered by the
private respondents. This conclusion finds support in Article 1174 of Civil Code,
which provides:
Art 1174. Except in cases expressly specified by the law, or when it is
otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were
inevitable.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which
defines it as "an event which takes place by accident and could not have been
foreseen." 9 Escriche elaborates it as "an unexpected event or act of God which
could neither be foreseen nor resisted." 10 Civilist Arturo M. Tolentino adds that
"[f]ortuitous events may be produced by two general causes: (1) by nature, such
as earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man,
such as an armed invasion, attack by bandits, governmental prohibitions, robbery,
etc." 11
In order that a fortuitous event may exempt a person from liability, it is necessary
that he be free from any previous negligence or misconduct by reason of which
the loss may have been occasioned. 12 An act of God cannot be invoked for the
protection of a person who has been guilty of gross negligence in not trying to
forestall its possible adverse consequences. When a person's negligence concurs
with an act of God in producing damage or injury to another, such person is not
exempt from liability by showing that the immediate or proximate cause of the
damages or injury was a fortuitous event. When the effect is found to be partly
the result of the participation of man — whether it be from active intervention, or
neglect, or failure to act — the whole occurrence is hereby humanized, and
removed from the rules applicable to acts of God. 13
In the case under consideration, the lower court accorded full credence to the
finding of the investigating team that subject school building's roofing had "no
sufficient anchorage to hold it in position especially when battered by strong
winds." Based on such finding, the trial court imputed negligence to petitioner
and adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court
believes otherwise, notwithstanding the general rule that factual findings by the
trail court, especially when affirmed by the appellate court, are binding and
conclusive upon this Court. 14 After a careful scrutiny of the records and the
pleadings submitted by the parties, we find exception to this rule and hold that
the lower courts misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural
occurrence which may be foreseen but is unavoidable despite any amount of
foresight, diligence or care. 15 In order to be exempt from liability arising from
any adverse consequence engendered thereby, there should have been no human
participation amounting to a negligent act. 16 In other words; the person seeking
exoneration from liability must not be guilty of negligence. Negligence, as
commonly understood, is conduct which naturally or reasonably creates undue
risk or harm to others. It may be the failure to observe that degree of care,
precaution, and vigilance which the circumstances justify demand, 17 or the
omission to do something which a prudent and reasonable man, guided by
considerations which ordinarily regulate the conduct of human affairs, would
do. 18 From these premises, we proceed to determine whether petitioner was
negligent, such that if it were not, the damage caused to private respondents'
house could have been avoided?
At the outset, it bears emphasizing that a person claiming damages for the
negligence of another has the burden of proving the existence of fault or
negligence causative of his injury or loss. The facts constitutive of negligence
must be affirmatively established by competent evidence, 19 not merely by
presumptions and conclusions without basis in fact. Private respondents, in
establishing the culpability of petitioner, merely relied on the aforementioned
report submitted by a team which made an ocular inspection of petitioner's school
building after the typhoon. As the term imparts, an ocular inspection is one by
means of actual sight or viewing. 20 What is visual to the eye through, is not
always reflective of the real cause behind. For instance, one who hears a gunshot
and then sees a wounded person, cannot always definitely conclude that a third
person shot the victim. It could have been self-inflicted or caused accidentally by
a stray bullet. The relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was
conducted to determine the real cause of the partial unroofing of petitioner's
school building. Private respondents did not even show that the plans,
specifications and design of said school building were deficient and defective.
Neither did they prove any substantial deviation from the approved plans and
specifications. Nor did they conclusively establish that the construction of such
building was basically flawed. 21
On the other hand, petitioner elicited from one of the witnesses of private
respondents, city building official Jesus Reyna, that the original plans and design
of petitioner's school building were approved prior to its construction. Engr. Reyna
admitted that it was a legal requirement before the construction of any building
to obtain a permit from the city building official (city engineer, prior to the
passage of the Building Act of 1977). In like manner, after construction of the
building, a certification must be secured from the same official attesting to the
readiness for occupancy of the edifice. Having obtained both building permit and
certificate of occupancy, these are, at the very least, prima facie evidence of the
regular and proper construction of subject school building. 22
Furthermore, when part of its roof needed repairs of the damage inflicted by
typhoon "Saling", the same city official gave the go-signal for such repairs —
without any deviation from the original design — and subsequently, authorized the
use of the entire fourth floor of the same building. These only prove that subject
building suffers from no structural defect, contrary to the report that its "U-
shaped" form was "structurally defective." Having given his unqualified
imprimatur, the city building official is presumed to have properly performed his
duties 23 in connection therewith.
In addition, petitioner presented its vice president for finance and administration
who testified that an annual maintenance inspection and repair of subject school
building were regularly undertaken. Petitioner was even willing to present its
maintenance supervisor to attest to the extent of such regular inspection but
private respondents agreed to dispense with his testimony and simply stipulated
that it would be corroborative of the vice president's narration.
Moreover, the city building official, who has been in the city government service
since 1974, admitted in open court that no complaint regarding any defect on the
same structure has ever been lodged before his office prior to the institution of
the case at bench. It is a matter of judicial notice that typhoons are common
occurrences in this country. If subject school building's roofing was not firmly
anchored to its trusses, obviously, it could not have withstood long years and
several typhoons even stronger than "Saling."
In light of the foregoing, we find no clear and convincing evidence to sustain the
judgment of the appellate court. We thus hold that petitioner has not been shown
negligent or at fault regarding the construction and maintenance of its school
building in question and that typhoon "Saling" was the proximate cause of the
damage suffered by private respondents' house.
With this disposition on the pivotal issue, private respondents' claim for actual
and moral damages as well as attorney's fees must fail. 24 Petitioner cannot be
made to answer for a purely fortuitous event. 25 More so because no bad faith or
willful act to cause damage was alleged and proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the
pecuniary loss they actually incurred.26 It is not enough that the damage be
capable of proof but must be actually proved with a reasonable degree of
certainty, pointing out specific facts that afford a basis for measuring whatever
compensatory damages are borne.27 Private respondents merely submitted an
estimated amount needed for the repair of the roof their subject building. What
is more, whether the "necessary repairs" were caused ONLY by petitioner's alleged
negligence in the maintenance of its school building, or included the ordinary
wear and tear of the house itself, is an essential question that remains
indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993
by the trial court is hereby nullified and set aside. Private respondents are
ordered to reimburse any amount or return to petitioner any property which they
may have received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED.
The complaint of private respondents in Civil Case No. 7314 before the trial
court a quo is ordered DISMISSED and the writ of execution issued on April 1, 1993
in said case is SET ASIDE. Accordingly, private respondents are ORDERED to return
to petitioner any amount or property received by them by virtue of said writ.
Costs against the private respondents.
SO ORDERED.
Narvasa, C.J., Romero and Kapunan, JJ., concur.
# Footnotes
1 Rollo, pp. 28-41.
2 Ibid., p. 42.
3 Seventh Division, composed of J. Jose dela Rama, ponente;
with JJ. Emeterio C. Cui (chairman) and Eduardo G.
Montenegro, concurring.
4 CA Decision, p. 13; Rollo, p. 40.
5 Records, pp. 127-128.
6 Ibid., pp. 1-3.
7 CA, rollo, pp. 63-69.
8 Rollo, pp. 20-21.
9 Tolentino, Civil Code of the Philippines, 1991 ed., Col IV, p.
126.
10 Ibid.
11 Ibid.
12 Ibid., p. 130, citing Tan Chiong vs. Inchausti, 22 Phil 152,
1912. Nakpil & Sons vs. Court of Appeals, 144 SCRA 596, 607,
October 3, 1986. See also Metal Forming Corporation vs. Office
of the President, 247 SCRA 731, 728-739, August 28, 1995.
13 Nakpil & Sons, vs. Court of Appeals, Ibid., pp. 606-607. See
also Ilocos Norte Electric Co. vs. Court of Appeals, 179 SCRA 5,
15, November 6, 1989.
14 Fuentes vs. Court of Appeals, 268 SCRA 703, February 26,
1997; Atlantic Gulf & Pacific Company of Manila, Inc. vs. Court
of Appeals, 247 SCRA 606, August 23, 1995; Acebedo Optical
Co., vs. Court of Appeals, 250 SCRA 409, November 29, 1995.
15 Nakpil & Sons, vs. Court of Appeals, supra, p. 606, citing 1
CJS 1174.
16 Batangas Laguan Tayabas Bus Co. vs. Intermediate Appellate
Court, 167 SCRA 379, 386, November 14, 1988.
17 Valenzuela vs. Court of Appeals, 253 SCRA 303, February 7,
1996. cf. Quibal vs. Sandiganbayan, 244 SCRA 224, May 22,
1195; Citibank, NA vs. Gatchalian, 240 SCRA 212, January 18,
1995.
18 Layugan vs. Intermediate Appellate Court, 167 SCRA 363,
372-273, November 14, 1988; Philippine Bank of Commerce vs.
Court of Appeals, GR No. 97626, March 14, 1997.
19 Philippine Long Distance Telephone Co., Inc. vs. Court of
Appeals, 178 SCRA 94, 106, September 29, 1989, citing Barcelo
vs. manila Electric Railroad & Light Co., 29 Phil 351, January 28,
1915.
20 Webster's Third New International Dictionary, 1971 ed.;
Moreno, Philippine Law Dictionary, 2nd ed.
21 CF, Nakpil & Sons vs. Court of Appeals, supra. See
also Quisumbing Sr. vs. Court of Appeals, 189 SCRA 605,
September 14, 1990.
22 cf. Yap Kim Chuan vs. Tiaoqui, 31 Phil 433, September 18,
1915.
23 Tatad vs. Garcia Jr., 243 SCRA 436, April 6, 1995; People vs.
Figueroa, 248 SCRA 679, October 2, 1995.
24 Toyota Shaw, Inc. vs. Court of Appeals, 244 SCRA 320, May
23, 1995; Custodio vs. Court of Appeals, 253, SCRA 483,
February 9, 1996; Syquia vs. Court of Appeals, 217 SCRA 624,
January 27, 1993.
25 Itan Chiong vs. Inchausti, supra.
26 Baliwag Transit, Inc. vs. Court of Appeals, 256 SCRA 746, May
15, 1996.
27 Del Mundo vs. Court of Appeals, 240 SCRA 348, January 20,
1995.
 EN BANC This opinion, however, appears to have been rendered in a case where an animal
G.R. No. L-2075 November 29, 1949 caused injury to a stranger or third person. It is therefore no authority for a case
like the present where the person injured was the caretaker of the animal. The
MARGARITA AFIALDA, plaintiff-appellant, distinction is important. For the statute names the possessor or user of the animal
vs. as the person liable for "any damages it may cause," and this for the obvious
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees. reason that the possessor or user has the custody and control of the animal and is
therefore the one in a position to prevent it from causing damage.
Nicolas P. Nonato for appellant. In the present case, the animal was in custody and under the control of the
Gellada, Mirasol and Ravena for appellees. caretaker, who was paid for his work as such. Obviously, it was the caretaker's
business to try to prevent the animal from causing injury or damage to anyone,
REYES, J.: including himself. And being injured by the animal under those circumstances,
This is an action for damages arising from injury caused by an animal. The was one of the risks of the occupation which he had voluntarily assumed and for
complaint alleges that the now deceased, Loreto Afialda, was employed by the which he must take the consequences.
defendant spouses as caretaker of their carabaos at a fixed compensation; that In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries
while tending the animals he was, on March 21, 1947, gored by one of them and (Vol. 12, p. 578), the death of an employee who was bitten by a feline which his
later died as a consequence of his injuries; that the mishap was due neither to his master had asked him to take to his establishment was by said tribunal declared
own fault nor to force majeure; and that plaintiff is his elder sister and heir to be "a veritable accident of labor" which should come under the labor laws
depending upon him for support. rather than under article 1905 of the Civil Code. The present action, however, is
Before filing their answer, defendants moved for the dismissal of the complaint not brought under the Workmen's Compensation Act, there being no allegation
for lack of a cause of action, and the motion having been granted by the lower that, among other things, defendant's business, whatever that might be, had a
court, plaintiff has taken this appeal. gross income of P20,000. As already stated, defendant's liability is made to rest on
Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, article 1905 of the Civil Code. but action under that article is not tenable for the
which reads: reasons already stated. On the other hand, if action is to be based on article 1902
of the Civil Code, it is essential that there be fault or negligence on the part of
The possessor of an animal, or the one who uses the same, is liable for the defendants as owners of the animal that caused the damage. But the
any damages it may cause, even if such animal should escape from him complaint contains no allegation on those points.
or stray away.
There being no reversible error in the order appealed from, the same is hereby
This liability shall cease only in case, the damage should arise from force affirmed, but without costs in view of the financial situation of the appellant.
majeure or from the fault of the person who may have suffered it.
Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor and Torres,
The question presented is whether the owner of the animal is liable when damage JJ., concur.
is caused to its caretaker.
The lower court took the view that under the above-quoted provision of the Civil
Code, the owner of an animal is answerable only for damages caused to a
stranger, and that for damage caused to the caretaker of the animal the owner
would be liable only if he had been negligent or at fault under article 1902 of the
same code. Claiming that the lower court was in error, counsel for plaintiff
contends that the article 1905 does not distinguish between damage caused to the
caretaker and makes the owner liable whether or not he has been negligent or at
fault. For authority counsel cites the following opinion which Manresa quotes from
a decision of the Spanish Supreme Court:
El articulo 1905 del codigo Civil no consienta otra interpretacion que la
que, clara y evidentemente, se deriva de sus terminos literales,
bastando, segun el mismo, que un animal cause perjuicio para que nasca
la responsibilidad del dueno, aun no imputandose a este ninguna clase de
culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal
concepto de dueno es suficiente para que arrastre las consecuencias
favorables o adversas de esta clase de propiedad, salvo la exception en
el mismo contenida. (12 Manresa, Commentaries on the Spanish
CivilCode, 573.)
 SECOND DIVISION
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN
YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA
JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of
Appeals' First Division, setting aside the judgment of the then Court of First
Instance (CFI) of Ilocos Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another
rendered in its stead whereby defendant is hereby sentenced to pay
plaintiffs actual damages of P30,229.45; compensatory damages of
P50,000.00; exemplary damages of P10,000.00; attorney's fees of
P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for
the recognition of their respective versions of the scenario from which the
disputed claims originate. The respondent Court of Appeals (CA) summarized the
evidence of the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28
until the early morning of June 29, 1967 a strong typhoon by the code
name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains
and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on
June 29, 1967, after the typhoon had abated and when the floodwaters
were beginning to recede the deceased Isabel Lao Juan, fondly called
Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes,
on No. 19 Guerrero Street, Laoag City, and proceeded northward towards
the direction of the Five Sisters Emporium, of which she was the owner
and proprietress, to look after the merchandise therein that might have
been damaged. Wading in waist-deep flood on Guerrero, the deceased
was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also
owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at
the YJ Cinema, which was partly owned by the deceased. Aida and Linda
walked side by side at a distance of between 5 and 6 meters behind the
deceased, Suddenly, the deceased screamed "Ay" and quickly sank into
the water. The two girls attempted to help, but fear dissuaded them
from doing so because on the spot where the deceased sank they saw an
electric wire dangling from a post and moving in snake-like fashion in the
water. Upon their shouts for help, Ernesto dela Cruz came out of the
house of Antonio Yabes. Ernesto tried to go to the deceased, but at four
meters away from her he turned back shouting that the water was
grounded. Aida and Linda prodded Ernesto to seek help from Antonio
Yabes at the YJ Cinema building which was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had
been electrocuted, he acted immediately. With his wife Jane, together
with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to
request the police to ask the people of defendant Ilocos Norte Electric
Company or INELCO to cut off the electric current. Then the party waded
to the house on Guerrero Street. The floodwater was receding and the
lights inside the house were out indicating that the electric current had
been cut off in Guerrero. Yabes instructed his boys to fish for the body of
the deceased. The body was recovered about two meters from an
electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967,
Engineer Antonio Juan, Power Plant Engineer of the National Power
Corporation at the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated such abnormalities as
grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set
out of the Laoag NPC Compound on an inspection. On the way, he saw
grounded and disconnected lines. Electric lines were hanging from the
posts to the ground. Since he could not see any INELCO lineman, he
decided to go to the INELCO Office at the Life Theatre on Rizal Street by
way of Guerrero. As he turned right at the intersection of Guerrero and
Rizal, he saw an electric wire about 30 meters long strung across the
street "and the other end was seeming to play with the current of the
water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still
closed, and seeing no lineman therein, he returned to the NPC
Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on
another inspection trip. Having learned of the death of Isabel Lao Juan,
he passed by the house of the deceased at the corner of Guerrero and
M.H. del Pilar streets to which the body had been taken. Using the
resuscitator which was a standard equipment in his jeep and employing
the skill he acquired from an in service training on resuscitation, he tried
to revive the deceased. His efforts proved futile. Rigor mortis was
setting in. On the left palm of the deceased, Engr. Juan noticed a hollow
wound. Proceeding to the INELCO Office, he met two linemen on the
way. He told them about the grounded lines of the INELCO In the
afternoon of the same day, he went on a third inspection trip
preparatory to the restoration of power. The dangling wire he saw on
Guerrero early in the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del
Pilar after learning that the deceased had been electrocuted. Among the
sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat,
Ilocos Norte. Upon the request of the relatives of the deceased, Dr.
Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin
was grayish or, in medical parlance, cyanotic, which indicated death by
electrocution. On the left palm, the doctor found an "electrically
charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree
burn. About the base of the thumb on the left hand was a burned wound.
(Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr.
Castro stated the cause of' death as ,'circulatory shock electrocution"
(Exh. I; p. 103, Ibid.).
 In defense and exculpation, defendant presented the testimonies of its
officers and employees, namely, Conrado Asis, electric engineer; Loreto
Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili,
president-manager of INELCO Through the testimonies of these
witnesses, defendant sought to prove that on and even before June 29,
1967 the electric service system of the INELCO in the whole franchise
area, including Area No. 9 which covered the residence of Antonio Yabes
at No. 18 Guerrero Street, did not suffer from any defect that might
constitute a hazard to life and property. The service lines, devices and
other INELCO equipment in Area No. 9 had been newly-installed prior to
the date in question. As a public service operator and in line with its
business of supplying electric current to the public, defendant had
installed safety devices to prevent and avoid injuries to persons and
damage to property in case of natural calamities such as floods,
typhoons, fire and others. Defendant had 12 linesmen charged with the
duty of making a round-the-clock check-up of the areas respectively
assigned to them.
Defendant asserts that although a strong typhoon struck the province of
Ilocos Norte on June 29, 1967, putting to streets of Laoag City under
water, only a few known places in Laoag were reported to have suffered
damaged electric lines, namely, at the southern approach of the Marcos
Bridge which was washed away and where the INELCO lines and posts
collapsed; in the eastern part near the residence of the late Governor
Simeon Mandac; in the far north near the defendant's power plant at the
corner of Segundo and Castro Streets, Laoag City and at the far
northwest side, near the premises of the Ilocos Norte National High
School. Fabico Abijero, testified that in the early morning before 6
o'clock on June 29, 1967 he passed by the intersection of Rizal and
Guerrero Streets to switch off the street lights in Area No. 9. He did not
see any cut or broken wires in or near the vicinity. What he saw were
many people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the
defense to show that the deceased could not have died of electrocution
Substantially, the testimony of the doctor is as follows: Without an
autopsy on the cadaver of the victim, no doctor, not even a medicolegal
expert, can speculate as to the real cause of death. Cyanosis could not
have been found in the body of the deceased three hours after her
death, because cyanosis which means lack of oxygen circulating in the
blood and rendering the color of the skin purplish, appears only in a live
person. The presence of the elongated burn in the left palm of the
deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by
electrocution; since burns caused by electricity are more or less round in
shape and with points of entry and exit. Had the deceased held the
lethal wire for a long time, the laceration in her palm would have been
bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the
heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide,
Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special
defense, that the deceased could have died simply either by drowning or by
electrocution due to negligence attributable only to herself and not to petitioner.
In this regard, it was pointed out that the deceased, without petitioner's
knowledge, caused the installation of a burglar deterrent by connecting a wire
from the main house to the iron gate and fence of steel matting, thus, charging
the latter with electric current whenever the switch is on. Petitioner then
conjectures that the switch to said burglar deterrent must have been left on,
hence, causing the deceased's electrocution when she tried to open her gate that
early morning of June 29, 1967. After due trial, the CFI found the facts in favor of
petitioner and dismissed the complaint but awarded to the latter P25,000 in
moral damages and attorney's fees of P45,000. An appeal was filed with the CA
which issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by
the respondent CA:
1. The respondent Court of Appeals committed grave abuse of discretion
and error in considering the purely hearsay alleged declarations of
Ernesto de la Cruz as part of theres gestae.
2. The respondent Court of Appeals committed grave abuse of discretion
and error in holding that the strong typhoon "Gening" which struck Laoag
City and Ilocos Norte on June 29, 1967 and the flood and deluge it
brought in its wake were not fortuitous events and did not exonerate
petitioner-company from liability for the death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and
erred in not applying the legal principle of "assumption of risk" in the
present case to bar private respondents from collecting damages from
petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its
discretion in completely reversing the findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible
under the recognized exceptions.
6. The trial court did not err in awarding moral damages and attorney's
fees to defendant corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable from
the death of the late Isabel Lao Juan, the damages granted by
respondent Court of Appeals are improper and exhorbitant. (Petitioners
Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's
death; and (3) whether or not the respondent CA's substitution of the trial court's
factual findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the
affirmative. By a preponderance of evidence, private respondents were able to
show that the deceased died of electrocution, a conclusion which can be primarily
derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the
left palm of the former. Such wounds undoubtedly point to the fact that the
deceased had clutched a live wire of the petitioner. This was corroborated by the
testimony of Dr. Jovencio Castro who actually examined the body of the deceased
a few hours after the death and described the said burnt wounds as a "first degree
burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged"
(p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo
and Aida Bulong added that after the deceased screamed "Ay" and sank into the
water, they tried to render some help but were overcome with fear by the sight
of an electric wire dangling from an electric post, moving in the water in a snake-
like fashion (supra). The foregoing therefore justifies the respondent CA in
concluding that "(t)he nature of the wounds as described by the witnesses who
saw them can lead to no other conclusion than that they were "burns," and there
was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (CA Decision,
p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the
deceased was electrocuted, if such was really the case when she tried to open her
steel gate, which was electrically charged by an electric wire she herself caused
to install to serve as a burglar deterrent. Petitioner suggests that the switch to
said burglar alarm was left on. But this is mere speculation, not backed up with
evidence. As required by the Rules, "each party must prove his own affirmative
allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that
"during the trial, this theory was abandoned" by the petitioner (CA Decision, p.
23, Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were
with the deceased during that fateful morning of June 29, 1967. This
Court has not been offered any sufficient reason to discredit the
testimonies of these two young ladies. They were one in the affirmation
that the deceased, while wading in the waist-deep flood on Guerrero
Street five or six meters ahead of them, suddenly screamed "Ay" and
quickly sank into the water. When they approached the deceased to
help, they were stopped by the sight of an electric wire dangling from a
post and moving in snake-like fashion in the water. Ernesto dela Cruz
also tried to approach the deceased, but he turned back shouting that
the water was grounded. These bits of evidence carry much weight. For
the subject of the testimonies was a startling occurrence, and the
declarations may be considered part of the res gestae. (CA Decision, p.
21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be
present: (1) that the principal act, the res gestae, be a startling occurrence; (2)
that the statements were made before the declarant had time to contrive or
devise; (3) that the statements made must concern the occurrence in question
and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151;
People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the
CA' part in view of the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in
evidence precisely as an exception to the hearsay rule on the grounds of
trustworthiness and necessity. "Trustworthiness" because the statements are
made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such
natural and spontaneous utterances are more convincing than the testimony of
the same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact
that the declarant, Ernesto de la Cruz, was not presented to testify does not
make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the
said declaration is part of the res gestae. Similarly, We considered part of the res
gestae a conversation between two accused immediately after commission of the
crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p.
135, Rollo), Ernesto de la Cruz was not an actual witness to the instant when the
deceased sank into the waist-deep water, he acted upon the call of help of Aida
Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately after,
the sinking of the deceased. In fact the startling event had not yet ceased when
Ernesto de la Cruz entered the scene considering that the victim remained
submerged. Under such a circumstance, it is undeniable that a state of mind
characterized by nervous excitement had been triggered in Ernesto de la Cruz's
being as anybody under the same contingency could have experienced. As such,
We cannot honestly exclude his shouts that the water was grounded from the res
gestae just because he did not actually see the sinking of the deceased nor hear
her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la
Cruz. While We concede to the submission that the statement must be one of
facts rather than opinion, We cannot agree to the proposition that the one made
by him was a mere opinion. On the contrary, his shout was a translation of an
actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was
suppressed by the private respondents, thus, is presumed to be adverse to them
pursuant to Section 5(e), Rule 131. For the application of said Rule as against a
party to a case, it is necessary that the evidence alleged to be suppressed is
available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953).
The presumption does not operate if the evidence in question is equally available
to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421).
It is clear from the records that petitioner could have called Ernesto de la Cruz to
the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to
petitioner's counsel when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the
gate of the house?
A. Well, you can ask that matter from him sir because he is
here. (TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations
of Ernesto de la Cruz which, if truly adverse to private respondent, would have
helped its case. However, due to reasons known only to petitioner, the
opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents'
favor. The respondent CA acted correctly in disposing the argument that
petitioner be exonerated from liability since typhoons and floods are fortuitous
events. While it is true that typhoons and floods are considered Acts of God for
which no person may be held responsible, it was not said eventuality which
directly caused the victim's death. It was through the intervention of petitioner's
negligence that death took place. We subscribe to the conclusions of the
respondent CA when it found:
On the issue whether or not the defendant incurred liability for the
electrocution and consequent death of the late Isabel Lao Juan,
 defendant called to the witness-stand its electrical engineer, chief
lineman, and lineman to show exercise of extraordinary diligence and to
negate the charge of negligence. The witnesses testified in a general way
about their duties and the measures which defendant usually adopts to
prevent hazards to life and limb. From these testimonies, the lower
court found "that the electric lines and other equipment of defendant
corporation were properly maintained by a well-trained team of lineman,
technicians and engineers working around the clock to insure that these
equipments were in excellent condition at all times." (P. 40, Record on
Appeal) The finding of the lower court, however, was based on what the
defendant's employees were supposed to do, not on what they actually
did or failed to do on the date in question, and not on the occasion of
theemergency situation brought about by the typhoon.
The lower court made a mistake in assuming that defendant's employees
worked around the clock during the occurrence of the typhoon on the
night of June 28 and until the early morning of June 29, 1967, Engr.
Antonio Juan of the National Power Corporation affirmed that when he
first set out on an inspection trip between 6:00 and 6:30 A.M. on June
29, 1967, he saw grounded and disconnected electric lines of the
defendant but he saw no INELCO lineman. The INELCO Office at the Life
theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972)
Even the witnesses of defendant contradict the finding of the lower
court. Conrado Asis, defendant's electrical engineer, testified that he
conducted a general inspection of the franchise area of the INELCO only
on June 30, 1967, the day following the typhoon. The reason he gave for
the delay was that all their vehicles were submerged. (p. 337, TSN, July
20, 1973) According to Asis, he arrived at his office at 8:00 A.M. onJune
30 and after briefing his men on what to do they started out. (p.
338, lbid) One or two days after the typhoon, the INELCO people heard
"rumors that someone was electrocuted" so he sent one of his men to the
place but his man reported back that there was no damaged wire. (p.
385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr.
Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr. Juan
came to the INELCO plant and asked the INELCO people to inspect their
lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M.
to 12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman
of defendant, testified that at about 6:00 on June 29, 1967 the typhoon
ceased. At that time, he was at the main building of the Divine Word
College of Laoag where he had taken his family for refuge. (pp. 510-
511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on
the night of June 28 until the early hours of June 29, 1967, extraordinary
diligence requires a supplier of electricity to be inconstant vigil to
prevent or avoid any probable incident that might imperil life or limb.
The evidence does not show that defendant did that. On the contrary,
evidence discloses that there were no men (linemen or otherwise)
policing the area, nor even manning its office. (CA Decision, pp. 24-25,
Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to
it that no harm is done to the general public"... considering that electricity is an
agency, subtle and deadly, the measure of care required of electric companies
must be commensurate with or proportionate to the danger. The duty of
exercising this high degree of diligence and care extends to every place where
persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The
negligence of petitioner having been shown, it may not now absolve itself from
liability by arguing that the victim's death was solely due to a fortuitous event.
"When an act of God combines or concurs with the negligence of the defendant to
produce an injury, the defendant is liable if the injury would not have resulted
but for his own negligent conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no
application in the case at bar. It is imperative to note the surrounding
circumstances which impelled the deceased to leave the comforts of a roof and
brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5,
26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased,
accompanied by the former two, were on their way to the latter's grocery store
"to see to it that the goods were not flooded." As such, shall We punish her for
exercising her right to protect her property from the floods by imputing upon her
the unfavorable presumption that she assumed the risk of personal injury?
Definitely not. For it has been held that a person is excused from the force of the
rule, that when he voluntarily assents to a known danger he must abide by the
consequences, if an emergency is found to exist or if the life or property of
another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to
rescue his endangered property (Harper and James, "The Law of Torts." Little,
Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the
deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a
place where she had a right to be without regard to petitioner's consent as she
was on her way to protect her merchandise. Hence, private respondents, as heirs,
may not be barred from recovering damages as a result of the death caused by
petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely
reversing the trial court's findings of fact, pointing to the testimonies of three of
its employees its electrical engineer, collector-inspector, lineman, and president-
manager to the effect that it had exercised the degree of diligence required of it
in keeping its electric lines free from defects that may imperil life and limb.
Likewise, the said employees of petitioner categorically disowned the fatal wires
as they appear in two photographs taken on the afternoon of June 29, 1967 (Exhs.
"D" and "E"), suggesting that said wires were just hooked to the electric post
(petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held,
"(t)he finding of the lower court ... was based on what the defendant's employees
were supposed to do, not on what they actually did or failed to do on the date in
question, and not on the occasion of the emergency situation brought about by
the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have
already reiterated above, petitioner was in fact negligent. In a like manner,
petitioner's denial of ownership of the several wires cannot stand the logical
conclusion reached by the CA when it held that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to no other conclusion than
that they were 'burns', and there was nothing else in the street where the victim
was wading thru which could cause a burn except the dangling live wire of
defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires
prompt efforts to discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, Footnotes
p. 474). The fact is that when Engineer Antonio Juan of the National Power * Penned by then Acting Presiding Justice Lourdes P. San Diego
Corporation set out in the early morning of June 29, 1967 on an inspection tour, and concurred in by Justices Samuel F. Reyes and Lino M.
he saw grounded and disconnected lines hanging from posts to the ground but did Patajo.
not see any INELCO lineman either in the streets or at the INELCO office (vide, CA
Decision, supra). The foregoing shows that petitioner's duty to exercise
extraordinary diligence under the circumstance was not observed, confirming the
negligence of petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already
alerted about the impending typhoon, through radio
announcements. Even the fire department of the city announced
the coming of the big flood. (pp. 532-534, TSN, March 13, 1975)
At the INELCO irregularities in the flow of electric current were
noted because "amperes of the switch volts were moving". And
yet, despite these danger signals, INELCO had to wait for Engr.
Juan to request that defendant's switch be cut off but the harm
was done. Asked why the delay, Loreto Abijero answered that
he "was not the machine tender of the electric plant to switch
off the current." (pp. 467-468, Ibid.) How very characteristic of
gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing
the trial court's findings but tediously considered the factual circumstances at
hand pursuant to its power to review questions of fact raised from the decision of
the Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following
in private respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the
victim's death and P18,229.45 for funeral expenses); P50,000 in compensatory
damages, computed in accordance with the formula set in the Villa-Rey Transit
case (31 SCRA 511) with the base of P15,000 as average annual income of the
deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of
suit. Except for the award of P12,000 as compensation for the victim's death, We
affirm the respondent CA's award for damages and attorney's fees. Pusuant to
recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147
SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the
total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court
was properly made by the respondent CA, the charge of malice and bad faith on
the part of respondents in instituting his case being a mere product of wishful
thinking and speculation. Award of damages and attorney's fees is unwarranted
where the action was filed in good faith; there should be no penalty on the right
to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's
exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59
SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight
modification that actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.
 EN BANC
G.R. No. L-22533 February 9, 1967
PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,
vs.
PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.
Placido B. Ramos and Renato L. Ramos for petitioners.
Trinidad & Borromeo for respondents.
BENGZON, J.P., J.:
On June 30, 1958 Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the
P.I.1 and Andres Bonifacio in the Court of First Instance of Manila as a
consequence of a collision, on May 10, 1958, involving the car of Placido Ramos
and a tractor-truck and trailer of PEPESI-COLA. Said car was at the time of the
collision driven by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's
tractor-truck was then driven by its driver and co-defendant Andres Bonifacio.
After trial the Court of First Instance rendered judgment on April 15, 1961,
finding Bonifacio negligent and declaring that PEPSI-COLA had not sufficiently
proved its having exercised the due diligence of a good father of a family to
prevent the damage. PEPSI-COLA and Bonifacio, solidarily, were ordered to pay
the plaintiffs P2,638.50 actual damages; P2,000.00 moral damages; P2,000.00 as
exemplary damages; and, P1,000.00 attorney's fees, with costs.
Not satisfied with this decision, the defendants appellee to the Court of Appeals.
Said Court, on January 15, 1964, affirmed the trial court's judgment insofar as it
found defendant Bonifacio negligent, but modified it by absolving defendant
PEPSI-COLA from liability, finding that, contrary to the plaintiffs' contention,
PEPSI-COLA sufficiently proved due diligence in the selection of its driver
Bonifacio.
Plaintiffs thereupon appealed to Us through this petition for review of the Court
of Appeals' decision. And appellants would argue before this Court that defendant
PEPSI-COLA's evidence failed to show that it had exercised due diligence in the
selection of its driver in question.
Said point, as stated, was resolved by the Court of Appeals in PEPSI-COLA's favor,
thus:
The uncontradicted testimony of Juan T. Anasco, personnel manager of
defendant company, was to the effect that defendant driver was first
hired as a member of the bottle crop in the production department; that
when he was hired as a driver, 'we had size [sic] him by looking into his
background, asking him to submit clearances, previous experience,
physical examination and later on, he was sent to the pool house to take
the usual driver's examination, consisting of: First, theoretical
examination and second, the practical driving examination, all of which
he had undergone, and that the defendant company was a member of
the Safety Council. In view hereof, we are of the sense that defendant
company had exercised the diligence of a good father of a family in the
choice or selection of defendant driver'. In the case of Campo vs.
Camarote No. L-9147 (1956), 53 O.G. 2794, cited in appellee's brief, our
Supreme Court had occasion to put it down as a rule that "In order that
the defendant may be considered as having exercised all the diligence of
a good father of a family, he should not have been satisfied with the
mere possession of a professional driver's license; he should have
carefully examined the applicant for employment as to his qualifications,
his experiences and record of service." Defendant Company has taken all
these steps.2
Appellants herein seek to assail the foregoing portion of the decision under review
by taking issue with the testimony of Anasco upon which the findings of due
diligence aforestated are rested. Thus, it is now contended that Añasco being
PEPSI-COLA's employee, is a biased and interested witness; and that his testimony
is not believable.
It is rather clear, therefore, that appellants would raise herein an issue of fact
and credibility, something as to which this Court has consistently respected the
findings of the Court of Appeals, with some few exceptions, which do not obtain
herein.3
Stated differently, Añascos credibility is not for this Court now to re-examine.
And said witness having been found credible by the Court of Appeals, his
testimony, as accepted by said Court, cannot at this stage be assailed. As We said
in Co Tao vs. Court of Appeals, L-9194, April 25, 1957, assignments of error
involving the credibility of witnesses and which in effect dispute the findings of
fact of the Court of Appeals, cannot be reviewed in these proceedings. For a
question to be one of law it must involve no examination of the probative value of
the evidence presented by the litigants or any of them. 4 And the distinction is
well-known: There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts; there is a
question of fact when the doubt or difference arises as to the truth or the
falsehood of alleged facts.5
From all this it follows that for the purposes of this appeal, it must be taken as
established that, as testified to by Añasco, PEPSI-COLA did in fact carefully
examine the driver-applicant Bonifacio as to his qualifications, experiences and
record of service, taking all steps mentioned by the Court of Appeals in its
decision already quoted.1äwphï1.ñët
Such being the case, there can be no doubt that PEPSI-COLA exercised the
required due diligence in the selection of its driver. As ruled by this Court
in Campo vs. Camarote 53 O.G. 2794, 2797: "In order that the defendant may be
considered as having exercised all diligence of a good father of a family, he
should not be satisfied with the mere possession of a professional driver's license;
he should have carefully examined the applicant for employment as to his
qualifications, his experience and record of service."
It should perhaps be stated that in the instant case no question is raised as to due
diligence in the supervision by PEPSI-COLA of its driver. Article 2180 of the Civil
Code provides inter alia:
... The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
xxx xxx xxx
 The responsibility treated of in this Article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.
And construing a similar provision of the old Civil Code, this Court said
in Bahia vs. Litonjua, 30 Phil. 624, 627:
From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly arises
a presumption of law that there was negligence on the part of the master
or employer either in the selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that the
presumption is juris tantum and not juris et de jure, and consequently
may be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has
exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is
only due diligence in the selection of its driver. And, parenthetically, it is not
surprising that appellants thus confine their arguments to this aspect of due
diligence, since the record — as even appellants' brief (pp. 13-17) reflects in
quoting in part the testimony of PEPSI-COLA's witness — would show sufficient
evidence to establish due diligence in the supervision by PEPSI-COLA of its drivers,
including Bonifacio.
Appellants' other assignment of errors are likewise outside the purview of this
Court's reviewing power. Thus, the question of whether PEPSI- COLA violated the
Revised Motor Vehicle Law and rules and regulations related thereto, not having
been raised and argued in the Court of Appeals, cannot be ventilated herein for
the first time. 6 And the matter of whether or not PEPSI-COLA did acts to ratify
the negligent act of its driver is a factual issue not proper herein.
Wherefore, the decision of the Court of Appeals is hereby affirmed, with costs
against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and
Castro, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
May 16, 1967
BENGZON, J.P., J.:
Petitioners seek a reconsideration1 of Our decision2 in the instant case
affirming in toto the challenged decision of the Court of Appeals absolving
respondent PEPSI-COLA from liability. In Our decision, We refrained from passing
on the merits of the question whether PEPSI-COLA, in operating the tractor-truck
and trailer, violated the Rev. Motor Vehicle Law3 and the rules and regulations
related thereto, for the procedural reason that it did not appear to have been
raised before the Court of Appeals.
It now appears, however, that said question was raised in a motion to reconsider
filed with the Court of Appeals which resolved the same against petitioners. Due
consideration of the matter on its merits, convinces Us that the decision of the
Court of Appeals should still be affirmed in toto.
Petitioners impute to PEPSI-COLA the violation of subpars. 1 and 4(d), par. (a),
Sec. 27 of M.V.O. Administrative Order No. 1, dated Sept. 1, 1951, in that at the
time of the collision, the trailer-truck, which had a total weight of 30,000 kgms.,
was (a) being driven at a speed of about 30 k.p.h. or beyond the 15 k.p.h. limit
set and (b) was not equipped with a rear-vision mirror nor provided with a helper
for the driver.
The cited provisions read:
SECTION 27. Registration, operation, and inspection of truck-trailer
combinations, semi-trailers, and tractors.
(a) No trailer or semi-trailer having a gross weight of more than 2,000
kilograms and is not equipped with effective brakes on at least two
opposite wheels of the rear axle and are so controlled that the brakes
will act in unison with or preceding the effective action of the brakes of
the tractor-truck shall be registered for operation on public highways of
the Philippines; provided, that the trialers without brakes may be
registered from year to year for operation under the following
conditions:
1. No such trailer shall be operated at any time at a speed in excess of
15 kilometers per hour in conjunction with a tractor-truck, the actual
gross weight of which is less than twice the weight of the trailer.
xxx xxx xxx
4(d) Tractor-trucks shall be either equipped with rear-vision mirror to
enable the driver to see vehicles approaching mirror the rear or shall
carry a helper who shall be so stationed on the truck or trailer that he
will constantly have a view of the rear. He shall be provided with means
of effectively signalling to the driver to give way to overtaking vehicles.
4(e) No truck and trailer combination shall be operated at a speed
greater than 30 kilometers per hour.
It will be noted that the 15 k.p.h. limit in subpar. 1, supra, refers only to
trailers or semi-trailers having a gross weight of more than 2,000 kgms.,
AND which are "not equipped with effective brakes on at least two
opposite wheels, of the rear axle and are so controlled that the brakes
will act in unison with or preceding the effective action of the brakes of
the tractor-truck..." This is the condition set in the proviso in par.
(a),supra, wherein "trailers without [such] brakes may be registered from
year to year for operation ..." i.e., they should not "be operated at any
time at a speed in excess of 15 kilometers per hour in conjunction with a
tractor-truck ...". But there was no finding by the Court of Appeals that
the truck-trailer here did not have such brakes. In the absence of such
fact, it is subpar. 4(e), supra, that will apply. And petitioners admit that
the truck-trailer was being driven at about 30 k.p.h.
It is a fact that driver Bonifacio was not accompanied by a helper on the night of
the collision since he was found to be driving alone. However, there is no finding
that the tractor-truck did not have a rear-vision mirror. To be sure, the records
disclose that Pat. Rodolfo Pahate, the traffic policeman who went to the collision
scene, testified that he saw the tractor-truck there but he does not remember if
it had any rear vision mirror.4 This cannot prove lack of rear-vision mirror. And
the cited provision — subpar. 4(d) — is complied if either of the two alternatives,
i.e., having a rear-vision mirror or a helper, is present. Stated otherwise, said
provision is violated only where there is a positive finding that the tractor-truck
did not have both rear-vision mirror and a helper for the driver.
Petitioners also charge PEPSI-COLA with having violated par. (b) of Sec. 8-A of the
Rev. Motor Vehicle Law, providing that:
No motor vehicle operating as a single unit shall exceed the following
dimensions:
Overall width ................ 2.5 meters.
xxx xxx xxx
since there was an express finding that the truck-trailer was 3 meters
wide. However, Sec. 9 (d) of the same law, as amended, providing that —
SEC. 9. Special permits, fees for.-The chief of the Motor Vehicles
Office with the approval of the Secretary of Public Works and
Communications shall establish regulations and a tariff of additional
fees under which special permits may be issued in the discretion of the
Chief of the Motor Vehicles Office or his deputies, for each of the
following special cases, and without such special permit, no such motor
vehicles shall be operated on the public highways.
xxx xxx xxx
(d) For registration or use of a motor vehicle exceeding the limit of
permissible dimensions specified in subsections (b) and (c) of section
eight-A hereof. (Emphasis supplied)
xxx xxx xxx
expressly allows the registration, or use of motor vehicles exceeding the
limits of permissible dimensions specified in subsec. (b) of Sec. 8-A. So,
to conclude that there was a violation of law — which undisputably
constitutes negligence, at the very least — it is not enough that the
width of the tractor-truck exceed the limit in Sec. 8-A; in addition, it
must also appear that there was no special permit granted under Sec. 9.
Unfortunately for petitioners, that vital factual link is missing. There was
no proof much less any finding to that effect. And it was incumbent upon
petitioners-appellants to have proved lack of such permit since the
tractor-truck and the trailer were registered.5 Compliance with law and
regularity in the performance of official duty — in this case, the issuance
of proper registration papers — are presumed6 and prevail over mere
surmises. Having charged a violation of law, the onus of substantiating
the same fell upon petitioners-appellants. Hence, the conclusion that
there was a violation of the law lacks factual basis.
Petitioners would also have Us abandon the Bahia ruling.7 In its stead, We are
urged to apply the Anglo-American doctrine of respondent superior. We cannot
however, abandon the Bahia ruling without going against the explicit mandate of
the law. A motor vehicle owner is not an absolute insurer against all damages
caused by its driver. Article 2180 of our Civil Code is very explicit that the owner's
responsibility shall cease once it proves that it has observed the diligence of a
good father of a family to prevent damage. The Bahia case merely clarified what
that diligence consists of, namely, diligence in the selection and supervision of
the driver-employee.
Neither could We apply the respondent superior principle. Under Article 2180 of
the Civil Code, the basis of an employer's liability is his own negligence, not that
of his employees. The former is made responsible for failing to properly and
diligently select and supervise his erring employees. We do not — and have never
— followed the respondent superior rule.8 So, the American rulings cited by
petitioners, based as they are on said doctrine, are not authoritative here.
In view of the foregoing, the motion for reconsideration is hereby denied.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and
Castro, JJ., concur.
Footnotes
1
For brevity hereinafter called PEPSI-COLA.
2
Emphasis supplied.
3
Among the exceptions to the rule that findings of fact by the Court of
Appeals cannot be reviewed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on
speculation, surmises or conjectures: Joaquin vs. Navarro, 93
Phil. 257.
2. When the inference made is manifestly mistaken, absurd or
impossible: Luna vs. Linatok 74 Phil. 15.
3. Where there is a grave abuse of discretion: Buyco vs. People,
51 O.G. 2927.
4. When the judgment is based on a misapprehension of facts:
Cruz vs. Sosing, L-4875, November 27, 1953.
5. When the findings of fact are conflicting: Casica vs. Villaseca,
L-9590, April 30, 1957.
6. When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee: Evangelista vs. Alto
Surety & Insurance Co., L-11139, April 23, 1958.
4
Cf. II Moran, Comments on the Rules of Court, 1963 Ed., 412.
5
See II Martin, Rules of Court in the Philippines, 255; II Bouvier's Law
Dictionary, 2784.
6
Tan Si Kiok vs. Tiacho, 79 Phil. 696.
BENGZON, J.P., J.:
1
Typographical errors appearing in the printed motion for reconsideration
have been corrected upon petitioner's request granted by Us.
2
Promulgated Feb. 9, 1967.
3
Act No. 3992.
4
Session of Jan. 13, 1960, T.s.n., p. 68.
5
See Pars. 2 and 3 of Complaint, Rollo, p. 44.
6
Rule 131, Sec. 5(m) and (ff), Rev. Rules of Court.
7
Bahia vs. Litonjua, 30 Phil. 624, which held that once the employer
satisfactorily shows that in the section and supervision of the driver, he
has exercised the care and diligence of a good father of a family, he is
relieved from liability.
8
Cangco vs. M.R.R., 38 Phil. 768; Cuison vs. Norton, 55 Phil. 18.
 SECOND DIVISION
G.R. No. 104408 June 21, 1993
METRO MANILA TRANSIT CORPORATION, petitioner,
vs.
THE COURT OF APPEALS AND NENITA CUSTODIA, respondents.
Office of the Government Corporate Counsel for petitioner.
Renato P. Decena and Restituto Abjero for private respondent.
REGALADO, J.:
This appeal calls for a review of the legal validity and sufficiency of petitioner's
invocation of due diligence in the selection and supervision of employees as its
defense against liability resulting from a vehicular collision. With the facility by
which such a defense can be contrived and our country having reputedly the
highest traffic accident rate in its geographical region, it is indeed high time for
us to once again address this matter which poses not only a litigation issue for the
courts but affects the very safety of our streets.
The facts of the case at bar are recounted for us by respondent court, thus —
At about six o'clock in the morning of August 28, 1979, plaintiff-
appellant Nenita Custodio boarded as a paying passenger a
public utility jeepney with plate No. D7 305 PUJ Pilipinas 1979,
then driven by defendant Agudo Calebag and owned by his co-
defendant Victorino Lamayo, bound for her work at Dynetics
Incorporated located in Bicutan, Taguig, Metro Manila, where
she then worked as a machine operator earning P16.25 a day.
While the passenger jeepney was travelling at (a) fast clip along
DBP Avenue, Bicutan, Taguig, Metro Manila another fast moving
vehicle, a Metro Manila Transit Corp. (MMTC, for short) bus
bearing plate no. 3Z 307 PUB (Philippines) "79 driven by
defendant Godofredo C. Leonardo was negotiating Honeydew
Road, Bicutan, Taguig, Metro Manila bound for its terminal at
Bicutan. As both vehicles approached the intersection of DBP
Avenue and Honeydew Road they failed to slow down and
slacken their speed; neither did they blow their horns to warn
approaching vehicles. As a consequence, a collision between
them occurred, the passenger jeepney ramming the left side
portion of the MMTC bus. The collision impact caused plaintiff-
appellant Nenita Custodio to hit the front windshield of the
passenger jeepney and (she) was thrown out therefrom, falling
onto the pavement unconscious with serious physical injuries.
She was brought to the Medical City Hospital where she regained
consciousness only after one (1) week. Thereat, she was
confined for twenty-four (24) days, and as a consequence, she
was unable to work for three and one half months (31/2). 1
A complaint for damages 2 was filed by herein private respondent, who being then
a minor was assisted by her parents, against all of therein named defendants
following their refusal to pay the expenses incurred by the former as a result of
the collision.
Said defendants denied all the material allegations in the complaint and pointed
an accusing finger at each other as being the party at fault. Further, herein
petitioner Metro Manila Transit Corporation (MMTC), a government-owned
corporation and one of the defendants in the court a quo, along with its driver,
Godofredo Leonardo, contrarily averred in its answer with cross-claim and
counterclaim 3 that the MMTC bus was driven in a prudent and careful manner by
driver Leonardo and that it was the passenger jeepney which was driven
recklessly considering that it hit the left middle portion of the MMTC bus, and
that it was defendant Lamayo, the owner of the jeepney and employer of driver
Calebag, who failed to exercise due diligence in the selection and supervision of
employees and should thus be held solidarily liable for damages caused to the
MMTC bus through the fault and negligence of its employees.
Defendant Victorino Lamayo, for his part, alleged in his answer with cross-claim
and counterclaim 4 that the damages suffered by therein plaintiff should be borne
by defendants MMTC and its driver, Godofredo Leonardo, because the latter's
negligence was the sole and proximate cause of the accident and that MMTC
failed to exercise due diligence in the selection and supervision of its employees.
By order of the trial court, defendant Calebag was declared in default for failure
to file an answer. 5 Thereafter, as no amicable settlement was reached during the
pre-trial conference, 6 trial on the merits ensued with the opposing parties
presenting their respective witnesses and documentary evidence.
Herein private respondent Nenita Custodia, along with her parents, were
presented as witnesses for the prosecution. In addition, Dr. Edgardo del Mundo,
the attending physician, testified on the cause, nature and extent of the injuries
she sustained as a result of the vehicular mishap. 7 On the other hand, defendant
MMTC presented as witnesses Godofredo Leonardo, Christian Bautista and Milagros
Garbo. Defendant Lamayo, however, failed to present any witness.
Milagros Garbo testified that, as a training officer of MMTC, she was in charge of
the selection of the company's bus drivers, conducting for this purpose a series of
training programs and examinations. According to her, new applicants for job
openings at MMTC are preliminarily required to submit certain documents such as
National Bureau of Investigation (NBI) clearance, birth or residence certificate, ID
pictures, certificate or diploma of highest educational attainment, professional
driver's license, and work experience certification. Re-entry applicants, aside
from the foregoing requirements, are additionally supposed to submit company
clearance for shortages and damages and revenue performance for the preceding
year. Upon satisfactory compliance with said requisites, applicants are
recommended for and subjected to a Preliminary interview, followed by a record
check to find out whether they are included in the list of undesirable employees
given by other companies.
Thereafter, she continued, if an applicant is found to be acceptable, a final
interview by the Chief Supervisor is scheduled and followed by a training program
which consists of seminars and actual driving and Psycho-physical tests and X-ray
examinations. The seminars, which last for a total of eighteen (18) days, include
familiarization with assigned routes, existing traffic rules and regulations,
Constabulary Highway Patrol Group (CHPG) seminar on defensive driving,
preventive maintenance, proper vehicle handling, interpersonal relationship ,and
administrative rules on discipline and on-the-job training. Upon completion of all
the seminars and tests, a final clearance is issued, an employment contract is
executed and the driver is ready to report for duty. 8
MMTC's Transport Supervisor, Christian Bautista, testified that it was his duty to
monitor the daily operation of buses in the field, to countercheck the dispatcher
on duty prior to the operation of the buses in the morning and to see to it that
the bus crew follow written guidelines of the company, which include seeing to it
that its employees are in proper uniform, briefed in traffic rules and regulations
before the start of duty, fit to drive and, in general, follow other rules and
regulations of the Bureau of Land Transportation as well as of the company. 9
The reorganized trial court, in its decision of August 1, 1989, 10 found both drivers
of the colliding vehicles concurrently negligent for non-observance of appropriate
traffic rules and regulations and for failure to take the usual precautions when
approaching an intersection. As joint tortfeasors, both drivers, as well as
defendant Lamayo, were held solidarily liable for damages sustained by plaintiff
Custodio. Defendant MMTC, on the bases of the evidence presented was,
however, absolved from liability for the accident on the ground that it was not
only careful and diligent in choosing and screening applicants for job openings but
was also strict and diligent in supervising its employees by seeing to it that its
employees were in proper uniforms, briefed in traffic rules and regulations before
the start of duty, and that it checked its employees to determine whether or not
they were positive for alcohol and followed other rules and regulations and
guidelines of the Bureau of Land Transportation and of the company.
The trial court accordingly ruled:
WHEREFORE, PREMISES CONSIDERED, judgment is hereby
rendered dismissing the complaint against the Metro Manila
Transit Corporation and ordering defendants Agudo P. Calebag,
Victorino Lamayo and Godofredo C. Leonardo to pay plaintiffs,
jointly and severally, the following:
a) the sum of P10,000.00 by way of medical expenses;
b) the sum of P5,000.00 by way of expenses of litigation;
c) the sum of P15,000.00 by way of moral damages;
d) the sum of P2,672.00 by way of loss of earnings;
e) the sum of P5,000.00 by way of exemplary damages;
f) the sum of P6,000.00 by way of attorney's fees; and
g) costs of suit.
SO ORDERED. 11
Plaintiff's motion to have that portion of the trial court's decision absolving MMTC
from liability reconsidered 12having been denied for lack of merit, 13 an appeal
was filed by her with respondent appellate court. After consideration of the
appropriate pleadings on appeal and finding the appeal meritorious, the Court of
Appeals modified the trial court's decision by holding MMTC solidarily liable with
the other defendants for the damages awarded by the trial court because of their
concurrent negligence, concluding that while there is no hard and fast rule as to
what constitutes sufficient evidence to prove that an employer has exercised the
due diligence required of it in the selection and supervision of its employees,
based on the quantum of evidence adduced the said appellate court was not
disposed to say that MMTC had exercised the diligence required of a good father
of a family in the selection and supervision of its driver, Godofredo Leonardo. 14
The Court of Appeals was resolute in its conclusion and denied the motions for
reconsideration of appellee Custodio and appellant MMTC in a resolution dated
February 17, 1982, 15 thus prompting MMTC to file the instant petition invoking
the review powers of this Court over the decision of the Court of Appeals, raising
as issues for resolution whether or not (1) the documentary evidence to support
the positive testimonies of witnesses Garbo and Bautista are still necessary; (2)
the testimonies of witnesses Garbo and Bautista may still be disturbed on appeal;
and (3) the evidence presented during the trial with respect to the proof of due
diligence of petitioner MMTC in the selection and supervision of its employees,
particularly driver Leonardo, is sufficient.
Prefatorily, private respondent questions the timeliness of the filing of the
petition at bar in view of the procedural stricture that the timely perfection of an
appeal is both a mandatory and jurisdictional requirement. This is a legitimate
concern on the part of private respondent and presents an opportune occasion to
once again clarify this point as there appears to be some confusion in the
application of the rules and interpretative rulings regarding the computation of
reglementary periods at this stage of the proceedings.
The records of this case reveal that the decision of respondent Court of Appeals,
dated October 31, 1991, was received by MMTC on November 18, 1991 16 and it
seasonably filed a motion for the reconsideration thereof on November 28,
1991. 17 Said motion for reconsideration was denied by respondent court in its
resolution dated February 17, 1992, which in turn was received by MMTC on March
9, 1992. 18 Therefore, it had, pursuant to Section 1, Rule 45 of the Rules of Court,
fifteen (15) days therefrom or up to March 24, 1992 within which to file its
petition, for review on certiorari. Anticipating, however, that it may not be able
to file said petition before the lapse of the reglementary period therefor, MMTC
filed a motion on March 19, 1992 for an extension of thirty (30) days to file the
present petition, with proof of service of copies thereof to respondent court and
the adverse parties. The Court granted said motion, with the extended period to
be counted from the expiration of the reglementary period.19 Consequently,
private respondent had thirty (30) days from March 24, 1992 within which to file
its petition, or up to April 23, 1992, and the eventual filing of said petition on
April 14, 1992 was well within the period granted by the Court.
We digress to reiterate, in view of erroneous submissions that we continue to
receive, that in the case of a petition for review on certiorari from a decision
rendered by the Court of Appeals, Section 1, Rule 45 of the Rules of Court, which
has long since been clarified in Lacsamana vs. The Hon. Second Special Cases
Division of the Intermediate Appellate Court, et al., 20 allows the same to be
filed "within fifteen (15) days from notice of judgment or of the denial of the
motion for reconsideration filed in due time, and paying at the same time to the
corresponding docket fee." In other words, in the event a motion for
reconsideration is filed and denied, the period of fifteen (15) days begins to run
all over again from notice of the denial resolution. Otherwise put, if a motion for
reconsideration is filed, the reglementary period within which to appeal the
decision of the Court of Appeals to the Supreme Court is reckoned from the date
the party who intends to appeal received the order denying the motion for
reconsideration.21 Furthermore, a motion for extension of time to file a petition
for review may be filed with this Court within said reglementary period, paying at
the same time the corresponding docket fee.
1. The first two issues raised by petitioner shall be correlatively discussed in view
of their interrelation.
In its present petition, MMTC insists that the oral testimonies of its employees
were presented as witnesses in its behalf sufficiently prove, even without the
presentation documentary evidence, that driver Leonardo had complied with all
the hiring and clearance requirements and had undergone all trainings, tests and
examinations preparatory to actual employment, and that said positive
testimonies spell out the rigid procedure for screening of job applicants and the
supervision of its employees in the field. It underscored the fact that it had
indeed complied with the measure of diligence in the selection and supervision of
its employees as enunciated in Campo, et al. vs. Camarote, et al. 22 requiring an
employer, in the exercise of the diligence of a good father of a family, to
carefully examine the applicant for employment as to his qualifications,
experience and record service, and not merely be satisfied with the possession of
a professional driver's license.
It goes on to say since the testimonies of these witnesses were allegedly neither
discredited nor impeached by the adverse party, they should be believed and not
arbitrarily disregarded or rejected nor disturbed on appeal. It assiduously argues
that inasmuch as there is no law requiring that facts alleged by petitioner be
established by documentary evidence, the probative force and weight of their
testimonies should not be discredited, with the further note that the lower court
having passed upon the relevancy of the oral testimonies and considered the same
as unrebutted, its consideration should no longer be disturbed on appeal. 23
Private respondent, on the other hand, retorts that the factual findings of
respondent court are conclusive upon the High Court which cannot be burdened
with the task of analyzing and weighing the evidence all over again. 24
At this juncture, it suffices to note that factual findings of the trial court may be
reversed by the Court of Appeals, which is vested by law with the power to review
both legal and factual issues, if on the evidence of record, it appears that the
trial court may have been mistaken 25 particularly in the appreciation of evidence,
which is within the domain of the Court of Appeals. 26 The general rule laid down
in a plethora of cases is that such findings of fact by the Court of Appeals are
conclusive upon and beyond the power of review of the Supreme
Court. 27However, it is now well-settled that while the findings of fact of the
Court of Appeals are entitled to great respect, and even finality at times, that
rule is not inflexible and is subject to well established exceptions, to wit: (1)
when the conclusion is a finding grounded entirely on speculation, surmises and
conjectures; (2) when the inference made is manifestly mistaken, absurd or
impossible; (3) where there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting;
(6) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same are contrary to the admissions of both appellant and
appellee; (7) when the findings of the Court of Appeals are contrary to those of
the trial court; (8) when the findings of fact are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the
petition, as well as in the petitioner's main and reply briefs are not disputed by
the respondents and (10) when the findings of fact of the Court of Appeals are
premised on the supposed absence of evidence and are contradicted by the
evidence on record. 28
When as in this case, the findings of the Court of Appeals and the trial court are
contrary to each other, this court may scrutinize the evidence on record, 29 in
order to arrive at a correct finding based thereon. 30
A perusal of the same shows that since there is no dispute as to the finding of
concurrent negligence on the part of the defendant Calebag, the driver of the
passenger jeepney, and co-defendant Leonardo, the bus driver of petitioner
MMTC, both of whom were solidarily held liable with defendant Lamayo, the
owner of the jeepney, we are spared the necessity of determining the sufficiency
of evidence establishing the fact of negligence. 31 The contrariety is in the
findings of the two lower courts, and which is the subject of this present
controversy, with regard to the liability of MMTC as employer of one the erring
drivers.
The trial court, in absolving MMTC from liability ruled that —
On the question as to whether defendant MMTC was successful
in proving its defense that indeed it had exercised the due
diligence of a good father of a family in the selection and
supervision of defendant Leonardo, this Court finds that based
on the evidence presented during the trial, defendant MMTC
was able to prove that it was not only careful and diligent in
choosing and screening applicants for job openings but also
strict (and) diligent in supervising its employees by seeing to it
that its employees were in proper uniforms, briefed in traffic
rules and regulations before the start of duty, checked
employees to determine whether they were positive for alcohol
and followed other rules and regulations and guidelines of the
Bureau of Land Transportation as well as its company. Having
successfully proven such defense, defendant MMTC therefore,
cannot be held liable for the accident.
Having reached this conclusion, the Court now, holds that
defendant MMTC be totally absolved from liability and that the
complaint against it be dismissed. . . . 32
whereas respondent court was of the opinion that —
It is surprising though that witness Milagros Garbo did not testify
nor present any evidence that defendant-appellee's driver,
defendant Godofredo Leonardo has complied with or has
undergone all clearances and trainings she referred to. The
clearances, result of seminars and tests which Godofredo
Leonardo submitted and complied with, if any, were not
presented in court despite the fact that they are obviously in
the possession and control of defendant-appellee. Instead, it
resorted to generalities. The Court has ruled that due diligence
in (the) selection and supervision of employee(s) are not proved
by mere testimonies to the effect that its applicant has
complied with all the company requirements before one is
admitted as an employee but without proof thereof. . . .
 On the part of Christian Bautista, the transport supervisor of
defendant-appellee, he testified that it is his duty to monitor
the operation of buses in the field; to countercheck the
dispatchers' duty prior to the operation of the buses in the
morning; to see to it that bus crew follows written guidelines of
the company (t.s.n., April 29, 1988, pp. 4-5), but when asked to
present in court the alleged written guidelines of the company
he merely stated that he brought with him a "wrong document"
and defendant-appellee's counsel asked for reservation to
present such written guidelines in the next hearing but the same
was (sic) never presented in court. 33
A thorough and scrupulous review of the records of this case reveals that the
conclusion of respondent Court of Appeals is more firmly grounded on
jurisprudence and amply supported by the evidence of record than that of the
court below.
It is procedurally required for each party in a case to prove his own affirmative
assertion by the degree of evidence required by law. 34 In civil cases, the degree
of evidence required of a party in order to support his claim is preponderance of
evidence, or that evidence adduced by one party which is more conclusive and
credible than that of the other party. It is, therefore, incumbent on the plaintiff
who is claiming a right to prove his case. Corollarily, defendant must likewise
prove own allegation to buttress its claim that it is not liable. 35
In fine, the party, whether plaintiff or defendant, who asserts the affirmative of
the issue has the burden of presenting at the trial such amount of evidence
required by law to obtain a favorable judgment. 36 It is entirely within each of the
parties discretion, consonant with the theory of the case it or he seeks to advance
and subject to such procedural strategy followed thereby, to present all available
evidence at its or his disposal in the manner which may be deemed necessary and
beneficial to prove its or his position, provided only that the same shall measure
up to the quantum of evidence required by law. In making proof in its or his case,
it is paramount that the best and most complete evidence be formally entered. 37
Coming now to the case at bar, while there is no rule which requires that
testimonial evidence, to hold sway, must be corroborated by documentary
evidence, or even subject evidence for that matter, inasmuch as the witnesses'
testimonies dwelt on mere generalities, we cannot consider the same as
sufficiently persuasive proof that there was observance of due diligence in the
selection and supervision of employees. 38 Petitioner's attempt to prove
itsdiligentissimi patris familias in the selection and supervision of employees
through oral evidence must fail as it was unable to buttress the same with any
other evidence, object or documentary, which might obviate the apparent biased
nature of the testimony. 39
Our view that the evidence for petitioner MMTC falls short of the required
evidentiary quantum as would convincingly and undoubtedly prove its observance
of the diligence of a good father of a family has its precursor in the underlying
rationale pronounced in the earlier case of Central Taxicab Corp. vs. Ex-Meralco
Employees Transportation Co., et al., 40 set amidst an almost identical factual
setting, where we held that:
. . . . This witness spoke of an "affidavit of experience" which a
driver-applicant must accomplish before he is employed by the
company, a written "time schedule" for each bus, and a record
of the inspections and thorough checks pertaining to each bus
before it leaves the car barn; yet no attempt was ever made to
present in evidence any of these documents, despite the fact
that they were obviously in the possession and control of the
defendant company.
xxx xxx xxx
Albert also testified that he kept records of the preliminary and
final tests given him as well as a record of the qualifications and
experience of each of the drivers of the company. It is rather
strange, therefore, that he failed to produce in court the all
important record of Roberto, the driver involved in this case.
The failure of the defendant company to produce in court any
"record" or other documentary proof tending to establish that it
had exercised all the diligence of a good father of a family in
the selection and supervision of its drivers and buses,
notwithstanding the calls therefor by both the trial court and
the opposing counsel, argues strongly against its pretensions.
We are fully aware that there is no hard-and-fast rule on the
quantum of evidence needed to prove due observance of all the
diligence of a good father of a family as would constitute a valid
defense to the legal presumption of negligence on the part of an
employer or master whose employee has by his negligence,
caused damage to another. . . . (R)educing the testimony of
Albert to its proper proportions, we do not have enough
trustworthy evidence left to go by. We are of the considered
opinion, therefore, that the believable evidence on the degree
of care and diligence that has been exercised in the selection
and supervision of Roberto Leon y Salazar, is not legally
sufficient to overcome the presumption of negligence against
the defendant company.
Whether or not the diligence of a good father of a family has been observed by
petitioner is a matter of proof which under the circumstances in the case at bar
has not been clearly established. It is not felt by the Court that there is enough
evidence on record as would overturn the presumption of negligence, and for
failure to submit all evidence within its control, assuming the putative existence
thereof, petitioner MMTC must suffer the consequences of its own inaction and
indifference.
2. In any event, we do not find the evidence presented by petitioner sufficiently
convincing to prove the diligence of a good father of a family, which for an
employer doctrinally translates into its observance of due diligence in the
selection and supervision of its employees but which mandate, to use an oft-
quoted phrase, is more often honored in the breach than in the observance.
Petitioner attempted to essay in detail the company's procedure for screening job
applicants and supervising its employees in the field, through the testimonies of
Milagros Garbo, as its training officer, and Christian Bautista, as its transport
supervisor, both of whom naturally and expectedly testified for MMTC. It then
concluded with its sweeping pontifications that "thus, there is no doubt that
considering the nature of the business of petitioner, it would not let any
applicant-drivers to be (sic) admitted without undergoing the rigid selection and
training process with the end (in) view of protecting the public in general and its
passengers in particular; . . . thus, there is no doubt that applicant had fully
complied with the said requirements otherwise Garbo should not have allowed
him to undertake the next set of requirements . . . and the training conducted
consisting of seminars and actual driving tests were satisfactory otherwise he
should have not been allowed to drive the subject vehicle. 41
These statements strike us as both presumptuous and in the nature of petitio
principii, couched in generalities and shorn of any supporting evidence to boost
their verity. As earlier observed, respondent court could not but express surprise,
and thereby its incredulity, that witness Garbo neither testified nor presented any
evidence that driver Leonardo had complied with or had undergone all the
clearances and trainings she took pains to recite and enumerate. The supposed
clearances, results of seminars and tests which Leonardo allegedly submitted and
complied with were never presented in court despite the fact that, if true, then
they were obviously in the possession and control of petitioner. 42
The case at bar is clearly within the coverage of Article 2176 and 2177, in relation
to Article 2180, of the Civil Code provisions on quasi-delicts as all the elements
thereof are present, to wit: (1) damages suffered by the plaintiff, (2) fault or
negligence of the defendant or some other person for whose act he must respond,
and (3) the connection of cause and effect between fault or negligence of the
defendant and the damages incurred by plaintiff. 43 It is to be noted that
petitioner was originally sued as employer of driver Leonardo under Article 2180,
the pertinent parts of which provides that:
The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for
whom one is responsible.
xxx xxx xxx
Employers shall be liable for damages caused by their employees
and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business
or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
The basis of the employer's vicarious liability has been explained under this
ratiocination:
The responsibility imposed by this article arises by virtue of a
presumption juris tantum of negligence on the part of the
persons made responsible under the article, derived from their
failure to exercise due care and vigilance over the acts of
subordinates to prevent them from causing damage. Negligence
is imputed to them by law, unless they prove the contrary.
Thus, the last paragraph of the article says that such
responsibility ceases if is proved that the persons who might be
held responsible under it exercised the diligence of a good
father of a family (diligentissimi patris familias) to prevent
damage. It is clear, therefore, that it is not representation, nor
interest, nor even the necessity of having somebody else answer
for the damages caused by the persons devoid of personality,
but it is the non-performance of certain duties of precaution
and prudence imposed upon the persons who become
responsible by civil bond uniting the actor to them, which forms
the foundation of such responsibility. 44
The above rule is, of course, applicable only where there is an employer-
employee relationship, although it is not necessary that the employer be engaged
in business or industry. Whether or not engaged in any business or industry, the
employer under Article 2180 is liable for torts committed by his employees within
the scope of their assigned tasks. But, it is necessary first to establish the
employment relationship. Once this is done, the plaintiff must show, to hold the
employer liable, that the employee was acting within the scope of his assigned
task when the tort complained of was committed. It is only then that the
defendant, as employer, may find it necessary to interpose the defense of due
diligence in the selection and supervision of employees. 45 The diligence of a good
father of a family required to be observed by employers to prevent damages
under Article 2180 refers to due diligence in the selection and supervision of
employees in order to protect the public. 46
With the allegation and subsequent proof of negligence against the defendant
driver and of an employer-employee relation between him and his co-defendant
MMTC in this instance, the case in undoubtedly based on aquasi-delict under
Article 2180 47 When the employee causes damage due to his own negligence
while performing his own duties, there arises the juris tantum presumption that
the employer is negligent, 48 rebuttable only by proof of observance of the
diligence of a good father of a family. For failure to rebut such legal presumption
of negligence in the selection and supervision of employees, the employer is
likewise responsible for damages, 49the basis of the liability being the relationship
of pater familias or on the employer's own negligence. 50
As early as the case of Gutierrez vs. Gutierrez, 51 and thereafter, we have
consistently held that where the injury is due to the concurrent negligence of the
drivers of the colliding vehicles, the drivers and owners of the said vehicles shall
be primarily, directly and solidarily liable for damages and it is immaterial that
one action is based onquasi-delict and the other on culpa contractual, as the
solidarily of the obligation is justified by the very nature thereof. 52
It should be borne in mind that the legal obligation of employers to observe due
diligence in the selection and supervision of employees is not to be considered as
an empty play of words or a mere formalism, as appears to be the fashion of the
times, since the non-observance thereof actually becomes the basis of their
vicarious liability under Article 2180.
On the matter of selection of employees, Campo vs. Camarote, supra, lays down
this admonition:
. . . . In order tat the owner of a vehicle may be considered as
having exercised all diligence of a good father of a family, he
should not have been satisfied with the mere possession of a
professional driver's license; he should have carefully examined
the applicant for employment as to his qualifications, his
 experience and record of service. These steps appellant failed
to observe; he has therefore, failed to exercise all due diligence
required of a good father of a family in the choice or selection
of driver.
Due diligence in the supervision of employees, on the other hand, includes the
formulation of suitable rules and regulations for the guidance of employees and
the issuance of proper instructions intended for the protection of the public and
persons with whom the employer has relations through his or its employees and
the imposition of necessary disciplinary measures upon employees in case of
breach or as may be warranted to ensure the performance of acts indispensable
to the business of and beneficial to their employer. 53 To this, we add that actual
implementation and monitoring of consistent compliance with said rules should be
the constant concern of the employer, acting through dependable supervisors who
should regularly report on their supervisory functions.
In order that the defense of due diligence in the selection and supervision of
employees may be deemed sufficient and plausible, it is not enough to emptily
invoke the existence of said company guidelines and policies on hiring and
supervision. As the negligence of the employee gives rise to the presumption of
negligence on the part of the employer, the latter has the burden of proving that
it has been diligent not only in the selection of employees but also in the actual
supervision of their work. The mere allegation of the existence of hiring
procedures and supervisory policies, without anything more, is decidedly not
sufficient to overcome presumption.
We emphatically reiterate our holding, as a warning to all employers, that "(t)he
mere formulation of various company policies on safety without showing that they
were being complied with is not sufficient to exempt petitioner from liability
arising from negligence of its employees. It is incumbent upon petitioner to show
that in recruiting and employing the erring driver the recruitment procedures and
company policies on efficiency and safety were followed." 54 Paying lip-service to
these injunctions or merely going through the motions of compliance therewith
will warrant stern sanctions from the Court.
These obligations, imposed by the law and public policy in the interests and for
the safety of the commuting public, herein petitioner failed to perform.
Respondent court was definitely correct in ruling that ". . . due diligence in the
selection and supervision of employee (is) not proved by mere testimonies to the
effect that its applicant has complied with all the company requirements before
one is admitted as an employee but without proof thereof." 55 It is further a
distressing commentary on petitioner that it is a government-owned public utility,
maintained by public funds, and organized for the public welfare.
The Court it is necessary to once again stress the following rationale behind these
all-important statutory and jurisprudential mandates, for it has been observed
that despite its pronouncement in Kapalaran Bus Line vs. Coronado, et al., supra,
there has been little improvement in the transport situation in the country:
In requiring the highest possible degree of diligence from
common carriers and creating a presumption of negligence
against them, the law compels them to curb the recklessness of
their drivers. While the immediate beneficiaries of the standard
of extraordinary diligence are, of course, the passengers and
owners of the cargo carried by a common carrier, they are not
the only persons that the law seeks to benefit. For if common
carriers carefully observe the statutory standard of
extraordinary diligence in respect of their own passengers, they
cannot help but simultaneously benefit pedestrians and the
owners and passengers of other vehicles who are equally
entitled to the safe and convenient use of our roads and
highways. The law seeks to stop and prevent the slaughter and
maiming of people (whether passengers or not) and the
destruction of property (whether freight or not) on our highways
by buses, the very size and power of which seem often to
inflame the minds of their drivers. . . .
Finally, we believe that respondent court acted in the exercise of sound
discretion when it affirmed the trial court's award, without requiring the payment
of interest thereon as an item of damages just because of delay in the
determination thereof, especially since private respondent did not specifically
pray therefor in her complaint. Article 2211 of the Civil Code provides that
in quasi-delicts, interest as a part of the damages may be awarded in the
discretion of the court, and not as a matter of right. We do not perceive that
there have been international dilatory maneuvers or any special circumstances
which would justify that additional award and, consequently, we find no reason to
disturb said ruling.
WHEREFORE, the impugned decision of respondent Court of Appeals is hereby
AFFIRMED.
SO ORDERED.
Narvasa, C.J. and Nocon, JJ., concur.
Padilla, J., is on leave.
# Footnotes
1 Rollo, 24-25.
2 Civil Case No. C-8176, entitled "Nenita R. Custodio, assisted by
her parents, Rodolfo A. Custodio and Gloria R. Custodio vs.
Agudo R. Calebag, Victorino Lamayo, Godofredo C. Leonardo,
and Metro Manila Transit Corporation," Court of First Instance of
Rizal, Branch 35, Caloocan City; Original Record, 1-4.
3 Ibid., 17-22.
4 Ibid., 36-41.
5 Ibid., 54.
6 Ibid., 57.
7 TSN, September 2, 1982, 4-16.
8 Ibid., June 10, 1988, 3-12.
9 Ibid., April 29, 1988, 2-8.
10 Civil Case No. 8176, Regional Trial Court, Branch 125,
Caloocan City; Judge Geronimo S. Mangay, presiding.
11 Original Record, 177.
12 Ibid., 178-181.
13 Ibid., 195.
14 Ca-G.R. CV No. 24680; per Justice Regina G. Ordoñez-
Benitez, with Justices Jose A.R. Melo and Emilio C. Cui,
concurring; Rollo, 24-30.
15 Rollo, 33-34.
16 Ibid., 2. 48 Bahia vs. Litonjua, et al., 30 Phil. 624 (1915); Campo vs.
17 Ibid., CA-G.R CV No. 24680, 63-72. Camarote, supra; Phoenix Construction, Inc. vs. Intermediate
18 Rollo, 2. Appellate Court, et al., 148 SCRA 353 (1987); McKee, et al. vs.
19 Ibid., 7. Intermediate Appellate Court, et al., 211 SCRA 517 (1992).
20 143 SCRA 643 (1986). 49 Lanuzo vs. Ping, et al., supra, and cases cited therein.
21 American General Insurance Co. vs. Intermediate Appellee 50 Bahia vs. Litonjua, et al., supra; Yamada vs. Manila Railroad
Court, et al., 150 SCRA 133 (1987). Co., 33 Phil. 8 (1915); McKee, et al. vs. Intermediate Appellate
22 100 Phil. 459 (1956). Court, et al., supra.
23 Memorandum for Petitioner, 11-15; Rollo, 16-21. 51 56 Phil. 177 (1913); Cf. Barredo vs. Garcia, supra; Viluan vs.
24 Comment of Private Respondent, 3-4; Rollo, 47-48. Court of Appeals, et al., 16 SCRA 742, (1966); Anuran vs. Buño,
25 San Miguel Corporation vs. Court of Appeals, et al., 185 SCRA 17 SCRA 224 (1966); Malipol vs. Tan, 55 SCRA 202 (1974);
722 (1990). Poblete vs. Fabron, 93 SCRA 200 (1979); Pleno vs. Court of
26 Medina vs. Asistio, Jr., et al., 191 SCRA 218 (1990). Appeals, et al., supra; Kapalaran Bus Line vs. Coronado, 176
27 Cathay Insurance Co. vs. Court of Appeals, e al., 151 SCRA SCRA 792 (1989).
710 (1987); Hernandez vs. Court of Appeals, et al., 160 SCRA 52 Art. 1207, Civil Code.
821 (1988); Philippine National Bank vs. Court of Appeals, et al., 53 Filamer Christian Institute vs. Intermediate Appellate Court,
183 SCRA 133 (1990); BA Finance Corporation vs. Court of et al., 212 SCRA 637 (1992).
Appeals, et al., 201 SCRA 157 (1991). 54 Pantranco North Express Inc. vs. Baesa, 179 SCRA 384 (1989).
28 Manlapaz vs. Court of Appeals, et al., 147 SCRA 236 (1987); See also Franco, et al. vs. Intermediate Appellate Court, et al.,
Medina vs. Asistio, Jr., supra; Calalang vs. Intermediate 178 SCRA 331 (1989).
Appellate Court, et al., 194 SCRA 514 (1991). 55 Rollo, 28.
29 Valenzuela, et al. vs. Court of Appeals, et al., 191 SCRA 1
(1991).
30 Roman Catholic Bishop of Malolos, et al. vs. Intermediate
Appellate Court, et al., 191 SCRA 411 (1990).
31 Cea vs. Villanueva, 18 Phil. 538 (1911); Barcelo, etc. vs. The
Manila Electric Railroad and Light Company, 29 Phil. 351 (1915);
De la Riva vs. Molina, 32 Phil. 277 (1915); Agdoro vs. Philippine
Mining Industrial Co., 45 Phil. 816 (1924).
32 Annex C, Petition; Rollo, 41-42.
33 Annex B, ibid.; id., 28-29.
34 Section 1, Rule 131, Rules of Court.
35 Stronghold Insurance Company, Inc. vs. Court of Appeals, et
al., 173 SCRA 619 (1989).
36 Republic vs. Court of Appeals, et al., 182 SCRA 290
(1990), citing Tai Tong Chuache & Co. vs. The Insurance
Commission, et al., 158 SCRA 366 (1988); Republic vs. Court of
Appeals, et al., 204 SCRA 160 (1991).
37 U.S. vs. Tria, 17 Phil. 303 (1910).
38 See Pleno vs. Court of Appeals, et al., 161 SCRA 160 (1991).
39 See Garcia, et al. vs. Gonzales, et al., 183 SCRA 72 (1990).
40 54 O.G., No. 31, 7415 (1958).
41 Petition, 6-7; Rollo, 14-15.
42 Supra, Fn. 34.
43 Andamo, et al. vs. Intermediate Appellate Court, et al., 191
SCRA 195 (1990).
44 Tolentino, A., Commentaries and Jurisprudence on the Civil
Code of the Philippines, Vol. V, 1959 ed., 519.
45 Martin vs. Court of Appeals, et al., 205 SCRA 591 (1992).
46 Barredo vs. Garcia, 73 Phil. 607 (1942).
47 Lanuzo vs. Ping, et al., 100 SCRA 205 (1980).
 FIRST DIVISION
G.R. No. L-83524 October 13, 1989
ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners,
vs.
HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.
Rodolfo D. Mapile for petitioners.
Jose Al. Perez for private respondent.
GANCAYCO, J.:
The principal issue in this Petition for Review is whether or not a Complaint for
damages instituted by the petitioners against the private respondent arising from
a marine collision is barred by the statute of limitations.
The record of the case discloses that in the early morning of April 8, 1976, the
F/B Marjolea, a fishing boat owned by the petitioners Ernesto Kramer, Jr. and
Marta Kramer, was navigating its way from Marinduque to Manila. Somewhere
near Maricabon Island and Cape Santiago, the boat figured in a collision with an
inter-island vessel, the M/V Asia Philippines owned by the private respondent
Trans-Asia Shipping Lines, Inc. As a consequence of the collision, the F/B Marjolea
sank, taking with it its fish catch.
After the mishap, the captains of both vessels filed their respective marine
protests with the Board of Marine Inquiry of the Philippine Coast Guard. The
Board conducted an investigation for the purpose of determining the proximate
cause of the maritime collision.
On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and
its fish catch was attributable to the negligence of the employees of the private
respondent who were on board the M/V Asia Philippines during the collision. The
findings made by the Board served as the basis of a subsequent Decision of the
Commandant of the Philippine Coast Guard dated April 29, 1982 wherein the
second mate of the M/V Asia Philippines was suspended from pursuing his
profession as a marine officer. 1
On May 30, 1985, the petitioners instituted a Complaint for damages against the
private respondent before Branch 117 of the Regional Trial Court in Pasay
City. 2 The suit was docketed as Civil Case No. 2907-P.
The private respondent filed a Motion seeking the dismissal of the Complaint on
the ground of prescription. He argued that under Article 1146 of the Civil
Code, 3 the prescriptive period for instituting a Complaint for damages arising
from a quasi-delict like a maritime collision is four years. He maintained that the
petitioners should have filed their Complaint within four years from the date
when their cause of action accrued, i.e., from April 8, 1976 when the maritime
collision took place, and that accordingly, the Complaint filed on May 30, 1985
was instituted beyond the four-year prescriptive period.
For their part, the petitioners contended that maritime collisions have
peculiarities and characteristics which only persons with special skill, training and
experience like the members of the Board of Marine Inquiry can properly analyze
and resolve. The petitioners argued that the running of the prescriptive period
was tolled by the filing of the marine protest and that their cause of action
accrued only on April 29, 1982, the date when the Decision ascertaining the
negligence of the crew of the M/V Asia Philippines had become final, and that the
four-year prescriptive period under Article 1146 of the Civil Code should be
computed from the said date. The petitioners concluded that inasmuch as the
Complaint was filed on May 30, 1985, the same was seasonably filed.
In an Order dated September 25, 1986, 4 the trial court denied the Motion filed by
the private respondent. The trial court observed that in ascertaining negligence
relating to a maritime collision, there is a need to rely on highly technical aspects
attendant to such collision, and that the Board of Marine Inquiry was constituted
pursuant to the Philippine Merchant Marine Rules and Regulations, which took
effect on January 1, 1975 by virtue of Letter of Instruction No. 208 issued on
August 12, 1974 by then President Ferdinand E. Marcos, precisely to answer the
need. The trial court went on to say that the four-year prescriptive period
provided in Article 1146 of the Civil Code should begin to run only from April 29,
1982, the date when the negligence of the crew of the M/V Asia Philippines had
been finally ascertained. The pertinent portions of the Order of the trial court are
as follows —
Considering that the action concerns an incident involving a
collision at sea of two vehicles and to determine negligence for
that incident there is an absolute need to rely on highly
technical aspects attendant to such collisions. It is obviously to
answer such a need that the Marine Board of Inquiry (Sic) was
constituted pursuant to the Philippine Merchant Marine Rules
and Regulations which became effective January 1, 1975 under
Letter of Instruction(s) No. 208 dated August 12, 1974. The
relevant section of that law (Art. XVI/b/ provided as follow(s):
1. Board of Marine Inquiry (BMI) — Shall have the
jurisdiction to investigate marine accidents or
casualties relative to the liability of shipowners and
officers, exclusive jurisdiction to investigate
cases/complaints against the marine officers; and to
review all proceedings or investigation conducted by
the Special Boards of Marine Inquiry.
2. Special Board of Marine Inquiry. — Shall have
original jurisdiction to investigate marine casualties
and disasters which occur or are committed within the
limits of the Coast Guard District concerned or those
referred by the Commandant.
The Court finds reason in the argument of the plaintiff that
marine incidents have those 'peculiarities which only persons of
special skill, training and exposure can rightfully decipher and
resolve on the matter of the negligence and liabilities of parties
involved and inasmuch as the report of the Board of Inquiry (sic)
admittedly came out only on April 29, 1982, the prescriptive
period provided x x x under Art. 1146 of the Civil Code should
begin to run only from that date. The complaint was filed with
this Court on May 10, 1985, hence the statute of limitations can
not constitute a bar to the filing of this case. 5
The private respondent elevated the case to the Court of Appeals by way of a
special civil action for certiorari and prohibition, alleging therein that the trial
court committed a grave abuse of discretion in refusing to dismiss the Complaint
filed by the petitioners. The case was assigned to the Second Division of the
appellate court and was docketed as Case No. CA-G.R. SP No. 12032. 6
In a Decision dated November 27, 1987, 7 and clarified in a Resolution dated
January 12, 1988, 8 the Court of Appeals granted the Petition filed by the private
respondent and ordered the trial court to dismiss the Complaint. The pertinent
portions of the Decision of the appellate court are as follows —
It is clear that the cause of action of private respondent (the
herein petitioners Ernesto Kramer, Jr. and Marta Kramer)
accrued from the occurrence of the mishap because that is the
precise time when damages were inflicted upon and sustained
by the aggrieved party and from which relief from the court is
presently sought. Private respondents should have immediately
instituted a complaint for damages based on a quasi-delict
within four years from the said marine incident because its
cause of action had already definitely ripened at the onset of
the collision. For this reason, he (sic) could cite the negligence
on the part of the personnel of the petitioner to exercise due
care and lack of (sic) diligence to prevent the collision that
resulted in the total loss of their x x x boat.
We can only extend scant consideration to respondent judge's
reasoning that in view of the nature of the marine collision that
allegedly involves highly technical aspects, the running of the
prescriptive period should only commence from the finality of
the investigation conducted by the Marine Board of Inquiry (sic)
and the decision of the Commandant, Philippine Coast Guard,
who has original jurisdiction over the mishap. For one, while it
is true that the findings and recommendation of the Board and
the decision of the Commandant may be helpful to the court in
ascertaining which of the parties are at fault, still the former
(court) is not bound by said findings and decision. Indeed, the
same findings and decision could be entirely or partially
admitted, modified, amended, or disregarded by the court
according to its lights and judicial discretion. For another, if the
accrual of a cause of action will be made to depend on the
action to be taken by certain government agencies, then
necessarily, the tolling of the prescriptive period would hinge
upon the discretion of such agencies. Said alternative it is easy
to foresee would be fraught with hazards. Their investigations
might be delayed and lag and then witnesses in the meantime
might not be available or disappear, or certain documents may
no longer be available or might be mislaid. ... 9
The petitioners filed a Motion for the reconsideration of the said Decision but the
same was denied by the Court of Appeals in a Resolution dated May 27, 1988. 10
Hence, the instant Petition wherein the arguments raised by the petitioner before
the trial court are reiterated. 11 In addition thereto, the petitioner contends that
the Decision of the Court of Appeals 12 The private respondent filed its Comment
on the Petition seeking therein the dismissal of the same. 13 It is also contended
by the private respondent that the ruling of the Court in Vasquez is not applicable
to the case at bar because the said case involves a maritime collision attributable
to a fortuitous event. In a subsequent pleading, the private respondent argues
that the Philippine Merchant Marine Rules and Regulations cannot have the effect
of repealing the provisions of the Civil Code on prescription of actions. 14
On September 19,1988, the Court resolved to give due course to the
petition. 15 After the parties filed their respective memoranda, the case was
deemed submitted for decision.
The petition is devoid of merit. Under Article 1146 of the Civil Code, an action
based upon a quasi-delict must be instituted within four (4) years. The
prescriptive period begins from the day the quasi-delict is committed. In Paulan
vs. Sarabia, 16 this Court ruled that in an action for damages arising from the
collision of two (2) trucks, the action being based on a quasi-delict, the four (4)
year prescriptive period must be counted from the day of the collision.
In Espanol vs. Chairman, Philippine Veterans Administration, 17
this Court held as
follows-
The right of action accrues when there exists a cause of action,
which consists of 3 elements, namely: a) a right in favor of the
plaintiff by whatever means and under whatever law it arises or
is created; b) an obligation on the part of defendant to respect
such right; and c) an act or omission on the part of such
defendant violative of the right of the plaintiff ... It is only
when the last element occurs or takes place that it can be said
in law that a cause of action has arisen ... .
From the foregoing ruling, it is clear that the prescriptive period must be counted
when the last element occurs or takes place, that is, the time of the commission
of an act or omission violative of the right of the plaintiff, which is the time when
the cause of action arises.
It is therefore clear that in this action for damages arising from the collision of
two (2) vessels the four (4) year prescriptive period must be counted from the day
of the collision. The aggrieved party need not wait for a determination by an
administrative body like a Board of Marine Inquiry, that the collision was caused
by the fault or negligence of the other party before he can file an action for
damages. The ruling in Vasquez does not apply in this case. Immediately after the
collision the aggrieved party can seek relief from the courts by alleging such
negligence or fault of the owners, agents or personnel of the other vessel.
Thus, the respondent court correctly found that the action of petitioner has
prescribed. The collision occurred on April 8, 1976. The complaint for damages
was filed iii court only on May 30, 1 985, was beyond the four (4) year prescriptive
period.
WHEREFORE, the petition is dismissed. No costs.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.
Footnotes
1 Pages 26 to 32, Rollo.
2 Pages 33 to 36, Rollo.
3 Article 1146 of the Civil Code provides: "The following actions
must be instituted within four years: x x x; (2) Upon a quasi-
delict."
4 Pages 42 and 43, Rollo. The Order was written by then Judge,
now Court of Appeals Associate Justice Cezar D. Francisco.
5 Page 43, Rollo.
6 The Second Division of the Court of Appeals was then
composed of Justices Oscar R. Victoriano, Manuel T. Reyes and
Hector C. Fule
7 Pages 16 to 21, Rollo. Justice Fule wrote the Decision of the
Court of Appeals.
8 Page 23, Rollo.
9 Pages 19 and 20, Rollo.
10 Page 25, Rollo.
11 Pages 2 to 14, Rollo.
12 138 SCRA 553 (1985).
13 Pages 46 to 48, Rollo.
14 Page 70, Rollo.
15 Page 49, Rollo.
16 G.R. L-1 0542, July 31, 1952.
17 137 SCRA 314 (1985).
 FIRST DIVISION
G.R. No. L-85868 October 13, 1989
ALLIED BANKING CORPORATION, petitioner,
vs.
COURT OF APPEALS AND JOSELITO Z. YUJUICO, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Balgos & Perez Law Offices for respondents.
GANCAYCO, J.:
What started as a simple collection suit and which developed into an intricate
question of procedure is the focus of this petition for review on certiorari.
The present petition seeks the reversal of the decision of the Court of Appeals in
CA-G.R. SP No. 14759 dated September 5, 1988 entitled "Joselito Z. Yujuico vs.
Hon. Domingo D. Panis, RTC Judge of Manila Branch LXI and Allied Banking
Corp. 1 and the resolution dated November 9,1988 denying petitioner's motion for
reconsideration of the said decision. 2
The antecedent facts of the case are as follows:
On April 1, 1976, private respondent Joselito Z. Yujuico obtained a loan from the
General Bank and Trust Company (GENBANK) in the amount of Five Hundred
Thousand pesos (P500,000.00), payable on or before April 1, 1977. As evidence
thereof, private respondent issued a corresponding promissory note in favor of
GENBANK. At the time private respondent incurred the obligation, he was then a
ranking officer of GENBANK and a member of the family owning the controlling
interest in the said bank.
On March 25,1977, the Monetary Board of the Central Bank issued Resolution No.
675 forbidding GENBANK from doing business in the Philippines. This was followed
by Resolution No. 677 issued by the Monetary Board on March 29, 1977 ordering
the liquidation of GENBANK.
It appears that in a Memorandum of Agreement dated May 9, 1977 executed by
and between Allied Banking Corporation (ALLIED) and Arnulfo Aurellano as
Liquidator of GENBANK, ALLIED acquired all the assets and assumed the liabilities
of GENBANK, which includes the receivable due from private respondent under
the promissory note.
Upon failing to comply with the obligation under the promissory note, petitioner
ALLIED, on February 7, 1979, filed a complaint against private respondent for the
collection of a sum of money. This case was docketed as Civil Case No. 121474
before the then Court of First Instance of Manila (now Regional Trial Court).
Sometime in 1987 and in the course of the proceedings in the court below, private
respondent, then defendant in the court below, filed a Motion to Admit
Amended/Supplemental Answer and Third-Party Complaint. Private respondent
sought to implead the Central Bank and Arnulfo Aurellano as third-party
defendants. It was alleged in the third-party complaint that by reason of the
tortious interference by the Central Bank with the affairs of GENBANK, private
respondent was prevented from performing his obligation under the loan such that
he should not now be held liable thereon.
Acting on the motion and on the opposition filed thereto, the Regional Trial Court
through the Hon. Judge Felix B. Mintu issued an order dated August 13,1987
denying the admission of the third- party complaint but admitting private
respondent's amended/supplemental answer.
When the case was re-raffled to Branch 61 of the Regional Trial Court of Manila,
presiding Judge Domingo D. Panis, on February 29, 1 988, reiterated the order
denying the admission of private respondent's third-party complaint and admitting
the amended/supplemental answer. When both parties filed their respective
motions for partial reconsideration, the Hon. Judge Panis issued an order dated
April 18, 1988 denying both motions.
Thereupon, private respondent filed with the Court of Appeals a petition for
certiorari 3 on June 1, 1988 questioning the orders of Hon. Judge Panis dated
February 29, 1988 denying private respondent's motion to admit third-party
complaint, and April 18, 1988 denying private respondent's motion for partial
reconsideration of the February 29,1988 order.
On September 5, 1988, the Court of Appeals rendered the assailed decision, the
dispositive portion of which reads:
WHEREFORE, finding grave abuse of discretion on the part of the
respondent Judge, the Order of February 29, 1988 as well as
that of April 18, 1988 insofar as it denies petitioner's motion to
admit his third party complaint, is hereby declared null and
void. Respondent judge is hereby ordered to admit the proposed
third-party complaint. Cost de oficio.
SO ORDERED. 4
A motion for reconsideration thereof filed by petitioner was denied in a resolution
dated November 9, 1988. Petitioner assigns the following errors:
I
RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT HON.
JUDGE PANIS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING ADMISSION TO
PRIVATE RESPONDENTS THIRD-PARTY COMPLAINT, CONSIDERING THAT:
A. PRIVATE RESPONDENT'S PROPOSED THIRD-
PARTY COMPLAINT DOES NOT STATE A CAUSE
OF ACTION IN RESPECT OF PETITIONERS CLAIM.
B. THE ALLEGED CAUSE OF ACTION SET FORTH
IN PRIVATE RESPONDENTS PROPOSED THIRD-
PARTY COMPLAINT HAS ALREADY PRESCRIBED.
C. THE ADMISSION OF PRIVATE RESPONDENT'S
PROPOSED THIRD-PARTY COMPLAINT WILL
ONLY CAUSE FURTHER UNNECESSARY DELAY IN
THE DISPOSITION OF THE CASE OF PETITIONER
AGAINST PRIVATE RESPONDENT.
II
CONTRARY TO THE RULING OF RESPONDENT COURT OF APPEALS, THE RULE
PRESCRIBING THAT DEFENSES NOT RAISED IN THE COURT BELOW CANNOT BE
RAISED FOR THE FIRST TIME ON APPEAL IS NOT APPLICABLE TO SPECIAL CIVIL
ACTIONS OF CERTIORARI.5
From the foregoing assignment of errors, petitioner would like Us to resolve the
following issues: (a) Is there a proper ground to admit the third-party complaint?;
and (b) assuming that there is, has the cause of action under the third-party
complaint prescribed?
A third-party complaint is a procedural device whereby a "third-party who is
neither a party nor privy to the act or deed complained of by the plaintiff, may be
brought into the case with leave of court, by the defendant, who acts as third-
party plaintiff to enforce against such third-party defendant a right for
contribution, indemnity, subrogation or any other relief, in respect of the plaintiff
s claim . 6 The third party complaint is actually independent of, separate and
distinct from the plaintiffs complaint. Such that, were it not for this provision of
the Rules of Court, it would have to be filed separately from the original
complaint by the defendant against the third-party. 7
After going through the records of this case, this Court finds that the third-party
plaintiffs claim is premised not only on what was alleged as the tortious
interference by the third-party defendants with the affairs of GENBANK. More
importantly, attention should have been focused on the fact that this allegation is
wedded to a decision rendered by the Court of Appeals in CA-G.R. CV No. 03642
which affirmed the decision of the Regional Trial Court in Special Proceedings No.
107812. 8 We quote the pertinent portion of the affirmed decision, to wit:
Based on the foregoing facts, the Court finds the liquidation of
GBTC as embodied in Annex "A" and Annex "B" of the petition,
which merely adopted the bid of the Lucio Tan group as the
liquidation plan of GBTC as plainly arbitrary and made in bad
faith and therefore the same must be annulled and set
aside. ... 9 (Italics supplied).
This decision, which declared as null and void the liquidation of GENBANK,
prompted private respondent herein to file a third-party complaint against the
Central Bank and Arnulfo Aurellano on the theory that he has a right to proceed
against them in respect of ALLIED's claim. In the words of private respondent, he
"[s]eeks to transfer liability for the default imputed against him by the petitioner
to the proposed third-party defendants because of their tortious acts which
prevented him from performing his obligations. 10 Thus, if at the outset the issue
appeared to be a simple maker's liability on a promissory note, it became complex
by the rendition of the aforestated decision.
As early as Capayas vs. Court of First Instance of Albay, 11 this Court had already
outlined the tests to determine whether the claim for indemnity in a third-party
claim is "in respect of plaintiff's claim." They are: (a) whether it arises out of the
same transaction on which the plaintiffs claim is based, or whether the third-
party's claim, although arising out of another or different contract or transaction,
is connected with the plaintiffs claim; (b) whether the third-party defendant
would be liable to the plaintiff or to the defendant for all or part of the plaintiffs
claim against the original defendant, although the third-party defendant's liability
arises out of another transaction; or (c) whether the third-party defendant may
assert any defense which the third-party plaintiff has, or may have against
plaintiff s claim. 12
While the claim of third-party plaintiff, private respondent herein, does not fall
under test (c), there is no doubt that such claim can be accommodated under
tests (a) and (b) above-mentioned. Whether or not this Court agrees with the
petitioner's assertion that the claim does not "arise out of the same transaction on
which the plaintiff s claim is based," it cannot be denied that the third-party's
claim (although arising out of another or different contract or transaction) is
connected with plaintiffs claim. The judgement of the Court of Appeals in CA-
G.R. CV No. 03642 is the substantive basis of private respondent's proposed third-
party complaint. Put differently, there is merit in private respondent's position
that if held liable on the promissory note, they are seeking, by means of the
third-party complaint, to transfer unto the third-party defendants liability on the
note by reason of the illegal liquidation of GENBANK which, in the first place, was
the basis for the assignment of the promissory note. If there was any confusion at
all on the ground/s alleged in the third-party complaint, it was the claim of third-
party plaintiff for other damages in addition to any amount which he may be
called upon to pay under the original complaint. 13 While these allegations in the
proposed third-party complaint may cause delay in the disposition of the main
suit, it cannot, however, be outrightly asserted that it would not serve any
purpose.
It is one thing to say that a third-party defendant may be held liable to indemnify
or reimburse the third-party plaintiff "in respect of plaintiffs claim," but it is quite
another to state that a third-party defendant may be held liable to a third-party
plaintiff. The second instance may not carry with it the necessary connection to
the main cause of action and, therefore, is not allowed by the Rules for it
introduces a controversy that is entirely foreign to and distinct from the main
cause. The first instance is allowable and should be allowed if it will help in
clarifying in a single proceeding the multifarious issues involved arising from a
single transaction.
It is this Court's pronouncement that the first instance is applicable in the present
situation.
As to the issue of prescription, it is the position of petitioner that the cause of
action alleged in the third-party complaint has already prescribed. 14 Being
founded on what was termed as tortious interference," petitioner asserts that
under the applicable provisions of the Civil Code on quasi-delict 15 the action
against third-party defendants should have been filed within four (4) years from
the date the cause of action accrued. On the theory that the cause of action
accrued on March 25, 1977, the date when the Monetary Board ordered GENBANK
to desist from doing business in the Philippines, petitioner maintains that the
claim should have been filed at the latest on March 25, 1981. 16 On the other
hand, private respondent relies on the "Doctrine of Relations" or "Relations Back
Doctrine" 17 to support his claim that the cause of action as against the proposed
third-party defendant accrued only on December 12,1986 when the decision in
CA-G.R. CV No. 03642 became final and executory. Thus, it is contended that
while the third party complaint was filed only on June 17,1987, it must be
deemed to have been instituted on February 7, 1979 when the complaint in the
case was filed.
There can be no question in this case that the action for damages instituted by
private respondent arising from the quasi-delict or alleged tortious interference"
should be filed within four (4) years from the day the cause of action accrued. 18
In the case of Español vs. Chairman, Philippine Veterans Administration, 19 this
Court ruled that it is from the date of the act or omission violative of the right of
a party when the cause of action arises and it is from this date that the 19 Article 1146, Civil Code; Paulan, et al. vs. Sarabia, et al.,
prescriptive period must be reckoned. G.R. L-10542, July 31, 1952.
Thus, while technically the third party complaint in this case may be admitted as 20 137 SCRA 314 (1985).
above discussed, however, since the cause of action accrued on March 25, 1980
when the Monetary Board ordered the General Bank to desist from doing business
in the Philippines while the third party complaint was filed only on June 17, 1987,
consequently, the action has prescribed. The third party complaint should not be
admitted.
WHEREFORE, the petition is GRANTED. The decision of the respondent Court of
Appeals dated September 5, 1988 and its resolution dated November 9, 1988
denying the motion for reconsideration filed by petitioner are hereby reversed
and set aside and declared null and void, and another judgment is hereby
rendered sustaining the orders of the trial court of February 29,1988 and April
18,1988, denying the admission of the third party complaint. No pronouncement
as to costs.
SO ORDERED.
Narvasa, Cruz, Griño-Aquino and Medialdea, JJ., concur.

Footnotes
1 Pages 42-49, Rollo; Justice Rodolfo A. Nocon was ponente, and
Justices Alfredo Marigomen and Fernando A. Santiago,
concurring.
2 Pages 51-57, Rollo.
3 Docketed as CA-G.R. SP No. 14759.
4 Page 48, Rollo.
5 Page 18, Rollo.
6 Section 12, Rule 6, Rules of Court; see also Annotations, 25
SCRA, 651 (1968).
7 Moran, Comments on the Rules of Court, 1979 ed., page 278.
8 Page 43, Rollo.
9 Page 55, Rollo.
10 Page 66, Rollo.
11 77 Phil. 181 (1946).
12 Ibid, page 183.
13 Page 48, Records in CA-G.R. SP No. 14759.
14 Pages 23-29, Rollo.
15 Articles 1146 and 2176, Civil Code.
16 Page 23, Rollo.
17 That principle of law by which an act done at one time is
considered by a fiction of law to have been done at some
antecedent period. It is a doctrine which, although of equitable
origin, has a well recognized application to proceedings at law;
a legal fiction invented to promote the ends of justice or to
prevent injustice and the occurrence of injuries where
otherwise there would be no remedy.
18 The doctrine, when invoked, must have connection with
actual fact, must be based on some antecedent lawful lights. It
has also been referred to as "the doctrine of relation back." (2
CJS 1310).