G.R. No.

116123 March 13, 1997 Instead, after disaffiliating themselves from the drivers' union,
individual respondents, through the National Organization of
SERGIO F. NAGUIAT, doing business under the name and style Workingmen ("NOWM"), a labor organization which they
SERGIO F. NAGUIAT ENT., INC., & CLARK FIELD TAXI, subsequently joined, filed a complaint5 against "Sergio F. Naguiat
INC., petitioners, doing business under the name and style Sergio F. Naguiat
vs.NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), Enterprises, Inc., Army-Air Force Exchange Services (AAFES) with
NATIONAL ORGANIZATION OF WORKINGMEN and its members, Mark Hooper as Area Service Manager, Pacific Region, and AAFES
LEONARDO T. GALANG, et al., respondents. Taxi Drivers Association with Eduardo Castillo as President," for
payment of separation pay due to termination/phase-out. Said
complaint was later amended6 to include additional taxi drivers who
PANGANIBAN, J.:
were similarly situated as complainants, and CFTI with Antolin T.
Naguiat as vice president and general manager, as party respondent.
Are private respondent-employees of petitioner Clark Field Taxi, Inc.,
who were separated from service due the closure of Clark Air Base,
In their complaint, herein private respondents alleged that they
entitled to separation pay and, if so, in what amount? Are officers of
were regular employees of Naguiat Enterprises, although their
corporations ipso facto liable jointly and severally with the
individual applications for employment were approved by CFTI. They
companies they represent for the payment of separation pay?
claimed to have been assigned to Naguiat Enterprises after having
been hired by CFTI, and that the former thence managed, controlled
These questions are answered by the Court in resolving this petition and supervised their employment. They averred further that they
for certiorari under Rule 65 of the Rules of Court assailing the were entitled to separation pay based on their latest daily earnings
Resolutions of the National Labor Relations Commission (Third of US$15.00 for working sixteen (16) days a month.
Division) 1 promulgated on February 28, 1994,2 and May 31,
1994.3 The February 28, 1994 Resolution affirmed with
In their position paper submitted to the labor arbiter, herein
modifications the decision4 of Labor Arbiter Ariel C. Santos in NLRC
petitioners claimed that the cessation of business of CFTI on
Case No. RAB-III-12-2477-91. The second Resolution denied the
November 26, 1991, was due to "great financial losses and lost
motion for reconsideration of herein petitioners.
business opportunity" resulting from the phase-out of Clark Air Base
brought about by the Mt. Pinatubo eruption and the expiration of
The NLRC modified the decision of the labor arbiter by granting the RP-US military bases agreement. They admitted that CFTI had
separation pay to herein individual respondents in the increased agreed with the drivers' union, through its President Eduardo
amount of US$120.00 for every year of service or its peso Castillo who claimed to have had blanket authority to negotiate with
equivalent, and holding Sergio F. Naguiat Enterprises, Inc., Sergio F. CFTI in behalf of union members, to grant its taxi driver-employees
Naguiat and Antolin T. Naguiat, jointly and severally liable with Clark separation pay equivalent to P500.00 for every year of service.
Field Taxi, Inc. ("CFTI").
The labor arbiter, finding the individual complainants to be regular
The Facts workers of CFTI, ordered the latter to pay them P1,200.00 for every
year of service "for humanitarian consideration," setting aside the
The following facts are derived from the records of the case: earlier agreement between CFTI and the drivers' union of P500.00
for every year of service. The labor arbiter rejected the allegation of
Petitioner CFTI held a concessionaire's contract with the Army Air CFTI that it was forced to close business due to "great financial
Force Exchange Services ("AAFES") for the operation of taxi services losses and lost business opportunity" since, at the time it ceased
within Clark Air Base. Sergio F. Naguiat was CFTI's president, while operations, CFTI was profitably earning and the cessation of its
Antolin T. Naguiat was its vice-president. Like Sergio F. Naguiat business was due to the untimely closure of Clark Air Base. In not
Enterprises, Incorporated ("Naguiat Enterprises"), a trading firm, it awarding separation pay in accordance with the Labor Code, the
was a family-owned corporation. labor arbiter explained:

Individual respondents were previously employed by CFTI as taxicab To allow respondents exemption from its (sic)
drivers. During their employment, they were required to pay a daily obligation to pay separation pay would be
"boundary fee" in the amount of US$26.50 for those working from inhuman to complainants but to impose a
1:00 a.m. to 12:00 noon, and US$27.00 for those working from 12:00 monetary obligation to an employer whose
noon to 12:00 midnight. All incidental expenses for the maintenance profitable business was abruptly shot (sic) down
of the vehicles they were driving were accounted against them, by force majeure would be unfair and unjust to
including gasoline expenses. say the least.7

The drivers worked at least three to four times a week, depending and thus, simply awarded an amount for "humanitarian
on the availability of taxicabs. They earned not less than US$15.00 consideration."
daily.
Herein individual private respondents appealed to the NLRC. In its
In excess of that amount, however, they were required to make cash Resolution, the NLRC modified the decision of the labor arbiter by
deposits to the company, which they could later withdraw every granting separation pay to the private respondents. The concluding
fifteen days. paragraphs of the NLRC Resolution read:

Due to the phase-out of the US military bases in the Philippines, The contention of complainant is partly correct. One-half
from which Clark Air Base was not spared, the AAFES was dissolved, month salary should be US$120.00 but this amount can
and the services of individual respondents were officially terminated not be paid to the complainant in U.S. Dollar which is not
on November 26, 1991. the legal tender in the Philippines. Paras, in commenting
on Art. 1249 of the New Civil Code, defines legal tender as
"that which a debtor may compel a creditor to accept in
The AAFES Taxi Drivers Association ("drivers' union"), through its payment of the debt. The complainants who are the
local president, Eduardo Castillo, and CFTI held negotiations as creditors in this instance can be compelled to accept the
regards separation benefits that should be awarded in favor of the Philippine peso which is the legal tender, in which case,
drivers. They arrived at an agreement that the separated drivers will the table of conversion (exchange rate) at the time of
be given P500.00 for every year of service as severance pay. Most of payment or satisfaction of the judgment should be used.
the drivers accepted said amount in December 1991 and January However, since the choice is left to the debtor,
1992. However, individual respondents herein refused to accept (respondents) they may choose to pay in US dollar."
theirs. (Phoenix Assurance Co. vs. Macondray & Co. Inc., L-25048,
May 13, 1975)
1
 In discharging the above obligations, Sergio F. Naguiat solidarily liable under the law for violation of the Labor Code, in this
Enterprises, which is headed by Sergio F. Naguiat and case, for nonpayment of their separation pay.
Antolin Naguiat, father and son at the same time the
President and Vice-President and General Manager, The Solicitor General unqualifiedly supports the allegations of
respectively, should be joined as indispensable party private respondents. In addition, he submits that the separate
whose liability is joint and several. (Sec. 7, Rule 3, Rules of personalities of respondent corporations and their officers should be
Court)8 disregarded and considered one and the same as these were used to
perpetrate injustice to their employees.
As mentioned earlier, the motion for reconsideration of herein
petitioners was denied by the NLRC. Hence, this petition with prayer The Court's Ruling
for issuance of a temporary restraining order. Upon posting by the
petitioners of a surety bond, a temporary restraining order9 was
As will be discussed below, the petition is partially meritorious.
issued by this Court enjoining execution of the assailed Resolutions.

First Issue: Amount of Separation Pay

Issues

Firmly, we reiterate the rule that in a petition for certiorari filed

The petitioners raise the following issues before this Court for
pursuant to Rule 65 of the Rules of Court, which is the only way a
resolution:
labor case may reach the Supreme Court, the petitioner/s must
clearly show that the NLRC acted without or in excess of jurisdiction
I. Whether or not public respondent NLRC (3rd or with grave abuse of discretion. 12
Div.) committed grave abuse of discretion
amounting to lack of jurisdiction in issuing the
Long-standing and well-settled in Philippine jurisprudence is the
appealed resolution;
judicial dictum that findings of fact of administrative agencies and
quasi-judicial bodies, which have acquired expertise because their
II. Whether or not Messrs. Teofilo Rafols and jurisdiction is confined to specific matters, are generally accorded
Romeo N. Lopez could validly represent herein not only great respect but even finality; and are binding upon this
private respondents; and, Court unless there is a showing of grave abuse of discretion, or
where it is clearly shown that they were arrived at arbitrarily or in
III. Whether or not the resolution issued by disregard of the evidence on record. 13
public respondent is contrary to law. 10
Nevertheless, this Court carefully perused the records of the instant
Petitioners also submit two additional issues by way of a case if only to determine whether public respondent committed
supplement 11 to their petition, to wit: that Petitioners Sergio F. grave abuse of discretion, amounting to lack of jurisdiction, in
Naguiat and Antolin Naguiat were denied due process; and that granting the clamor of private respondents that their separation pay
petitioners were not furnished copies of private respondents' appeal should be based on the amount of $240.00, allegedly their minimum
to the NLRC. As to the procedural lapse of insufficient copies of the monthly earnings as taxi drivers of petitioners.
appeal, the proper forum before which petitioners should have
raised it is the NLRC. They, however, failed to question this in their In their amended complaint before the Regional Arbitration Branch
motion for reconsideration. As a consequence, they are deemed to in San Fernando, Pampanga, herein private respondents set forth in
have waived the same and voluntarily submitted themselves to the detail the work schedule and financial arrangement they had with
jurisdiction of the appellate body. their employer. Therefrom they inferred that their monthly take-
home pay amounted to not less than $240.00. Herein petitioners did
Anent the first issue raised in their original petition, petitioners not bother to refute nor offer any evidence to controvert said
contend that NLRC committed grave abuse of discretion amounting allegations. Remaining undisputed, the labor arbiter adopted such
to lack or excess of jurisdiction in unilaterally increasing the amount facts in his decision. Petitioners did not even appeal from the
of severance pay granted by the labor arbiter. They claim that this decision of the labor arbiter nor manifest any error in his findings
was not supported by substantial evidence since it was based simply and conclusions. Thus, petitioners are in estoppel for not having
on the self-serving allegation of respondents that their monthly questioned such facts when they had all opportunity to do so.
take-home pay was not lower than $240.00. Private respondents, like petitioners, are bound by the factual
findings of Respondent Commission.
On the second issue, petitioners aver that NOWM cannot make legal
representations in behalf of individual respondents who should, Petitioners also claim that the closure of their taxi business was due
instead, be bound by the decision of the union (AAFES Taxi Drivers to great financial losses brought about by the eruption of Mt.
Association) of which they were members. Pinatubo which made the roads practically impassable to their
taxicabs. Likewise well-settled is the rule that business losses or
As to the third issue, petitioners incessantly insist that Sergio F. financial reverses, in order to sustain retrenchment of personnel or
Naguiat Enterprises, Inc. is a separate and distinct juridical entity closure of business and warrant exemption from payment of
which cannot be held jointly and severally liable for the obligations separation pay, must be proved with clear and satisfactory
of CFTI. And similarly, Sergio F. Naguiat and Antolin Naguiat were evidence. 14 The records, however, are devoid of such evidence.
merely officers and stockholders of CFTI and, thus, could not be held
personally accountable for corporate debts. The labor arbiter, as affirmed by NLRC, correctly found that
petitioners stopped their taxi business within Clark Air Base because
Lastly, Sergio and Antolin Naguiat assail the Resolution of NLRC of the phase-out of U.S. military presence thereat. It was not due to
holding them solidarily liable despite not having been impleaded as any great financial loss because petitioners' taxi business was
parties to the complaint. earning profitably at the time of its closure.

Individual respondents filed a comment separate from that of With respect to the amount of separation pay that should be
NOWM. In sum, both aver that petitioners had the opportunity but granted, Article 283 of the Labor Code provides:
failed to refute, the taxi drivers' claim of having an average monthly
earning of $240.00; that individual respondents became members of . . . In case of retrenchment to prevent losses
NOWM after disaffiliating themselves from the AAFES Taxi Drivers and in cases of closures or cessation of
Association which, through the manipulations of its President operations of establishment or undertaking not
Eduardo Castillo, unconscionably compromised their separation pay; due to serious business losses or financial
and that Naguiat Enterprises, being their indirect employer, is reverses, the separation pay shall be equivalent

2
 to one (1) month pay or at least one-half (1/2) concessionaire, agreed to purchase from AAFES for a certain amount
month pay for every year of service, whichever is within a specified period a fleet of vehicles to be "ke(pt) on the
higher. A fraction of at least six (6) months shall road" by CFTI, pursuant to their concessionaire's contract. This
be considered one (1) whole year. indicates that CFTI became the owner of the taxicabs which became
the principal investment and asset of the company.
Considering the above, we find that NLRC did not commit grave
abuse of discretion in ruling that individual respondents were Private respondents failed to substantiate their claim that Naguiat
entitled to separation pay 15 in the amount $120.00 (one-half of Enterprises managed, supervised and controlled their employment.
$240.00 monthly pay) or its peso equivalent for every year of It appears that they were confused on the personalities of Sergio F.
service. Naguiat as an individual who was the president of CFTI, and Sergio F.
Naguiat Enterprises, Inc., as a separate corporate entity with a
Second Issue: NOWM's Personality to separate business. They presumed that Sergio F. Naguiat, who was
Represent Individual Respondents-Employees at the same time a stockholder and director 27 of Sergio F. Naguiat
Enterprises, Inc., was managing and controlling the taxi business on
behalf of the latter. A closer scrutiny and analysis of the records,
On the question of NOWM's authority to represent private
however, evince the truth of the matter: that Sergio F. Naguiat, in
respondents, we hold petitioners in estoppel for not having
supervising the taxi drivers and determining their employment
seasonably raised this issue before the labor arbiter or the NLRC.
terms, was rather carrying out his responsibilities as president of
NOWM was already a party-litigant as the organization representing
CFTI. Hence, Naguiat Enterprises as a separate corporation does not
the taxi driver-complainants before the labor arbiter. But petitioners
appear to be involved at all in the taxi business.
who were party-respondents in said complaint did not assail the
juridical personality of NOWM and the validity of its representations
in behalf of the complaining taxi drivers before the quasi-judicial To illustrate further, we refer to the testimony of a driver-claimant
bodies. Therefore, they are now estopped from raising such on cross examination.
question before this Court. In any event, petitioners acknowledged
before this Court that the taxi drivers allegedly represented by Atty. Suarez: Is it not true that you applied not with
NOWM, are themselves parties in this case. 16 Sergio F. Naguiat but with Clark Field Taxi?
Witness: I applied for (sic) Sergio F. Naguiat.
Third Issue: Liability of Petitioner- Atty. Suarez: Sergio F. Naguiat as an individual or the
Corporations and Their Respective Officers corporation?
Witness: Sergio F. Naguiat na tao.
Atty. Suarez: Who is Sergio F. Naguiat?
The resolution of this issue involves another factual finding that
Witness: He is the one managing the Sergio F. Naguiat
Naguiat Enterprises actually managed, supervised and controlled
Enterprises and he is the one whom we believe as our
employment terms of the taxi drivers, making it their indirect
employer
employer. As adverted to earlier, factual findings of quasi-judicial
Atty. Suarez: What is exactly the position of Sergio F.
bodies are binding upon the court in the absence of a showing of
Naguiat with the Sergio F. Naguiat Enterprises?
grave abuse of discretion.
Witness: He is the owner, sir.
Atty. Suarez: How about with Clark Field Taxi
Unfortunately, the NLRC did not discuss or give any explanation for Incorporated what is the position of Mr. Naguiat?
holding Naguiat Enterprises and its officers jointly and severally Witness: What I know is that he is a concessionaire.
liable in discharging CFTI's liability for payment of separation pay. xxx xxx xxx
We again remind those concerned that decisions, however concisely Atty. Suarez:But do you also know that Sergio F. Naguiat
written, must distinctly and clearly set forth the facts and law upon is the President of Clark Field Taxi, Incorporated?
which they are based. 17 This rule applies as well to dispositions by Witness:Yes, sir.
quasi-judicial and administrative bodies. Atty. Suarez:How about Mr. Antolin Naguiat what is his
role in the taxi services, the operation of the Clark Field
Naguiat Enterprise Not Liable Taxi, Incorporated?
Witness:He is the vice president. 28
In impleading Naguiat Enterprises as solidarily liable for the
obligations of CFTI, respondents rely on Articles 106, 18 107 19 and And, although the witness insisted that Naguiat Enterprises was his
109 20 of the Labor Code. employer, he could not deny that he received his salary from the
office of CFTI inside the base. 29

Based on factual submissions of the parties, the labor arbiter,

however, found that individual respondents were regular employees Another driver-claimant admitted, upon the prodding of counsel for
of CFTI who received wages on a boundary or commission basis. the corporations, that Naguiat Enterprises was in the trading
business while CFTI was in taxi services. 30

We find no reason to make a contrary finding. Labor-only

contracting exists where: (1) the person supplying workers to an In addition, the Constitution 31 of CFTI-AAFES Taxi Drivers
employer does not have substantial capital or investment in the Association which, admittedly, was the union of individual
form of tools, equipment, machinery, and work premises, among respondents while still working at Clark Air Base, states that
others; and (2) the workers recruited and placed by such person are members thereof are the employees of CFTI and "(f)or collective
performing activities which are directly related to the principal bargaining purposes, the definite employer is the Clark Field Taxi
business of the employer. 21 Independent contractors, meanwhile, Inc."
are those who exercise independent employment, contracting to do
a piece of work according to their own methods without being From the foregoing, the ineludible conclusion is that CFTI was the
subject to control of their employer except as to the result of their actual and direct employer of individual respondents, and that
Work. 22 Naguiat Enterprises was neither their indirect employer nor labor-
only contractor. It was not involved at all in the taxi business.
From the evidence proffered by both parties, there is no substantial
basis to hold that Naguiat Enterprises is an indirect employer of CFTI president
individual respondents much less a labor only contractor. On the solidarily liable
contrary, petitioners submitted documents such as the drivers'
applications for employment with CFTI, 23 and social security Petitioner-corporations would likewise want to avoid the solidary
remittances 24 and payroll 25 of Naguiat Enterprises showing that liability of their officers. To bolster their position, Sergio F. Naguiat
none of the individual respondents were its employees. Moreover, and Antolin T. Naguiat specifically aver that they were denied due
in the contract 26 between CFTI and AAFES, the former, as
3
process since they were not parties to the complaint below. 32 In the Sergio F. Naguiat, admittedly, was the president of CFTI who actively
broader interest of justice, we, however, hold that Sergio F. Naguiat, managed the business. Thus, applying the ruling in A.C. Ransom, he
in his capacity as president of CFTI, cannot be exonerated from joint falls within the meaning of an "employer" as contemplated by the
and several liability in the payment of separation pay to individual Labor Code, who may be held jointly and severally liable for the
respondents. obligations of the corporation to its dismissed employees.

A.C. Ransom Labor Union-CCLU vs. NLRC 33 is the case in point. A.C. Moreover, petitioners also conceded that both CFTI and Naguiat
Ransom Corporation was a family corporation, the stockholders of Enterprises were "close family corporations" 34 owned by the
which were members of the Hernandez family. In 1973, it filed an Naguiat family. Section 100, paragraph 5, (under Title XII on Close
application for clearance to close or cease operations, which was Corporations) of the Corporation Code, states:
duly granted by the Ministry of Labor and Employment, without
prejudice to the right of employees to seek redress of grievance, if (5) To the extent that the stockholders are
any. Backwages of 22 employees, who engaged in a strike prior to actively engage(d) in the management or
the closure, were subsequently computed at P164,984.00. Up to operation of the business and affairs of a close
September 1976, the union filed about ten (10) motions for corporation, the stockholders shall be held to
execution against the corporation, but none could be implemented, strict fiduciary duties to each other and among
presumably for failure to find leviable assets of said corporation. In themselves. Said stockholders shall be personally
its last motion for execution, the union asked that officers and liable for corporate torts unless the corporation
agents of the company be held personally liable for payment of the has obtained reasonably adequate liability
backwages. This was granted by the labor arbiter. In the insurance. (emphasis supplied)
corporation's appeal to the NLRC, one of the issues raised was: "Is
the judgment against a corporation to reinstate its dismissed
Nothing in the records show whether CFTI obtained
employees with backwages, enforceable against its officer and
"reasonably adequate liability insurance;" thus, what
agents, in their individual, private and personal capacities, who were
remains is to determine whether there was corporate tort.
not parties in the case where the judgment was rendered!" The
NLRC answered in the negative, on the ground that officers of a
corporation are not liable personally for official acts unless they Our jurisprudence is wanting as to the definite scope of "corporate
exceeded the scope of their authority. tort." Essentially, "tort" consists in the violation of a right given or
the omission of a duty imposed by law. 35 Simply stated, tort is a
breach of a legal duty. 36 Article 283 of the Labor Code mandates the
On certiorari, this Court reversed the NLRC and upheld the labor
employer to grant separation pay to employees in case of closure or
arbiter. In imposing joint and several liability upon the company
cessation of operations of establishment or undertaking not due to
president, the Court, speaking through Mme. Justice Ameurfina
serious business losses or financial reverses, which is the condition
Melencio-Herrera, ratiocinated this wise:
obtaining at bar. CFTI failed to comply with this law-imposed duty or
obligation. Consequently, its stockholder who was actively engaged
(b) How can the foregoing (Articles 265 and 273 in the management or operation of the business should be held
of the Labor Code) provisions be implemented personally liable.
when the employer is a corporation? The answer
is found in Article 212(c) of the Labor Code which
Furthermore, in MAM Realty Development vs. NLRC, 37 the Court
provides:
recognized that a director or officer may still be held solidarily liable
with a corporation by specific provision of law. Thus:
(c) "Employer" includes any person acting in the
interest of an employer, directly or indirectly. The
. . . A corporation, being a juridical entity, may act only
term shall not include any labor organization or
through its directors, officers and employees. Obligations
any of its officers or agents except when acting
incurred by them, acting as such corporate agents, are not
as employer.
theirs but the direct accountabilities of the corporation
they represent. True, solidary liabilities may at times be
The foregoing was culled from Section 2 of RA incurred but only when exceptional circumstances warrant
602, the Minimum Wage Law. Since RANSOM is such as, generally, in the following cases:
an artificial person, it must have an officer who
can be presumed to be the employer, being the
xxx xxx xxx
"person acting in the interest of (the) employer"
RANSOM. The corporation, only in the technical
sense, is the employer. 4. When a director, trustee or officer is made, by specific
provision of law, personally liable for his corporate action.
(footnotes omitted)
The responsible officer of an employer
corporation can be held personally, not to say
even criminally, liable for nonpayment of back As pointed out earlier, the fifth paragraph of Section 100 of the
wages. That is the policy of the law. . . . Corporation Code specifically imposes personal liability upon the
stockholder actively managing or operating the business and affairs
of the close corporation.
(c) If the policy of the law were otherwise, the
corporation employer can have devious ways for
evading payment of back wages. . . . In fact, in posting the surety bond required by this Court for the
issuance of a temporary restraining order enjoining the execution of
the assailed NLRC Resolutions, only Sergio F. Naguiat, in his
(d) The record does not clearly identify "the
individual and personal capacity, principally bound himself to
officer or officers" of RANSOM directly
comply with the obligation thereunder, i.e., "to guarantee the
responsible for failure to pay the back wages of
payment to private respondents of any damages which they may
the 22 strikers. In the absence of definite Proof in
incur by reason of the issuance of a temporary restraining order
that regard, we believe it should be presumed
sought, if it should be finally adjudged that said principals were not
that the responsible officer is the President of the
entitled thereto. 38
corporation who can be deemed the chief
operation officer thereof. Thus, in RA 602,
criminal responsibility is with the "Manager or in The Court here finds no application to the rule that a corporate
his default, the person acting as such." In officer cannot be held solidarily liable with a corporation in the
RANSOM. the President appears to be the absence of evidence that he had acted in bad faith or with
Manager. (Emphasis supplied.) malice. 39 In the present case, Sergio Naguiat is held solidarily liable

4
for corporate tort because he had actively engaged in the G.R. No. 168512 March 20, 2007
management and operation of CFTI, a close corporation.
ORLANDO D. GARCIA, JR., doing business under the name and style
Antolin Naguiat not personally liable COMMUNITY DIAGNOSTIC CENTER and BU CASTRO,1 Petitioners,
vs.RANIDA D. SALVADOR and RAMON SALVADOR, Respondents.
Antolin T. Naguiat was the vice president of the CFTI. Although he
carried the title of "general manager" as well, it had not been shown DECISION
that he had acted in such capacity. Furthermore, no evidence on the
extent of his participation in the management or operation of the YNARES-SANTIAGO, J.:
business was preferred. In this light, he cannot be held solidarily
liable for the obligations of CFTI and Sergio Naguiat to the private
This is a petition for review2 under Rule 45 of the Rules of Court
respondents.
assailing the February 27, 2004 Decision3 of the Court of Appeals in
CA-G.R. CV No. 58668 finding petitioner Orlando D. Garcia liable for
Fourth Issue: No Denial of Due Process gross negligence; and its June 16, 2005 Resolution4 denying
petitioner’s motion for reconsideration.
Lastly, in petitioners' Supplement to their original petition, they
assail the NLRC Resolution holding Sergio F. Naguiat and Antolin T. On October 1, 1993, respondent Ranida D. Salvador started working
Naguiat jointly and severally liable with petitioner-corporations in as a trainee in the Accounting Department of Limay Bulk Handling
the payment of separation pay, averring denial of due process since Terminal, Inc. (the Company). As a prerequisite for regular
the individual Naguiats were not impleaded as parties to the employment, she underwent a medical examination at the
complaint. Community Diagnostic Center (CDC). Garcia who is a medical
technologist, conducted the HBs Ag (Hepatitis B Surface Antigen)
We advert to the case of A.C. Ransom once more. The officers of the test and on October 22, 1993, CDC issued the test result5 indicating
corporation were not parties to the case when the judgment in favor that Ranida was "HBs Ag: Reactive." The result bore the name and
of the employees was rendered. The corporate officers raised this signature of Garcia as examiner and the rubber stamp signature of
issue when the labor arbiter granted the motion of the employees to Castro as pathologist.
enforce the judgment against them. In spite of this, the Court held
the corporation president solidarily liable with the corporation. When Ranida submitted the test result to Dr. Sto. Domingo, the
Company physician, the latter apprised her that the findings
Furthermore, Sergio and Antolin Naguiat voluntarily submitted indicated that she is suffering from Hepatitis B, a liver disease. Thus,
themselves to the jurisdiction of the labor arbiter when they, in their based on the medical report6 submitted by Sto. Domingo, the
individual capacities, filed a position paper 40 together with CFTI, Company terminated Ranida’s employment for failing the physical
before the arbiter. They cannot now claim to have been denied due examination.7
process since they availed of the opportunity to present their
positions. When Ranida informed her father, Ramon, about her ailment, the
latter suffered a heart attack and was confined at the Bataan
WHEREFORE, the foregoing premises considered, the petition is Doctors Hospital. During Ramon’s confinement, Ranida underwent
PARTLY GRANTED. The assailed February 28, 1994 Resolution of the another HBs Ag test at the said hospital and the result8 indicated
NLRC is hereby MODIFIED as follows: that she is non-reactive. She informed Sto. Domingo of this
development but was told that the test conducted by CDC was more
(1) Petitioner Clark Field Taxi, Incorporated, and Sergio F. Naguiat, reliable because it used the Micro-Elisa Method.
president and co-owner thereof, are ORDERED to pay, jointly and
severally, the individual respondents their separation pay computed Thus, Ranida went back to CDC for confirmatory testing, and this
at US$120.00 for every year of service, or its peso equivalent at the time, the Anti-HBs test conducted on her indicated a "Negative"
time of payment or satisfaction of the judgment; result.9

(2) Petitioner Sergio F. Naguiat Enterprises, Incorporated, and Ranida also underwent another HBs Ag test at the Bataan Doctors
Antolin T. Naguiat are ABSOLVED from liability in the payment of Hospital using the Micro-Elisa Method. The result indicated that she
separation pay to individual respondents. was non-reactive.10

SO ORDERED. Ranida submitted the test results from Bataan Doctors Hospital and
CDC to the Executive Officer of the Company who requested her to
undergo another similar test before her re-employment would be
considered. Thus, CDC conducted another HBs Ag test on Ranida
which indicated a "Negative" result.11 Ma. Ruby G. Calderon, Med-
Tech Officer-in-Charge of CDC, issued a Certification correcting the
initial result and explaining that the examining medical technologist
(Garcia) interpreted the delayed reaction as positive or reactive.12

Thereafter, the Company rehired Ranida.

On July 25, 1994, Ranida and Ramon filed a complaint13 for damages
against petitioner Garcia and a purportedly unknown pathologist of
CDC, claiming that, by reason of the erroneous interpretation of the
results of Ranida’s examination, she lost her job and suffered serious
mental anxiety, trauma and sleepless nights, while Ramon was
hospitalized and lost business opportunities.

On September 26, 1994, respondents amended their complaint 14 by

naming Castro as the "unknown pathologist."

Garcia denied the allegations of gross negligence and incompetence

and reiterated the scientific explanation for the "false positive"

5
result of the first HBs Ag test in his December 7, 1993 letter to the business is impressed with public interest, as such, high standards of
respondents.15 performance are expected from them.

For his part, Castro claimed that as pathologist, he rarely went to In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner of a
CDC and only when a case was referred to him; that he did not furniture shop liable for the destruction of the plaintiff’s house in a
examine Ranida; and that the test results bore only his rubber-stamp fire which started in his establishment in view of his failure to
signature. comply with an ordinance which required the construction of a
firewall. In Teague v. Fernandez, we stated that where the very
On September 1, 1997,16 the trial court dismissed the complaint for injury which was intended to be prevented by the ordinance has
failure of the respondents to present sufficient evidence to prove happened, non-compliance with the ordinance was not only an act
the liability of Garcia and Castro. It held that respondents should of negligence, but also the proximate cause of the death.23
have presented Sto. Domingo because he was the one who
interpreted the test result issued by CDC. Likewise, respondents In fine, violation of a statutory duty is negligence. Where the law
should have presented a medical expert to refute the testimonies of imposes upon a person the duty to do something, his omission or
Garcia and Castro regarding the medical explanation behind the non-performance will render him liable to whoever may be injured
conflicting test results on Ranida.17 thereby.

Respondents appealed to the Court of Appeals which reversed the Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The
trial court’s findings, the dispositive portion of which states: Clinical Laboratory Law, provides:

WHEREFORE, the decision appealed from is REVERSED and SET Sec. 2. It shall be unlawful for any person to be professionally in-
ASIDE and another one entered ORDERING defendant-appellee charge of a registered clinical laboratory unless he is a licensed
Orlando D. Garcia, Jr. to pay plaintiff-appellant Ranida D. Salvador physician duly qualified in laboratory medicine and authorized by
moral damages in the amount of P50,000.00, exemplary damages in the Secretary of Health, such authorization to be renewed annually.
the amount of P50,000.00 and attorney’s fees in the amount of
P25,000.00. No license shall be granted or renewed by the Secretary of Health
for the operation and maintenance of a clinical laboratory unless
SO ORDERED.18 such laboratory is under the administration, direction and
supervision of an authorized physician, as provided for in the
The appellate court found Garcia liable for damages for negligently preceding paragraph.
issuing an erroneous HBs Ag result. On the other hand, it exonerated
Castro for lack of participation in the issuance of the results. Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH
Administrative Order No. 49-B Series of 1988, otherwise known as
After the denial of his motion for reconsideration, Garcia filed the the Revised Rules and Regulations Governing the Registration,
instant petition. Operation and Maintenance of Clinical Laboratories in the
Philippines, read:
The main issue for resolution is whether the Court of Appeals, in
reversing the decision of the trial court, correctly found petitioner Sec. 9. Management of the Clinical Laboratory:
liable for damages to the respondents for issuing an incorrect HBsAG
test result. 9.1 Head of the Clinical Laboratory: The head is that person who
assumes technical and administrative supervision and control of the
Garcia maintains he is not negligent, thus not liable for damages, activities in the laboratory.
because he followed the appropriate laboratory measures and
procedures as dictated by his training and experience; and that he For all categories of clinical laboratories, the head shall be a licensed
did everything within his professional competence to arrive at an physician certified by the Philippine Board of Pathology in either
objective, impartial and impersonal result. Anatomic or Clinical Pathology or both provided that:

At the outset, we note that the issues raised are factual in nature. (1) This shall be mandatory for all categories of free-standing clinical
Whether a person is negligent or not is a question of fact which we laboratories; all tertiary category hospital laboratories and for all
cannot pass upon in a petition for review on certiorari which is secondary category hospital laboratories located in areas with
limited to reviewing errors of law.19 sufficient available pathologist.

Negligence is the failure to observe for the protection of the interest xxxx
of another person that degree of care, precaution and vigilance
which the circumstances justly demand,20 whereby such other Sec. 11. Reporting: All laboratory requests shall be considered as
person suffers injury. For health care providers, the test of the consultations between the requesting physician and pathologist of
existence of negligence is: did the health care provider either fail to the laboratory. As such all laboratory reports on various
do something which a reasonably prudent health care provider examinations of human specimens shall be construed as
would have done, or that he or she did something that a reasonably consultation report and shall bear the name of the pathologist or his
prudent health care provider would not have done; and that failure associate. No person in clinical laboratory shall issue a report, orally
or action caused injury to the patient;21 if yes, then he is guilty of or in writing, whole portions thereof without a directive from the
negligence. pathologist or his authorized associate and only to the requesting
physician or his authorized representative except in emergencies
Thus, the elements of an actionable conduct are: 1) duty, 2) breach, when the results may be released as authorized by the pathologist.
3) injury, and 4) proximate causation.
xxxx
All the elements are present in the case at bar.
Sec. 25. Violations:
Owners and operators of clinical laboratories have the duty to
comply with statutes, as well as rules and regulations, purposely 25.1 The license to operate a clinical laboratory may be suspended
promulgated to protect and promote the health of the people by or revoked by the Undersecretary of Health for Standards and
preventing the operation of substandard, improperly managed and Regulation upon violation of R.A. 4688 or the rules and regulations
inadequately supported clinical laboratories and by improving the issued in pursuance thereto or the commission of the following acts
quality of performance of clinical laboratory examinations. 22 Their
6
by the persons owning or operating a clinical laboratory and the Castro’s infrequent visit to the clinical laboratory barely qualifies as
persons under their authority. an effective administrative supervision and control over the
activities in the laboratory. "Supervision and control" means the
(1) Operation of a Clinical Laboratory without a certified pathologist authority to act directly whenever a specific function is entrusted by
or qualified licensed physician authorized by the Undersecretary of law or regulation to a subordinate; direct the performance of duty;
Health or without employing a registered medical technologist or a restrain the commission of acts; review, approve, revise or modify
person not registered as a medical technologist in such a position. acts and decisions of subordinate officials or units.27

And Section 29(b) of R.A. No. 5527, otherwise known as The Second, Garcia conducted the HBsAG test of respondent Ranida
Philippine Medical Technology Act of 1969, reads: without the supervision of defendant-appellee Castro, who admitted
that:
Section 29. Penal Provisions.- Without prejudice to the provision of
the Medical Act of 1959, as amended relating to illegal practice of [He] does not know, and has never known or met, the plaintiff-
Medicine, the following shall be punished by a fine of not less than patient even up to this time nor has he personally examined any
two thousand pesos nor more than five thousand pesos, or specimen, blood, urine or any other tissue, from the plaintiff-patient
imprisonment for not less than six months nor more than two years, otherwise his own handwritten signature would have appeared in
or both, in the discretion of the court: the result and not merely stamped as shown in Annex "B" of the
Amended Complaint.28
xxxx
Last, the disputed HBsAG test result was released to respondent
Ranida without the authorization of defendant-appellee Castro.29
(b) Any medical technologist, even if duly registered, who shall
practice medical technology in the Philippines without the necessary
supervision of a qualified pathologist or physician authorized by the Garcia may not have intended to cause the consequences which
Department of Health; followed after the release of the HBsAG test result. However, his
failure to comply with the laws and rules promulgated and issued for
the protection of public safety and interest is failure to observe that
From the foregoing laws and rules, it is clear that a clinical
care which a reasonably prudent health care provider would
laboratory must be administered, directed and supervised by a
observe. Thus, his act or omission constitutes a breach of duty.
licensed physician authorized by the Secretary of Health, like a
pathologist who is specially trained in methods of laboratory
medicine; that the medical technologist must be under the Indubitably, Ranida suffered injury as a direct consequence of
supervision of the pathologist or a licensed physician; and that the Garcia’s failure to comply with the mandate of the laws and rules
results of any examination may be released only to the requesting aforequoted. She was terminated from the service for failing the
physician or his authorized representative upon the direction of the physical examination; suffered anxiety because of the diagnosis; and
laboratory pathologist. was compelled to undergo several more tests. All these could have
been avoided had the proper safeguards been scrupulously followed
in conducting the clinical examination and releasing the clinical
These rules are intended for the protection of the public by
report.
preventing performance of substandard clinical examinations by
laboratories whose personnel are not properly supervised. The
public demands no less than an effective and efficient performance Article 20 of the New Civil Code provides:
of clinical laboratory examinations through compliance with the
quality standards set by laws and regulations. Art. 20. Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.
We find that petitioner Garcia failed to comply with these standards.
The foregoing provision provides the legal basis for the award of
First, CDC is not administered, directed and supervised by a licensed damages to a party who suffers damage whenever one commits an
physician as required by law, but by Ma. Ruby C. Calderon, a act in violation of some legal provision.30 This was incorporated by
licensed Medical Technologist.24 In the License to Open and Operate the Code Commission to provide relief to a person who suffers
a Clinical Laboratory for the years 1993 and 1996 issued by Dr. Juan damage because another has violated some legal provision.31
R. Nañagas, M.D., Undersecretary for Health Facilities, Standards
and Regulation, defendant-appellee Castro was named as the head We find the Court of Appeals’ award of moral damages reasonable
of CDC.25 However, in his Answer with Counterclaim, he stated: under the circumstances bearing in mind the mental trauma
suffered by respondent Ranida who thought she was afflicted by
3. By way of affirmative and special defenses, defendant pathologist Hepatitis B, making her "unfit or unsafe for any type of
further avers and plead as follows: employment."32 Having established her right to moral damages, we
see no reason to disturb the award of exemplary damages and
attorney’s fees. Exemplary damages are imposed, by way of example
Defendant pathologist is not the owner of the Community
or correction for the public good, in addition to moral, temperate,
Diagnostic Center nor an employee of the same nor the employer of
liquidated or compensatory damages,33 and attorney’s fees may be
its employees. Defendant pathologist comes to the Community
recovered when, as in the instant case, exemplary damages are
Diagnostic Center when and where a problem is referred to him. Its
awarded.34
employees are licensed under the Medical Technology Law (Republic
Act No. 5527) and are certified by, and registered with, the
Professional Regulation Commission after having passed their Board WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No.
Examinations. They are competent within the sphere of their own 58668 dated February 27, 2004 finding petitioner Orlando D. Garcia,
profession in so far as conducting laboratory examinations and are Jr. guilty of gross negligence and liable to pay to respondents
allowed to sign for and in behalf of the clinical laboratory. The ₱50,000.00 as moral damages, ₱50,000.00 as exemplary damages,
defendant pathologist, and all pathologists in general, are hired by and ₱25,000.00 as attorney’s fees, is AFFIRMED.
laboratories for purposes of complying with the rules and
regulations and orders issued by the Department of Health through SO ORDERED.
the Bureau of Research and Laboratories. Defendant pathologist
does not stay that long period of time at the Community Diagnostic
Center but only periodically or whenever a case is referred to him by
the laboratory. Defendant pathologist does not appoint or select the
employees of the laboratory nor does he arrange or approve their
schedules of duty.26

7
G.R. No. L-48006 July 8, 1942 ... We cannot agree to the defendant's contention. The
liability sought to be imposed upon him in this action is not
FAUSTO BARREDO, petitioner, a civil obligation arising from a felony or a misdemeanor
vs.SEVERINO GARCIA and TIMOTEA ALMARIO, respondents. (the crime of Pedro Fontanilla,), but an obligation imposed
in article 1903 of the Civil Code by reason of his negligence
in the selection or supervision of his servant or employee.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
The pivotal question in this case is whether the plaintiffs may bring
this separate civil action against Fausto Barredo, thus making him
BOCOBO, J.:
primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains
This case comes up from the Court of Appeals which held the that Fontanilla's negligence being punishable by the Penal Code, his
petitioner herein, Fausto Barredo, liable in damages for the death of (defendant's) liability as an employer is only subsidiary, according to
Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi said Penal code, but Fontanilla has not been sued in a civil action
driver employed by said Fausto Barredo. and his property has not been exhausted. To decide the main issue,
we must cut through the tangle that has, in the minds of many
At about half past one in the morning of May 3, 1936, on the road confused and jumbled together delitos and cuasi delitos, or crimes
between Malabon and Navotas, Province of Rizal, there was a head- under the Penal Code and fault or negligence under articles 1902-
on collision between a taxi of the Malate Taxicab driven by Pedro 1910 of the Civil Code. This should be done, because justice may be
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela lost in a labyrinth, unless principles and remedies are distinctly
was overturned, and one of its passengers, 16-year-old boy Faustino envisaged. Fortunately, we are aided in our inquiry by the luminous
Garcia, suffered injuries from which he died two days later. A presentation of the perplexing subject by renown jurists and we are
criminal action was filed against Fontanilla in the Court of First likewise guided by the decisions of this Court in previous cases as
Instance of Rizal, and he was convicted and sentenced to an well as by the solemn clarity of the consideration in several
indeterminate sentence of one year and one day to two years sentences of the Supreme Tribunal of Spain.
of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved. Authorities support the proposition that a quasi-delict or "culpa
The Court of Appeals affirmed the sentence of the lower court in the aquiliana " is a separate legal institution under the Civil Code with a
criminal case. Severino Garcia and Timotea Almario, parents of the substantivity all its own, and individuality that is entirely apart and
deceased on March 7, 1939, brought an action in the Court of First independent from delict or crime. Upon this principle and on the
Instance of Manila against Fausto Barredo as the sole proprietor of wording and spirit article 1903 of the Civil Code, the primary and
the Malate Taxicab and employer of Pedro Fontanilla. On July 8, direct responsibility of employers may be safely anchored.
1939, the Court of First Instance of Manila awarded damages in
favor of the plaintiffs for P2,000 plus legal interest from the date of
The pertinent provisions of the Civil Code and Revised Penal Code
the complaint. This decision was modified by the Court of Appeals
are as follows:
by reducing the damages to P1,000 with legal interest from the time
the action was instituted. It is undisputed that Fontanilla 's
negligence was the cause of the mishap, as he was driving on the CIVIL CODE
wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found: ART. 1089 Obligations arise from law, from contracts and
quasi-contracts, and from acts and omissions which are
... It is admitted that defendant is Fontanilla's employer. unlawful or in which any kind of fault or negligence
There is proof that he exercised the diligence of a good intervenes.
father of a family to prevent damage. (See p. 22,
appellant's brief.) In fact it is shown he was careless in xxx xxx xxx
employing Fontanilla who had been caught several times
for violation of the Automobile Law and speeding (Exhibit ART. 1092. Civil obligations arising from felonies or
A) — violation which appeared in the records of the misdemeanors shall be governed by the provisions of the
Bureau of Public Works available to be public and to Penal Code.
himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.
ART. 1093. Those which are derived from acts or omissions
in which fault or negligence, not punishable by law,
The main theory of the defense is that the liability of Fausto Barredo intervenes shall be subject to the provisions of Chapter II,
is governed by the Revised Penal Code; hence, his liability is only Title XVI of this book.
subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held
xxx xxx xxx
responsible in the case. The petitioner's brief states on page 10:

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

... The Court of Appeals holds that the petitioner is being
damage to another by his fault or negligence shall be liable
sued for his failure to exercise all the diligence of a good
for the damage so done.
father of a family in the selection and supervision of Pedro
Fontanilla to prevent damages suffered by the
respondents. In other words, The Court of Appeals insists ART. 1903. The obligation imposed by the next preceding
on applying in the case article 1903 of the Civil Code. article is enforcible, not only for personal acts and
Article 1903 of the Civil Code is found in Chapter II, Title omissions, but also for those of persons for whom another
16, Book IV of the Civil Code. This fact makes said article to is responsible.
a civil liability arising from a crime as in the case at bar
simply because Chapter II of Title 16 of Book IV of the Civil The father and in, case of his death or incapacity, the
Code, in the precise words of article 1903 of the Civil Code mother, are liable for any damages caused by the minor
itself, is applicable only to "those (obligations) arising from children who live with them.
wrongful or negligent acts or commission not punishable
by law. Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and living
The gist of the decision of the Court of Appeals is expressed thus: with them.

8
 Owners or directors of an establishment or business are ART. 102. Subsidiary civil liability of innkeepers, tavern
equally liable for any damages caused by their employees keepers and proprietors of establishment. — In default of
while engaged in the branch of the service in which persons criminally liable, innkeepers, tavern keepers, and
employed, or on occasion of the performance of their any other persons or corporation shall be civilly liable for
duties. crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some general
The State is subject to the same liability when it acts or special police regulation shall have been committed by
through a special agent, but not if the damage shall have them or their employees.
been caused by the official upon whom properly devolved
the duty of doing the act performed, in which case the Innkeepers are also subsidiarily liable for the restitution of
provisions of the next preceding article shall be applicable. goods taken by robbery or theft within their houses
lodging therein, or the person, or for the payment of the
Finally, teachers or directors of arts trades are liable for value thereof, provided that such guests shall have
any damages caused by their pupils or apprentices while notified in advance the innkeeper himself, or the person
they are under their custody. representing him, of the deposit of such goods within the
inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have
The liability imposed by this article shall cease in case the
given them with respect to the care of and vigilance over
persons mentioned therein prove that they are exercised
such goods. No liability shall attach in case of robbery with
all the diligence of a good father of a family to prevent the
violence against or intimidation against or intimidation of
damage.
persons unless committed by the innkeeper's employees.

ART. 1904. Any person who pays for damage caused by his
ART. 103. Subsidiary civil liability of other persons. — The
employees may recover from the latter what he may have
subsidiary liability established in the next preceding article
paid.
shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies
REVISED PENAL CODE committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
ART. 100. Civil liability of a person guilty of felony. — Every
person criminally liable for a felony is also civilly liable. xxx xxx xxx

ART. 101. Rules regarding civil liability in certain cases. — ART. 365. Imprudence and negligence. — Any person who,
The exemption from criminal liability established in by reckless imprudence, shall commit any act which, had it
subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision been intentional, would constitute a grave felony, shall
4 of article 11 of this Code does not include exemption suffer the penalty of arresto mayor in its maximum period
from civil liability, which shall be enforced to the following to prision correccional in its minimum period; if it would
rules: have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be
First. In cases of subdivision, 1, 2 and 3 of article 12 the imposed.
civil liability for acts committed by any imbecile or insane
person, and by a person under nine years of age, or by one Any person who, by simple imprudence or negligence,
over nine but under fifteen years of age, who has acted shall commit an act which would otherwise constitute a
without discernment shall devolve upon those having such grave felony, shall suffer the penalty of arresto mayor in its
person under their legal authority or control, unless it medium and maximum periods; if it would have
appears that there was no fault or negligence on their constituted a less serious felony, the penalty of arresto
part. mayor in its minimum period shall be imposed."

Should there be no person having such insane, imbecile or It will thus be seen that while the terms of articles 1902 of the Civil
minor under his authority, legal guardianship, or control, Code seem to be broad enough to cover the driver's negligence in
or if such person be insolvent, said insane, imbecile, or the instant case, nevertheless article 1093 limits cuasi-delitos to acts
minor shall respond with their own property, excepting or omissions "not punishable by law." But inasmuch as article 365 of
property exempt from execution, in accordance with the the Revised Penal Code punishes not only reckless but even simple
civil law. imprudence or negligence, the fault or negligence under article 1902
of the Civil Code has apparently been crowded out. It is this
Second. In cases falling within subdivision 4 of article 11, overlapping that makes the "confusion worse confounded."
the person for whose benefit the harm has been However, a closer study shows that such a concurrence of scope in
prevented shall be civilly liable in proportion to the benefit regard to negligent acts does not destroy the distinction between
which they may have received. the civil liability arising from a crime and the responsibility for cuasi-
delitos or culpa extra-contractual. The same negligent act causing
The courts shall determine, in their sound discretion, the damages may produce civil liability arising from a crime under article
proportionate amount for which each one shall be liable. 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code.
When the respective shares can not be equitably determined, even
approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and, The individuality of cuasi-delito or culpa extra-contractual looms
in all events, whenever the damage has been caused with the clear and unmistakable. This legal institution is of ancient lineage,
consent of the authorities or their agents, indemnification shall be one of its early ancestors being the Lex Aquilia in the Roman Law. In
made in the manner prescribed by special laws or regulations. fact, in Spanish legal terminology, this responsibility is often referred
to as culpa aquiliana. The Partidas also contributed to the genealogy
of the present fault or negligence under the Civil Code; for instance,
Third. In cases falling within subdivisions 5 and 6 of article 12, the Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda,
persons using violence or causing the fear shall be primarily liable porque, como quier que el non fizo a sabiendas en daño al otro,
and secondarily, or, if there be no such persons, those doing the act pero acaescio por su culpa."
shall be liable, saving always to the latter that part of their property
exempt from execution.

9
The distinctive nature of cuasi-delitos survives in the Civil Code. se enmiendan los quebrantos y menoscabos, el agraviado
According to article 1089, one of the five sources of obligations is excusa procurar el ya conseguido desagravio; pero esta
this legal institution of cuasi-delito or culpa extra-contractual: "los eventual coincidencia de los efectos, no borra la diversidad
actos . . . en que intervenga cualquier genero de culpa o originaria de las acciones civiles para pedir indemnizacion.
negligencia." Then article 1093 provides that this kind of obligation
shall be governed by Chapter II of Title XVI of Book IV, meaning Estas, para el caso actual (prescindiendo de
articles 1902-0910. This portion of the Civil Code is exclusively culpas contractuales, que no vendrian a cuento y que tiene
devoted to the legal institution of culpa aquiliana. otro regimen), dimanan, segun el articulo 1902 del Codigo
Civil, de toda accion u omision, causante de daños o
Some of the differences between crimes under the Penal Code and perjuicios, en que intervenga culpa o negligencia. Es trivial
the culpa aquiliana or cuasi-delito under the Civil Code are: que acciones semejantes son ejercitadas ante los
Tribunales de lo civil cotidianamente, sin que la Justicia
1. That crimes affect the public interest, while cuasi-delitos are only punitiva tenga que mezclarse en los asuntos. Los articulos
of private concern. 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y
a los fines sociales y politicos del mismo, desenvuelven y
ordenan la materia de responsabilidades civiles nacidas de
2. That, consequently, the Penal Code punishes or corrects the
delito, en terminos separados del regimen por ley comun
criminal act, while the Civil Code, by means of indemnification,
de la culpa que se denomina aquiliana, por alusion a
merely repairs the damage.
precedentes legislativos del Corpus Juris. Seria
intempestivo un paralelo entre aquellas ordenaciones, y la
3. That delicts are not as broad as quasi-delicts, because the former de la obligacion de indemnizar a titulo de culpa civil; pero
are punished only if there is a penal law clearly covering them, while viene al caso y es necesaria una de las diferenciaciones
the latter, cuasi-delitos, include all acts in which "any king of fault or que en el tal paralelo se notarian.
negligence intervenes." However, it should be noted that not all
violations of the penal law produce civil responsibility, such as
Los articulos 20 y 21 del Codigo Penal, despues de
begging in contravention of ordinances, violation of the game laws,
distribuir a su modo las responsabilidades civiles, entre los
infraction of the rules of traffic when nobody is hurt. (See Colin and
que sean por diversos conceptos culpables del delito o
Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los
Let us now ascertain what some jurists say on the separate existence delincuentes; pero con caracter subsidiario, o sea, segun el
of quasi-delicts and the employer's primary and direct liability under texto literal, en defecto de los que sean responsables
article 1903 of the Civil Code. criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo
Dorado Montero in his essay on "Responsibilidad" in the anterior es exigible, no solo por los actos y omisiones
"Enciclopedia Juridica Española" (Vol. XXVII, p. 414) says: propios, sino por los de aquellas personas de quienes se
debe responder; personas en la enumeracion de las cuales
El concepto juridico de la responsabilidad civil abarca figuran los dependientes y empleados de los
diversos aspectos y comprende a diferentes personas. Asi, establecimientos o empresas, sea por actos del servicio,
existe una responsabilidad civil propiamente dicha, que en sea con ocasion de sus funciones. Por esto acontece, y se
ningun casl lleva aparejada responsabilidad criminal observa en la jurisprudencia, que las empresas, despues
alguna, y otra que es consecuencia indeclinable de la penal de intervenir en las causas criminales con el caracter
que nace de todo delito o falta." subsidiario de su responsabilidad civil por razon del delito,
son demandadas y condenadas directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales civiles.
The juridical concept of civil responsibility has various
aspects and comprises different persons. Thus, there is a
civil responsibility, properly speaking, which in no case Siendo como se ve, diverso el titulo de esta obligacion, y
carries with it any criminal responsibility, and another formando verdadero postulado de nuestro regimen
which is a necessary consequence of the penal liability as a judicial la separacion entre justicia punitiva y tribunales de
result of every felony or misdemeanor." lo civil, de suerte que tienen unos y otros normas de fondo
en distintos cuerpos legales, y diferentes modos de
proceder, habiendose, por añadidura, abstenido de asistir
Maura, an outstanding authority, was consulted on the following al juicio criminal la Compañia del Ferrocarril Cantabrico,
case: There had been a collision between two trains belonging que se reservo ejercitar sus acciones, parece innegable
respectively to the Ferrocarril Cantabrico and the Ferrocarril del que la de indemnizacion por los daños y perjuicios que le
Norte. An employee of the latter had been prosecuted in a criminal irrogo el choque, no estuvo sub judice ante el Tribunal del
case, in which the company had been made a party as subsidiarily Jurado, ni fue sentenciada, sino que permanecio intacta, al
responsible in civil damages. The employee had been acquitted in pronunciarse el fallo de 21 de marzo. Aun cuando el
the criminal case, and the employer, the Ferrocarril del Norte, had veredicto no hubiese sido de inculpabilidad, mostrose mas
also been exonerated. The question asked was whether the arriba, que tal accion quedaba legitimamente reservada
Ferrocarril Cantabrico could still bring a civil action for damages para despues del proceso; pero al declararse que no
against the Ferrocarril del Norte. Maura's opinion was in the existio delito, ni responsabilidad dimanada de delito,
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513): materia unica sobre que tenian jurisdiccion aquellos
juzgadores, se redobla el motivo para la obligacion civil ex
Quedando las cosas asi, a proposito de la realidad pura y lege, y se patentiza mas y mas que la accion para pedir su
neta de los hechos, todavia menos parece sostenible que cumplimiento permanece incolume, extraña a la cosa
exista cosa juzgada acerca de la obligacion civil de juzgada.
indemnizar los quebrantos y menoscabos inferidos por el
choque de los trenes. El titulo en que se funda la accion As things are, apropos of the reality pure and simple of the
para demandar el resarcimiento, no puede confundirse facts, it seems less tenable that there should be res
con las responsabilidades civiles nacidas de delito, siquiera judicata with regard to the civil obligation for damages on
exista en este, sea el cual sea, una culpa rodeada de notas account of the losses caused by the collision of the trains.
agravatorias que motivan sanciones penales, mas o menos The title upon which the action for reparation is based
severas. La lesion causada por delito o falta en los cannot be confused with the civil responsibilities born of a
derechos civiles, requiere restituciones, reparaciones o crime, because there exists in the latter, whatever each
indemnizaciones, que cual la pena misma atañen al orden nature, a culpa surrounded with aggravating aspects which
publico; por tal motivo vienen encomendadas, de give rise to penal measures that are more or less severe.
ordinario, al Ministerio Fiscal; y claro es que si por esta via The injury caused by a felony or misdemeanor upon civil
10
 rights requires restitutions, reparations, or similar to those of the Spanish Civil Code, says, referring to article
indemnifications which, like the penalty itself, affect public 1384 of the French Civil Code which corresponds to article 1903,
order; for this reason, they are ordinarily entrusted to the Spanish Civil Code:
office of the prosecuting attorney; and it is clear that if by
this means the losses and damages are repaired, the The action can be brought directly against the person
injured party no longer desires to seek another relief; but responsible (for another), without including the author of
this coincidence of effects does not eliminate the peculiar the act. The action against the principal is accessory in the
nature of civil actions to ask for indemnity. sense that it implies the existence of a prejudicial act
committed by the employee, but it is not subsidiary in the
Such civil actions in the present case (without referring to sense that it can not be instituted till after the judgment
contractual faults which are not pertinent and belong to against the author of the act or at least, that it is subsidiary
another scope) are derived, according to article 1902 of to the principal action; the action for responsibility (of the
the Civil Code, from every act or omission causing losses employer) is in itself a principal action. (Laurent, Principles
and damages in which culpa or negligence intervenes. It is of French Civil Law, Spanish translation, Vol. 20, pp. 734-
unimportant that such actions are every day filed before 735.)
the civil courts without the criminal courts interfering
therewith. Articles 18 to 21 and 121 to 128 of the Penal Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp.
Code, bearing in mind the spirit and the social and political 429, 430), declares that the responsibility of the employer is
purposes of that Code, develop and regulate the matter of principal and not subsidiary. He writes:
civil responsibilities arising from a crime, separately from
the regime under common law, of culpa which is known
Cuestion 1. La responsabilidad declarada en el articulo
as aquiliana, in accordance with legislative precedent of
1903 por las acciones u omisiones de aquellas personas
the Corpus Juris. It would be unwarranted to make a
por las que se debe responder, es subsidiaria? es
detailed comparison between the former provisions and
principal? Para contestar a esta pregunta es necesario
that regarding the obligation to indemnify on account of
saber, en primer lugar, en que se funda el precepto legal.
civil culpa; but it is pertinent and necessary to point out to
Es que realmente se impone una responsabilidad por una
one of such differences.
falta ajena? Asi parece a primera vista; pero semejante
afirmacion seria contraria a la justicia y a la maxima
Articles 20 and 21 of the Penal Code, after distriburing in universal, segun la que las faltas son personales, y cada
their own way the civil responsibilities among those who, uno responde de aquellas que le son imputables. La
for different reasons, are guilty of felony or misdemeanor, responsabilidad de que tratamos se impone con ocasion
make such civil responsibilities applicable to enterprises de un delito o culpa, pero no por causa de ellos, sino por
and establishments for which the guilty parties render causa del causi delito, esto es, de la imprudencia o de la
service, but with subsidiary character, that is to say, negligencia del padre, del tutor, del dueño o director del
according to the wording of the Penal Code, in default of establecimiento, del maestro, etc. Cuando cualquiera de
those who are criminally responsible. In this regard, the las personas que enumera el articulo citado (menores de
Civil Code does not coincide because article 1903 says: edad, incapacitados, dependientes, aprendices) causan un
"The obligation imposed by the next preceding article is daño, la ley presume que el padre, el tutor, el maestro,
demandable, not only for personal acts and omissions, but etc., han cometido una falta de negligencia para prevenir o
also for those of persons for whom another is evitar el daño. Esta falta es la que la ley castiga. No hay,
responsible." Among the persons enumerated are the pues, responsabilidad por un hecho ajeno, sino en la
subordinates and employees of establishments or apariencia; en realidad la responsabilidad se exige por un
enterprises, either for acts during their service or on the hecho propio. La idea de que esa responsabilidad sea
occasion of their functions. It is for this reason that it subsidiaria es, por lo tanto, completamente inadmisible.
happens, and it is so observed in judicial decisions, that
the companies or enterprises, after taking part in the
Question No. 1. Is the responsibility declared in article
criminal cases because of their subsidiary civil
1903 for the acts or omissions of those persons for who
responsibility by reason of the crime, are sued and
one is responsible, subsidiary or principal? In order to
sentenced directly and separately with regard to
answer this question it is necessary to know, in the first
the obligation, before the civil courts.
place, on what the legal provision is based. Is it true that
there is a responsibility for the fault of another person? It
Seeing that the title of this obligation is different, and the seems so at first sight; but such assertion would be
separation between punitive justice and the civil courts contrary to justice and to the universal maxim that all
being a true postulate of our judicial system, so that they faults are personal, and that everyone is liable for those
have different fundamental norms in different codes, as faults that can be imputed to him. The responsibility in
well as different modes of procedure, and inasmuch as the question is imposed on the occasion of a crime or fault,
Compaña del Ferrocarril Cantabrico has abstained from but not because of the same, but because of the cuasi-
taking part in the criminal case and has reserved the right delito, that is to say, the imprudence or negligence of the
to exercise its actions, it seems undeniable that the action father, guardian, proprietor or manager of the
for indemnification for the losses and damages caused to establishment, of the teacher, etc. Whenever anyone of
it by the collision was not sub judice before the Tribunal the persons enumerated in the article referred to (minors,
del Jurado, nor was it the subject of a sentence, but it incapacitated persons, employees, apprentices) causes any
remained intact when the decision of March 21 was damage, the law presumes that the father, guardian,
rendered. Even if the verdict had not been that of teacher, etc. have committed an act of negligence in not
acquittal, it has already been shown that such action had preventing or avoiding the damage. It is this fault that is
been legitimately reserved till after the criminal condemned by the law. It is, therefore, only apparent that
prosecution; but because of the declaration of the non- there is a responsibility for the act of another; in reality
existence of the felony and the non-existence of the the responsibility exacted is for one's own act. The idea
responsibility arising from the crime, which was that such responsibility is subsidiary is, therefore,
the sole subject matter upon which the Tribunal del completely inadmissible.
Jurado had jurisdiction, there is greater reason for the civil
obligation ex lege, and it becomes clearer that the action
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia,
for its enforcement remain intact and is not res judicata.
Referentes al Codigo Civil Español," says in Vol. VII, p. 743:

Laurent, a jurist who has written a monumental work on the French

Es decir, no responde de hechos ajenos, porque se
Civil Code, on which the Spanish Civil Code is largely based and
responde solo de su propia culpa, doctrina del articulo
whose provisions on cuasi-delito or culpa extra-contractual are
11
 1902; mas por excepcion, se responde de la ajena respecto Considering that the first ground of the appeal is based on
de aquellas personas con las que media algun nexo o the mistaken supposition that the trial court, in sentencing
vinculo, que motiva o razona la responsabilidad. Esta the Compañia Madrileña to the payment of the damage
responsabilidad, es directa o es subsidiaria? En el orden caused by the death of Ramon Lafuente Izquierdo,
penal, el Codigo de esta clase distingue entre menores e disregards the value and juridical effects of the sentence
incapacitados y los demas, declarando directa la primera of acquittal rendered in the criminal case instituted on
(articulo 19) y subsidiaria la segunda (articulos 20 y 21); account of the same act, when it is a fact that the two
pero en el orden civil, en el caso del articulo 1903, ha de jurisdictions had taken cognizance of the same act in its
entenderse directa, por el tenor del articulo que impone la different aspects, and as the criminal jurisdiction declared
responsabilidad precisamente "por los actos de aquellas within the limits of its authority that the act in question
personas de quienes se deba responder." did not constitute a felony because there was no grave
carelessness or negligence, and this being the only basis of
That is to say, one is not responsible for the acts of others, acquittal, it does no exclude the co-existence of fault or
because one is liable only for his own faults, this being the negligence which is not qualified, and is a source of civil
doctrine of article 1902; but, by exception, one is liable for obligations according to article 1902 of the Civil Code,
the acts of those persons with whom there is a bond or tie affecting, in accordance with article 1903, among other
which gives rise to the responsibility. Is this responsibility persons, the managers of establishments or enterprises by
direct or subsidiary? In the order of the penal law, the reason of the damages caused by employees under certain
Penal Code distinguishes between minors and conditions, it is manifest that the civil jurisdiccion in taking
incapacitated persons on the one hand, and other persons cognizance of the same act in this latter aspect and in
on the other, declaring that the responsibility for the ordering the company, appellant herein, to pay an
former is direct (article 19), and for the latter, subsidiary indemnity for the damage caused by one of its employees,
(articles 20 and 21); but in the scheme of the civil law, in far from violating said legal provisions, in relation with
the case of article 1903, the responsibility should be article 116 of the Law of Criminal Procedure, strictly
understood as direct, according to the tenor of that followed the same, without invading attributes which are
articles, for precisely it imposes responsibility "for the acts beyond its own jurisdiction, and without in any way
of those persons for whom one should be responsible." contradicting the decision in that cause. (Emphasis
supplied.)
Coming now to the sentences of the Supreme Tribunal of Spain, that
court has upheld the principles above set forth: that a quasi- It will be noted, as to the case just cited:
delict or culpa extra-contractual is a separate and distinct legal
institution, independent from the civil responsibility arising from First. That the conductor was not sued in a civil case, either
criminal liability, and that an employer is, under article 1903 of the separately or with the street car company. This is precisely what
Civil Code, primarily and directly responsible for the negligent acts of happens in the present case: the driver, Fontanilla, has not been
his employee. sued in a civil action, either alone or with his employer.

One of the most important of those Spanish decisions is that of Second. That the conductor had been acquitted of grave criminal
October 21, 1910. In that case, Ramon Lafuente died as the result of negligence, but the Supreme Tribunal of Spain said that this did not
having been run over by a street car owned by the "compañia exclude the co-existence of fault or negligence, which is not
Electric Madrileña de Traccion." The conductor was prosecuted in a qualified, on the part of the conductor, under article 1902 of the
criminal case but he was acquitted. Thereupon, the widow filed a Civil Code. In the present case, the taxi driver was found guilty of
civil action against the street car company, paying for damages in criminal negligence, so that if he had even sued for his civil
the amount of 15,000 pesetas. The lower court awarded damages; responsibility arising from the crime, he would have been held
so the company appealed to the Supreme Tribunal, alleging violation primarily liable for civil damages, and Barredo would have been held
of articles 1902 and 1903 of the Civil Code because by final subsidiarily liable for the same. But the plaintiffs are directly suing
judgment the non-existence of fault or negligence had been Barredo, on his primary responsibility because of his own presumed
declared. The Supreme Court of Spain dismissed the appeal, saying: negligence — which he did not overcome — under article 1903.
Thus, there were two liabilities of Barredo: first, the subsidiary one
Considerando que el primer motivo del recurso se funda because of the civil liability of the taxi driver arising from the latter's
en el equivocado supuesto de que el Tribunal a quo, al criminal negligence; and, second, Barredo's primary liability as an
condonar a la compañia Electrica Madrileña al pago del employer under article 1903. The plaintiffs were free to choose
daño causado con la muerte de Ramon La fuente which course to take, and they preferred the second remedy. In so
Izquierdo, desconoce el valor y efectos juridicos de la doing, they were acting within their rights. It might be observed in
sentencia absolutoria deictada en la causa criminal que se passing, that the plaintiff choose the more expeditious and effective
siguio por el mismo hecho, cuando es lo cierto que de este method of relief, because Fontanilla was either in prison, or had just
han conocido las dos jurisdicciones bajo diferentes as been released, and besides, he was probably without property
pectos, y como la de lo criminal declrao dentro de los which might be seized in enforcing any judgment against him for
limites de su competencia que el hecho de que se trata no damages.
era constitutivo de delito por no haber mediado descuido
o negligencia graves, lo que no excluye, siendo este el Third. That inasmuch as in the above sentence of October 21, 1910,
unico fundamento del fallo absolutorio, el concurso de la the employer was held liable civilly, notwithstanding the acquittal of
culpa o negligencia no califacadas, fuente de obligaciones the employee (the conductor) in a previous criminal case, with
civiles segun el articulo 1902 del Codigo, y que alcanzan, greater reason should Barredo, the employer in the case at bar, be
segun el 1903, netre otras perosnas, a los Directores de held liable for damages in a civil suit filed against him because his
establecimientos o empresas por los daños causados por taxi driver had been convicted. The degree of negligence of the
sus dependientes en determinadas condiciones, es conductor in the Spanish case cited was less than that of the taxi
manifesto que la de lo civil, al conocer del mismo hehco driver, Fontanilla, because the former was acquitted in the previous
baho este ultimo aspecto y al condenar a la compañia criminal case while the latter was found guilty of criminal negligence
recurrente a la indemnizacion del daño causado por uno and was sentenced to an indeterminate sentence of one year and
de sus empleados, lejos de infringer los mencionados one day to two years of prision correccional.
textos, en relacion con el articulo 116 de la Ley de
Enjuciamiento Criminal, se ha atenido estrictamente a (See also Sentence of February 19, 1902, which is similar to the one
ellos, sin invadir atribuciones ajenas a su jurisdiccion above quoted.)
propia, ni contrariar en lo mas minimo el fallo recaido en la
causa.
In the Sentence of the Supreme Court of Spain, dated February 14,
1919, an action was brought against a railroad company for

12
damages because the station agent, employed by the company, had The above case is pertinent because it shows that the same act may
unjustly and fraudulently, refused to deliver certain articles come under both the Penal Code and the Civil Code. In that case, the
consigned to the plaintiff. The Supreme Court of Spain held that this action of the agent was unjustified and fraudulent and therefore
action was properly under article 1902 of the Civil Code, the court could have been the subject of a criminal action. And yet, it was held
saying: to be also a proper subject of a civil action under article 1902 of the
Civil Code. It is also to be noted that it was the employer and not the
Considerando que la sentencia discutida reconoce, en employee who was being sued.
virtud de los hechos que consigna con relacion a las
pruebas del pleito: 1.º, que las expediciones facturadas Let us now examine the cases previously decided by this Court.
por la compañia ferroviaria a la consignacion del actor de
las vasijas vacias que en su demanda relacionan tenian In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil.,
como fin el que este las devolviera a sus remitentes con 359, 362-365 [year 1907]), the trial court awarded damages to the
vinos y alcoholes; 2.º, que llegadas a su destino tales plaintiff, a laborer of the defendant, because the latter had
mercanias no se quisieron entregar a dicho consignatario negligently failed to repair a tramway in consequence of which the
por el jefe de la estacion sin motivo justificado y con rails slid off while iron was being transported, and caught the
intencion dolosa, y 3.º, que la falta de entrega de estas plaintiff whose leg was broken. This Court held:
expediciones al tiempo de reclamarlas el demandante le
originaron daños y perjuicios en cantidad de bastante
It is contended by the defendant, as its first defense to the
importancia como expendedor al por mayor que era de
action that the necessary conclusion from these collated
vinos y alcoholes por las ganancias que dejo de obtener al
laws is that the remedy for injuries through negligence lies
verse privado de servir los pedidos que se le habian hecho
only in a criminal action in which the official criminally
por los remitentes en los envases:
responsible must be made primarily liable and his
employer held only subsidiarily to him. According to this
Considerando que sobre esta base hay necesidad de theory the plaintiff should have procured the arrest of the
estimar los cuatro motivos que integran este recurso, representative of the company accountable for not
porque la demanda inicial del pleito a que se contrae no repairing the track, and on his prosecution a suitable fine
contiene accion que nazca del incumplimiento del contrato should have been imposed, payable primarily by him and
de transporte, toda vez que no se funda en el retraso de la secondarily by his employer.
llegada de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes, careciendo,
This reasoning misconceived the plan of the Spanish codes
por tanto, de aplicacion el articulo 371 del Codigo de
upon this subject. Article 1093 of the Civil Code makes
Comercio, en que principalmente descansa el fallo
obligations arising from faults or negligence not punished
recurrido, sino que se limita a pedir la reparaction de los
by the law, subject to the provisions of Chapter II of Title
daños y perjuicios producidos en el patrimonio del actor
XVI. Section 1902 of that chapter reads:
por la injustificada y dolosa negativa del porteador a la
entrega de las mercancias a su nombre consignadas, segun
lo reconoce la sentencia, y cuya responsabilidad esta "A person who by an act or omission causes
claramente sancionada en el articulo 1902 del Codigo Civil, damage to another when there is fault or
que obliga por el siguiente a la Compañia demandada negligence shall be obliged to repair the damage
como ligada con el causante de aquellos por relaciones de so done.
caracter economico y de jurarquia administrativa.
"SEC. 1903. The obligation imposed by the
Considering that the sentence, in question recognizes, in preceeding article is demandable, not only for
virtue of the facts which it declares, in relation to the personal acts and omissions, but also for those
evidence in the case: (1) that the invoice issued by the of the persons for whom they should be
railroad company in favor of the plaintiff contemplated responsible.
that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and "The father, and on his death or incapacity, the
liquors; (2) that when the said merchandise reached their mother, is liable for the damages caused by the
destination, their delivery to the consignee was refused by minors who live with them.
the station agent without justification and with fraudulent
intent, and (3) that the lack of delivery of these goods xxx xxx xxx
when they were demanded by the plaintiff caused him
losses and damages of considerable importance, as he was
a wholesale vendor of wines and liquors and he failed to "Owners or directors of an establishment or
realize the profits when he was unable to fill the orders enterprise are equally liable for the damages
sent to him by the consignors of the receptacles: caused by their employees in the service of the
branches in which the latter may be employed or
in the performance of their duties.
Considering that upon this basis there is need of upholding
the four assignments of error, as the original complaint did
not contain any cause of action arising from non- xxx xxx xxx
fulfillment of a contract of transportation, because the
action was not based on the delay of the goods nor on any "The liability referred to in this article shall cease
contractual relation between the parties litigant and, when the persons mentioned therein prove that
therefore, article 371 of the Code of Commerce, on which they employed all the diligence of a good father
the decision appealed from is based, is not applicable; but of a family to avoid the damage."
it limits to asking for reparation for losses and damages
produced on the patrimony of the plaintiff on account of As an answer to the argument urged in this particular
the unjustified and fraudulent refusal of the carrier to action it may be sufficient to point out that nowhere in our
deliver the goods consigned to the plaintiff as stated by general statutes is the employer penalized for failure to
the sentence, and the carrier's responsibility is clearly laid provide or maintain safe appliances for his workmen. His
down in article 1902 of the Civil Code which binds, in virtue obligation therefore is one 'not punished by the laws' and
of the next article, the defendant company, because the falls under civil rather than criminal jurisprudence. But the
latter is connected with the person who caused the answer may be a broader one. We should be reluctant,
damage by relations of economic character and by under any conditions, to adopt a forced construction of
administrative hierarchy. (Emphasis supplied.) these scientific codes, such as is proposed by the

13
defendant, that would rob some of these articles of effect, while that to the injured bystander would originate in the
would shut out litigants against their will from the civil negligent act itself.
courts, would make the assertion of their rights dependent
upon the selection for prosecution of the proper criminal In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of
offender, and render recovery doubtful by reason of the the 8 of 9-year-old child Salvador Bona brought a civil action against
strict rules of proof prevailing in criminal actions. Even if Moreta to recover damages resulting from the death of the child,
these articles had always stood alone, such a construction who had been run over by an automobile driven and managed by
would be unnecessary, but clear light is thrown upon their the defendant. The trial court rendered judgment requiring the
meaning by the provisions of the Law of Criminal defendant to pay the plaintiff the sum of P1,000 as indemnity: This
Procedure of Spain (Ley de Enjuiciamiento Criminal), Court in affirming the judgment, said in part:
which, though never in actual force in these Islands, was
formerly given a suppletory or explanatory effect. Under
If it were true that the defendant, in coming from the
article 111 of this law, both classes of action, civil and
southern part of Solana Street, had to stop his auto before
criminal, might be prosecuted jointly or separately, but
crossing Real Street, because he had met vehicles which
while the penal action was pending the civil was
were going along the latter street or were coming from
suspended. According to article 112, the penal action once
the opposite direction along Solana Street, it is to be
started, the civil remedy should be sought therewith,
believed that, when he again started to run his auto across
unless it had been waived by the party injured or been
said Real Street and to continue its way along Solana
expressly reserved by him for civil proceedings for the
Street northward, he should have adjusted the speed of
future. If the civil action alone was prosecuted, arising out
the auto which he was operating until he had fully crossed
of a crime that could be enforced only on private
Real Street and had completely reached a clear way on
complaint, the penal action thereunder should be
Solana Street. But, as the child was run over by the auto
extinguished. These provisions are in harmony with those
precisely at the entrance of Solana Street, this accident
of articles 23 and 133 of our Penal Code on the same
could not have occurred if the auto had been running at a
subject.
slow speed, aside from the fact that the defendant, at the
moment of crossing Real Street and entering Solana
An examination of this topic might be carried much Street, in a northward direction, could have seen the child
further, but the citation of these articles suffices to show in the act of crossing the latter street from the sidewalk on
that the civil liability was not intended to be merged in the the right to that on the left, and if the accident had
criminal nor even to be suspended thereby, except as occurred in such a way that after the automobile had run
expressly provided in the law. Where an individual is civilly over the body of the child, and the child's body had
liable for a negligent act or omission, it is not required that already been stretched out on the ground, the automobile
the injured party should seek out a third person criminally still moved along a distance of about 2 meters, this
liable whose prosecution must be a condition precedent to circumstance shows the fact that the automobile entered
the enforcement of the civil right. Solana Street from Real Street, at a high speed without the
defendant having blown the horn. If these precautions had
Under article 20 of the Penal Code the responsibility of an been taken by the defendant, the deplorable accident
employer may be regarded as subsidiary in respect of which caused the death of the child would not have
criminal actions against his employees only while they are occurred.
in process of prosecution, or in so far as they determine
the existence of the criminal act from which liability arises, It will be noticed that the defendant in the above case could have
and his obligation under the civil law and its enforcement been prosecuted in a criminal case because his negligence causing
in the civil courts is not barred thereby unless by the the death of the child was punishable by the Penal Code. Here is
election of the injured person. Inasmuch as no criminal therefore a clear instance of the same act of negligence being a
proceeding had been instituted, growing our of the proper subject-matter either of a criminal action with its consequent
accident in question, the provisions of the Penal Code can civil liability arising from a crime or of an entirely separate and
not affect this action. This construction renders it independent civil action for fault or negligence under article 1902 of
unnecessary to finally determine here whether this the Civil Code. Thus, in this jurisdiction, the separate individually of
subsidiary civil liability in penal actions has survived the a cuasi-delito or culpa aquiliana under the Civil Code has been fully
laws that fully regulated it or has been abrogated by the and clearly recognized, even with regard to a negligent act for which
American civil and criminal procedure now in force in the the wrongdoer could have been prosecuted and convicted in a
Philippines. criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime.
The difficulty in construing the articles of the code above
cited in this case appears from the briefs before us to have Years later (in 1930) this Court had another occasion to apply the
arisen from the interpretation of the words of article 1093, same doctrine. In Bernal and Enverso vs. House and Tacloban Electric
"fault or negligence not punished by law," as applied to & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child,
the comprehensive definition of offenses in articles 568 Purificacion Bernal, brought a civil action to recover damages for the
and 590 of the Penal Code. It has been shown that the child's death as a result of burns caused by the fault and negligence
liability of an employer arising out of his relation to his of the defendants. On the evening of April 10, 1925, the Good Friday
employee who is the offender is not to be regarded as procession was held in Tacloban, Leyte. Fortunata Enverso with her
derived from negligence punished by the law, within the daughter Purificacion Bernal had come from another municipality to
meaning of articles 1902 and 1093. More than this, attend the same. After the procession the mother and the daughter
however, it cannot be said to fall within the class of acts with two others were passing along Gran Capitan Street in front of
unpunished by the law, the consequence of which are the offices of the Tacloban Electric & Ice Plant, Ltd., owned by
regulated by articles 1902 and 1903 of the Civil Code. The defendants J. V. House, when an automobile appeared from the
acts to which these articles are applicable are understood opposite direction. The little girl, who was slightly ahead of the rest,
to be those not growing out of pre-existing duties of the was so frightened by the automobile that she turned to run, but
parties to one another. But where relations already unfortunately she fell into the street gutter where hot water from
formed give rise to duties, whether springing from the electric plant was flowing. The child died that same night from
contract or quasi contract, then breaches of those duties the burns. The trial courts dismissed the action because of the
are subject to articles 1101, 1103, and 1104 of the same contributory negligence of the plaintiffs. But this Court held, on
code. A typical application of this distinction may be found appeal, that there was no contributory negligence, and allowed the
in the consequences of a railway accident due to defective parents P1,000 in damages from J. V. House who at the time of the
machinery supplied by the employer. His liability to his tragic occurrence was the holder of the franchise for the electric
employee would arise out of the contract of employment, plant. This Court said in part:
that to the passengers out of the contract for passage,
14
 Although the trial judge made the findings of fact This theory bases the responsibility of the master
hereinbefore outlined, he nevertheless was led to order ultimately on his own negligence and not on that of his
the dismissal of the action because of the contributory servant.
negligence of the plaintiffs. It is from this point that a
majority of the court depart from the stand taken by the The doctrine of the case just cited was followed by this Court in Cerf
trial judge. The mother and her child had a perfect right to vs. Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint
be on the principal street of Tacloban, Leyte, on the alleged that the defendant's servant had so negligently driven an
evening when the religious procession was held. There automobile, which was operated by defendant as a public vehicle,
was nothing abnormal in allowing the child to run along a that said automobile struck and damaged the plaintiff's motorcycle.
few paces in advance of the mother. No one could foresee This Court, applying article 1903 and following the rule in Bahia vs.
the coincidence of an automobile appearing and of a Litonjua and Leynes, said in part (p. 41) that:
frightened child running and falling into a ditch filled with
hot water. The doctrine announced in the much debated
The master is liable for the negligent acts of his servant
case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7
where he is the owner or director of a business or
Phil., 359), still rule. Article 1902 of the Civil Code must
enterprise and the negligent acts are committed while the
again be enforced. The contributory negligence of the
servant is engaged in his master's employment as such
child and her mother, if any, does not operate as a bar to
owner.
recovery, but in its strictest sense could only result in
reduction of the damages.
Another case which followed the decision in Bahia vs. Litonjua and
Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year
It is most significant that in the case just cited, this Court specifically
1930). The latter case was an action for damages brought by Cuison
applied article 1902 of the Civil Code. It is thus that although J. V.
for the death of his seven-year-old son Moises. The little boy was on
House could have been criminally prosecuted for reckless or simple
his way to school with his sister Marciana. Some large pieces of
negligence and not only punished but also made civilly liable
lumber fell from a truck and pinned the boy underneath, instantly
because of his criminal negligence, nevertheless this Court awarded
killing him. Two youths, Telesforo Binoya and Francisco Bautista,
damages in an independent civil action for fault or negligence under
who were working for Ora, an employee of defendant Norton &
article 1902 of the Civil Code.
Harrison Co., pleaded guilty to the crime of homicide through
reckless negligence and were sentenced accordingly. This Court,
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action applying articles 1902 and 1903, held:
was for damages for the death of the plaintiff's daughter alleged to
have been caused by the negligence of the servant in driving an
The basis of civil law liability is not respondent superior but
automobile over the child. It appeared that the cause of the mishap
the relationship of pater familias. This theory bases the
was a defect in the steering gear. The defendant Leynes had rented
liability of the master ultimately on his own negligence and
the automobile from the International Garage of Manila, to be used
not on that of his servant. (Bahia vs. Litonjua and Leynes
by him in carrying passengers during the fiesta of Tuy, Batangas.
[1915], 30 Phil., 624; Cangco vs. Manila Railroad Co.
Leynes was ordered by the lower court to pay P1,000 as damages to
[1918], 38 Phil., 768.)
the plaintiff. On appeal this Court reversed the judgment as to
Leynes on the ground that he had shown that the exercised the care
of a good father of a family, thus overcoming the presumption of In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
negligence under article 1903. This Court said: Phil., 517 (year 1930) the plaintiff brought an action for damages for
the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):
As to selection, the defendant has clearly shown that he
exercised the care and diligence of a good father of a
family. He obtained the machine from a reputable garage The evidence shows that Captain Lasa at the time the
and it was, so far as appeared, in good condition. The plaintiff's wharf collapsed was a duly licensed captain,
workmen were likewise selected from a standard garage, authorized to navigate and direct a vessel of any tonnage,
were duly licensed by the Government in their particular and that the appellee contracted his services because of
calling, and apparently thoroughly competent. The his reputation as a captain, according to F. C. Cadwallader.
machine had been used but a few hours when the This being so, we are of the opinion that the presumption
accident occurred and it is clear from the evidence that of liability against the defendant has been overcome by
the defendant had no notice, either actual or constructive, the exercise of the care and diligence of a good father of a
of the defective condition of the steering gear. family in selecting Captain Lasa, in accordance with the
doctrines laid down by this court in the cases cited above,
and the defendant is therefore absolved from all liability.
The legal aspect of the case was discussed by this Court thus:

It is, therefore, seen that the defendant's theory about his

Article 1903 of the Civil Code not only establishes liability
secondary liability is negatived by the six cases above set forth. He
in cases of negligence, but also provides when the liability
is, on the authority of these cases, primarily and directly responsible
shall cease. It says:
in damages under article 1903, in relation to article 1902, of the Civil
Code.
"The liability referred to in this article shall cease
when the persons mentioned therein prove that
Let us now take up the Philippine decisions relied upon by the
they employed all the diligence of a good father
defendant. We study first, City of Manila vs. Manila Electric Co., 52
of a family to avoid the damage."
Phil., 586 (year 1928). A collision between a truck of the City of
Manila and a street car of the Manila Electric Co. took place on June
From this article two things are apparent: (1) That when an 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto
injury is caused by the negligence of a servant or employee Eustaquio, the motorman, was prosecuted for the crime of damage
there instantly arises a presumption of law that there was to property and slight injuries through reckless imprudence. He was
negligence on the part of the matter or employer either in found guilty and sentenced to pay a fine of P900, to indemnify the
the selection of the servant or employee, or in supervision City of Manila for P1,788.27, with subsidiary imprisonment in case of
over him after the selection, or both; and (2) that insolvency. Unable to collect the indemnity from Eustaquio, the City
presumption is juris tantum and not juris et de jure, and of Manila filed an action against the Manila Electric Company to
consequently, may be rebutted. It follows necessarily that obtain payment, claiming that the defendant was subsidiarily liable.
if the employer shows to the satisfaction of the court that The main defense was that the defendant had exercised the
in selection and supervision he has exercised the care and diligence of a good father of a family to prevent the damage. The
diligence of a good father of a family, the presumption is
overcome and he is relieve from liability.
15
lower court rendered judgment in favor of the plaintiff. This Court 1903 of the Civil Code is different in character from his subsidiary
held, in part, that this case was governed by the Penal Code, saying: liability under the Penal Code.

With this preliminary point out of the way, there is no In trying to apply the two cases just referred to, counsel for the
escaping the conclusion that the provisions of the Penal defendant has failed to recognize the distinction between civil
Code govern. The Penal Code in easily understandable liability arising from a crime, which is governed by the Penal Code,
language authorizes the determination of subsidiary and the responsibility for cuasi-delito or culpa aquiliana under the
liability. The Civil Code negatives its application by Civil Code, and has likewise failed to give the importance to the
providing that civil obligations arising from crimes or latter type of civil action.
misdemeanors shall be governed by the provisions of the
Penal Code. The conviction of the motorman was a The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil.,
misdemeanor falling under article 604 of the Penal Code. 327). That case need not be set forth. Suffice it to say that the
The act of the motorman was not a wrongful or negligent question involved was also civil liability arising from a crime. Hence,
act or omission not punishable by law. Accordingly, the it is as inapplicable as the two cases above discussed.
civil obligation connected up with the Penal Code and not
with article 1903 of the Civil Code. In other words, the
The foregoing authorities clearly demonstrate the separate
Penal Code affirms its jurisdiction while the Civil Code
individuality of cuasi-delitos or culpa aquiliana under the Civil Code.
negatives its jurisdiction. This is a case of criminal
Specifically they show that there is a distinction between civil
negligence out of which civil liability arises and not a case
liability arising from criminal negligence (governed by the Penal
of civil negligence.
Code) and responsibility for fault or negligence under articles 1902
to 1910 of the Civil Code, and that the same negligent act may
xxx xxx xxx produce either a civil liability arising from a crime under the Penal
Code, or a separate responsibility for fault or negligence under
Our deduction, therefore, is that the case relates to the articles 1902 to 1910 of the Civil Code. Still more concretely, the
Penal Code and not to the Civil Code. Indeed, as pointed authorities above cited render it inescapable to conclude that the
out by the trial judge, any different ruling would permit employer — in this case the defendant-petitioner — is primarily and
the master to escape scot-free by simply alleging and directly liable under article 1903 of the Civil Code.
proving that the master had exercised all diligence in the
selection and training of its servants to prevent the The legal provisions, authors, and cases already invoked should
damage. That would be a good defense to a strictly civil ordinarily be sufficient to dispose of this case. But inasmuch as we
action, but might or might not be to a civil action either as are announcing doctrines that have been little understood in the
a part of or predicated on conviction for a crime or past, it might not be inappropriate to indicate their foundations.
misdemeanor. (By way of parenthesis, it may be said
further that the statements here made are offered to
Firstly, the Revised Penal Code in article 365 punishes not only
meet the argument advanced during our deliberations to
reckless but also simple negligence. If we were to hold that articles
the effect that article 0902 of the Civil Code should be
1902 to 1910 of the Civil Code refer only to fault or negligence not
disregarded and codal articles 1093 and 1903 applied.)
punished by law, according to the literal import of article 1093 of the
Civil Code, the legal institution of culpa aquiliana would have very
It is not clear how the above case could support the defendant's little scope and application in actual life. Death or injury to persons
proposition, because the Court of Appeals based its decision in the and damage to property through any degree of negligence — even
present case on the defendant's primary responsibility under article the slightest — would have to be indemnified only through the
1903 of the Civil Code and not on his subsidiary liability arising from principle of civil liability arising from a crime. In such a state of
Fontanilla's criminal negligence. In other words, the case of City of affairs, what sphere would remain for cuasi-delito or culpa
Manila vs. Manila Electric Co., supra, is predicated on an entirely aquiliana? We are loath to impute to the lawmaker any intention to
different theory, which is the subsidiary liability of an employer bring about a situation so absurd and anomalous. Nor are we, in the
arising from a criminal act of his employee, whereas the foundation interpretation of the laws, disposed to uphold the letter that killeth
of the decision of the Court of Appeals in the present case is the rather than the spirit that giveth life. We will not use the literal
employer's primary liability under article 1903 of the Civil Code. We meaning of the law to smother and render almost lifeless a principle
have already seen that this is a proper and independent remedy. of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case articles 1902 to 1910 of the Spanish Civil Code.
invoked by the defendant. A motorman in the employ of the Manila
Electric Company had been convicted o homicide by simple Secondly, to find the accused guilty in a criminal case, proof of guilt
negligence and sentenced, among other things, to pay the heirs of beyond reasonable doubt is required, while in a civil case,
the deceased the sum of P1,000. An action was then brought to preponderance of evidence is sufficient to make the defendant pay
enforce the subsidiary liability of the defendant as employer under in damages. There are numerous cases of criminal negligence which
the Penal Code. The defendant attempted to show that it had can not be shown beyond reasonable doubt, but can be proved by a
exercised the diligence of a good father of a family in selecting the preponderance of evidence. In such cases, the defendant can and
motorman, and therefore claimed exemption from civil liability. But should be made responsible in a civil action under articles 1902 to
this Court held: 1910 of the Civil Code. Otherwise, there would be many instances of
unvindicated civil wrongs. Ubi jus ibi remedium.
In view of the foregoing considerations, we are of opinion
and so hold, (1) that the exemption from civil liability Thirdly, to hold that there is only one way to make defendant's
established in article 1903 of the Civil Code for all who liability effective, and that is, to sue the driver and exhaust his (the
have acted with the diligence of a good father of a family, latter's) property first, would be tantamount to compelling the
is not applicable to the subsidiary civil liability provided in plaintiff to follow a devious and cumbersome method of obtaining
article 20 of the Penal Code. relief. True, there is such a remedy under our laws, but there is also
a more expeditious way, which is based on the primary and direct
The above case is also extraneous to the theory of the defendant in responsibility of the defendant under article 1903 of the Civil Code.
the instant case, because the action there had for its purpose the Our view of the law is more likely to facilitate remedy for civil
enforcement of the defendant's subsidiary liability under the Penal wrongs, because the procedure indicated by the defendant is
Code, while in the case at bar, the plaintiff's cause of action is based wasteful and productive of delay, it being a matter of common
on the defendant's primary and direct responsibility under article knowledge that professional drivers of taxis and similar public
1903 of the Civil Code. In fact, the above case destroys the conveyance usually do not have sufficient means with which to pay
defendant's contention because that decision illustrates the damages. Why, then, should the plaintiff be required in all cases to
principle that the employer's primary responsibility under article go through this roundabout, unnecessary, and probably useless
16
procedure? In construing the laws, courts have endeavored to G.R. No. L-12219 March 15, 1918
shorten and facilitate the pathways of right and justice.
AMADO PICART, plaintiff-appellant,
At this juncture, it should be said that the primary and direct vs.FRANK SMITH, JR., defendant-appellee.
responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and employees Alejo Mabanag for appellant.
should be carefully chosen and supervised in order to avoid injury to G. E. Campbell for appellee.
the public. It is the masters or employers who principally reap the
profits resulting from the services of these servants and employees.
STREET, J.:
It is but right that they should guarantee the latter's careful conduct
for the personnel and patrimonial safety of others. As Theilhard has
said, "they should reproach themselves, at least, some for their In this action the plaintiff, Amado Picart, seeks to recover of the
weakness, others for their poor selection and all for their defendant, Frank Smith, jr., the sum of P31,000, as damages alleged
negligence." And according to Manresa, "It is much more equitable to have been caused by an automobile driven by the defendant.
and just that such responsibility should fall upon the principal or From a judgment of the Court of First Instance of the Province of La
director who could have chosen a careful and prudent employee, Union absolving the defendant from liability the plaintiff has
and not upon the injured person who could not exercise such appealed.
selection and who used such employee because of his confidence in
the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also The occurrence which gave rise to the institution of this action took
base this primary responsibility of the employer on the principle of place on December 12, 1912, on the Carlatan Bridge, at San
representation of the principal by the agent. Thus, Oyuelos says in Fernando, La Union. It appears that upon the occasion in question
the work already cited (Vol. 7, p. 747) that before third persons the the plaintiff was riding on his pony over said bridge. Before he had
employer and employee "vienen a ser como una sola personalidad, gotten half way across, the defendant approached from the
por refundicion de la del dependiente en la de quien le emplea y opposite direction in an automobile, going at the rate of about ten
utiliza." ("become as one personality by the merging of the person or twelve miles per hour. As the defendant neared the bridge he saw
of the employee in that of him who employs and utilizes him.") All a horseman on it and blew his horn to give warning of his approach.
these observations acquire a peculiar force and significance when it He continued his course and after he had taken the bridge he gave
comes to motor accidents, and there is need of stressing and two more successive blasts, as it appeared to him that the man on
accentuating the responsibility of owners of motor vehicles. horseback before him was not observing the rule of the road.

Fourthly, because of the broad sweep of the provisions of both the The plaintiff, it appears, saw the automobile coming and heard the
Penal Code and the Civil Code on this subject, which has given rise to warning signals. However, being perturbed by the novelty of the
the overlapping or concurrence of spheres already discussed, and apparition or the rapidity of the approach, he pulled the pony
for lack of understanding of the character and efficacy of the action closely up against the railing on the right side of the bridge instead
for culpa aquiliana, there has grown up a common practice to seek of going to the left. He says that the reason he did this was that he
damages only by virtue of the civil responsibility arising from a thought he did not have sufficient time to get over to the other side.
crime, forgetting that there is another remedy, which is by invoking The bridge is shown to have a length of about 75 meters and a width
articles 1902-1910 of the Civil Code. Although this habitual method of 4.80 meters. As the automobile approached, the defendant
is allowed by our laws, it has nevertheless rendered practically guided it toward his left, that being the proper side of the road for
useless and nugatory the more expeditious and effective remedy the machine. In so doing the defendant assumed that the horseman
based on culpa aquiliana or culpa extra-contractual. In the present would move to the other side. The pony had not as yet exhibited
case, we are asked to help perpetuate this usual course. But we fright, and the rider had made no sign for the automobile to stop.
believe it is high time we pointed out to the harm done by such Seeing that the pony was apparently quiet, the defendant, instead of
practice and to restore the principle of responsibility for fault or veering to the right while yet some distance away or slowing down,
negligence under articles 1902 et seq. of the Civil Code to its full continued to approach directly toward the horse without diminution
rigor. It is high time we caused the stream of quasi-delict or culpa of speed. When he had gotten quite near, there being then no
aquiliana to flow on its own natural channel, so that its waters may possibility of the horse getting across to the other side, the
no longer be diverted into that of a crime under the Penal Code. This defendant quickly turned his car sufficiently to the right to escape
will, it is believed, make for the better safeguarding of private rights hitting the horse alongside of the railing where it as then standing;
because it re-establishes an ancient and additional remedy, and for but in so doing the automobile passed in such close proximity to the
the further reason that an independent civil action, not depending animal that it became frightened and turned its body across the
on the issues, limitations and results of a criminal prosecution, and bridge with its head toward the railing. In so doing, it as struck on
entirely directed by the party wronged or his counsel, is more likely the hock of the left hind leg by the flange of the car and the limb
to secure adequate and efficacious redress. was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that
In view of the foregoing, the judgment of the Court of Appeals when the accident occurred the free space where the pony stood
should be and is hereby affirmed, with costs against the defendant- between the automobile and the railing of the bridge was probably
petitioner. 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
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.
several days.

The question presented for decision is whether or not the defendant

in maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right to assume that
the horse and the rider would pass over to the proper side; but as he
moved toward the center of the bridge it was demonstrated to his
eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in
front of the moving vehicle. In the nature of things this change of
situation occurred while the automobile was yet some distance
away; and from this moment it was not longer within the power of
the plaintiff to escape being run down by going to a place of greater
safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an
17
immediate stop or, seeing that there were no other persons on the cars which were hauled along a narrow track. At certain spot near
bridge, to take the other side and pass sufficiently far away from the the water's edge the track gave way by reason of the combined
horse to avoid the danger of collision. Instead of doing this, the effect of the weight of the car and the insecurity of the road bed.
defendant ran straight on until he was almost upon the horse. He The car was in consequence upset; the rails slid off; and the
was, we think, deceived into doing this by the fact that the horse plaintiff's leg was caught and broken. It appeared in evidence that
had not yet exhibited fright. But in view of the known nature of the accident was due to the effects of the typhoon which had
horses, there was an appreciable risk that, if the animal in question dislodged one of the supports of the track. The court found that the
was unacquainted with automobiles, he might get exited and jump defendant company was negligent in having failed to repair the bed
under the conditions which here confronted him. When the of the track and also that the plaintiff was, at the moment of the
defendant exposed the horse and rider to this danger he was, in our accident, guilty of contributory negligence in walking at the side of
opinion, negligent in the eye of the law. 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
The test by which to determine the existence of negligence in a having failed to keep the track in proper repair nevertheless the
particular case may be stated as follows: Did the defendant in doing amount of the damages should be reduced on account of the
the alleged negligent act use that person would have used in the contributory negligence in the plaintiff. As will be seen the
same situation? If not, then he is guilty of negligence. The law here defendant's negligence in that case consisted in an omission only.
in effect adopts the standard supposed to be supplied by the The liability of the company arose from its responsibility for the
imaginary conduct of the discreet paterfamilias of the Roman law. dangerous condition of its track. In a case like the one now before
The existence of negligence in a given case is not determined by us, where the defendant was actually present and operating the
reference to the personal judgment of the actor in the situation automobile which caused the damage, we do not feel constrained to
before him. The law considers what would be reckless, attempt to weigh the negligence of the respective parties in order to
blameworthy, or negligent in the man of ordinary intelligence and apportion the damage according to the degree of their relative fault.
prudence and determines liability by that. 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
The question as to what would constitute the conduct of a prudent
in the case.
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 A point of minor importance in the case is indicated in the special
but this much can be profitably said: Reasonable men govern their defense pleaded in the defendant's answer, to the effect that the
conduct by the circumstances which are before them or known to subject matter of the action had been previously adjudicated in the
them. They are not, and are not supposed to be, omniscient of the court of a justice of the peace. In this connection it appears that
future. Hence they can be expected to take care only when there is soon after the accident in question occurred, the plaintiff caused
something before them to suggest or warn of danger. Could a criminal proceedings to be instituted before a justice of the peace
prudent man, in the case under consideration, foresee harm as a charging the defendant with the infliction of serious injuries
result of the course actually pursued? If so, it was the duty of the (lesiones graves). At the preliminary investigation the defendant was
actor to take precautions to guard against that harm. Reasonable discharged by the magistrate and the proceedings were dismissed.
foresight of harm, followed by ignoring of the suggestion born of Conceding that the acquittal of the defendant at the trial upon the
this prevision, is always necessary before negligence can be held to merits in a criminal prosecution for the offense mentioned would be
exist. Stated in these terms, the proper criterion for determining the res adjudicata upon the question of his civil liability arising from
existence of negligence in a given case is this: Conduct is said to be negligence -- a point upon which it is unnecessary to express an
negligent when a prudent man in the position of the tortfeasor opinion -- the action of the justice of the peace in dismissing the
would have foreseen that an effect harmful to another was criminal proceeding upon the preliminary hearing can have no
sufficiently probable to warrant his foregoing conduct or guarding effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
against its consequences.
From what has been said it results that the judgment of the lower
Applying this test to the conduct of the defendant in the present court must be reversed, and judgment is her rendered that the
case we think that negligence is clearly established. A prudent man, plaintiff recover of the defendant the sum of two hundred pesos
placed in the position of the defendant, would in our opinion, have (P200), with costs of other instances. The sum here awarded is
recognized that the course which he was pursuing was fraught with estimated to include the value of the horse, medical expenses of the
risk, and would therefore have foreseen harm to the horse and the plaintiff, the loss or damage occasioned to articles of his apparel,
rider as reasonable consequence of that course. Under these and lawful interest on the whole to the date of this recovery. The
circumstances the law imposed on the defendant the duty to guard other damages claimed by the plaintiff are remote or otherwise of
against the threatened harm. such character as not to be recoverable. So ordered.

It goes without saying that the plaintiff himself was not free from Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher,
fault, for he was guilty of antecedent negligence in planting himself JJ., concur.
on the wrong side of the road. But as we have already stated, the Johnson, J., reserves his vote.
defendant was also negligent; and in such case the problem always
is to discover which agent is immediately and directly responsible. It Separate Opinions
will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded MALCOLM, J., concurring:
the negligence of the plaintiff by an appreciable interval. Under
these circumstances the law is that the person who has the last fair
After mature deliberation, I have finally decided to concur with the
chance to avoid the impending harm and fails to do so is chargeable
judgment in this case. I do so because of my understanding of the
with the consequences, without reference to the prior negligence of
"last clear chance" rule of the law of negligence as particularly
the other party.
applied to automobile accidents. This rule cannot be invoked where
the negligence of the plaintiff is concurrent with that of the
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 defendant. Again, if a traveler when he reaches the point of collision
Phil. Rep., 359) should perhaps be mentioned in this connection. is in a situation to extricate himself and avoid injury, his negligence
This Court there held that while contributory negligence on the part at that point will prevent a recovery. But Justice Street finds as a fact
of the person injured did not constitute a bar to recovery, it could be that the negligent act of the interval of time, and that at the
received in evidence to reduce the damages which would otherwise moment the plaintiff had no opportunity to avoid the accident.
have been assessed wholly against the other party. The defendant Consequently, the "last clear chance" rule is applicable. In other
company had there employed the plaintiff, as a laborer, to assist in words, when a traveler has reached a point where he cannot
transporting iron rails from a barge in Manila harbor to the extricate himself and vigilance on his part will not avert the injury,
company's yards located not far away. The rails were conveyed upon his negligence in reaching that position becomes the condition and

18
not the proximate cause of the injury and will not preclude a sense of hearing and neck movement. For a long period, he also felt
recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.) pain all over his body.

G.R. No. L-29889 May 31, 1979 Victorino Cusi claimed that prior to the accident he was a successful
businessman — the Special Assistant to the Dolor Lopez Enterprises,
VICTORINO CUSI and PILAR POBRE, plaintiffs-appellees, the managing partner of Cusi and Rivera Partnership, the manager
vs.PHILIPPINE NATIONAL RAILWAYS, defendant-appellant. of his ricemill, and with substantial investments in other business
enterprises. As a result of his injuries, he was unable to properly
attend to his various business undertakings. On the other hand, his
Leopoldo M. Abellera for appellant.
wife, Pilar, was a skilled music and piano teacher. After the accident,
Francisco V. Marasigan for appellees.
she lost the dexterity of her fingers forcing her to quit her
profession. She also bore ugly scars on several parts of her body, and
GUERRERO, J.: she suffered anxiety of a possible miscarriage being then five (5)
months pregnant at the time of the accident.
Direct appeal from the decision of the Court of First Instance of Rizal
ordering defendant-appellant to indemnify the plaintiffs- appellees The defense is centered on the proposition that the gross negligence
in the total amount of Two Hundred Thirty-Nine Thousand and Six of Victorino Cusi was the proximate cause of the collision; that had
Hundred Forty-Eight Pesos, and Seventy-Two Centavos he made a full stop before traversing the crossing as required by
(P239,648.72) for injuries received in a collision caused by the gross section 56(a) of Act 3992 (Motor Vehicle Law), he could have seen
negligence of defendant-appellant, plus Ten Thousand Pesos and heard the approach of the train, and thus, there would have
(P10,000.00) as attorney's fees and expenses of litigation. been no collision.

Upon the amended and supplemental complaints for damages filed After a protracted trial, the lower court rendered the decision now
by plaintiffs-appellees, the spouses Victorino Cusi and Pilar Pobre subject of the appeal. Defendant-appellant seeks the reversal of said
before the Court of First Instance of Rizal against the Manila Railroad decision; but should we affirm the same, that the award be reduced
Company, now the Philippine National Railways and duly answered to a reasonable amount.
by the latter and after due hearing. the following facts appear as
undisputed: On the night of October 5, 1963, plaintiffs-appellees
As the action is predicated on negligence, the New Civil
attended a birthday party inside the United Housing Subdivision in
Code 1 making clear that "whoever by act or omission causes
Paranaque, Rizal. After the party which broke up at about 11 o'clock
damage to another, there being fault or negligence, is obliged to pay
that evening, the plaintiffs-appellees proceeded home in their
for the damage done the crucial question posed in the petition at
Vauxhall car with Victorino Cusi at the wheel. Upon reaching the
bar is the existence of negligence on the part of defendant-appellant
railroad tracks, finding that the level crossing bar was raised and
as found by the lower court.
seeing that there was no flashing red light, and hearing no whistle
from any coming train, Cusi merely slack ened his speed and
proceeded to cross the tracks. At the same time, a train bound for 1. The question of negligence being one of fact, the lower court's
Lucena traversed the crossing, resulting in a collision between the finding of negligence on the part of the defendant-appellant
two. The impact threw the plaintiffs-appellees out of their car which deserves serious consideration by the Court. It commands great
was smashed. One Benjamin Franco, who came from the same party respect and weight, the reason being that the trial judge, having the
and was driving a vehicle right behind them, rushed to their aid and advantage of hearing the parties testify and of observing their
brought them. to San Juan de Dios Hospital for emergency demeanor on the witness stand, is better situated to make
treatment. Later, the plaintiffs-appellees were transferred to the conclusions of facts. Thus, it has been the standing practice of
Philippine General Hospital. A week later, Mrs. Cusi transferred to appellate courts to accord lower court's judgments the presumption
the Manila Doctors Hospital where Dr. Manuel Rivera, head of the of correctness. And unless it can be shown that error or errors,
Orthopedic and Fracture Service of the Philippine General Hospital substantial in character, be shown in the conclusion arrived at, or
performed on her a second operation and continued to treat her that there was abuse in judicial scrutiny, We are bound by their
until her discharge from the hospital on November 2, 1963. judgments. On this ground alone We can rest the affirmance of the
Thereafter, Dr. Rivera treated her as an out-patient until the end of judgment appealed from.2
February, 1964 although by that time the fractured bones had not
yet healed. Mrs. Cusi was also operated on by Dr. Francisco Aguilar, 2. Nor is the result different even if no such presumption were
Director of the National Orthopedic Hospital, in May, 1964 and in indulged in, that is, even if We were to resolve whether or not there
August, 1965, after another operation in her upper body from the exist compelling reasons for an ultimate reversal.
chest to the abdomen, she was placed in cast for some three (3)
months and her right arm immobilized by reason of the past The judicial pronouncement below that the gross negligence of
defendant-appellant was the proximate cause of the collision has
As enumerated in the Medical Certificate (Exh. "J"), Mrs. Cusi been thoroughly reviewed by this Court and we fully affirm the
suffered the following: same.

(1) Fracture open middle third humerus right Negligence has been defined by Judge Cooley in his work on Torts 3d
(2) Fracture mandible right paramedian ed sec. 13243 as "the failure to observe for the protection of the
(3) Fracture fibula left distal interests of another person that degree of care, precaution, and
(4) Concussion, cerebral vigilance which the circumstances justly demand, whereby such
(5) Abrasions, multiple (face, head, lumbosacral other person suffers injury." By such a test, it can readily be seen
and extremities) that there is no hard and fast rule whereby such degree of care and
(6) Lacerations (2) right temporal vigilance is measured, it is dependent upon the circumstances in
(7) Contusions with hematoma left forehead and which a person finds himself so situated. All that the law requires is
parieto occipital right. that it is always incumbent upon a person to use that care and
diligence expected of reasonable men under similar circumstances.
For these injuries, she underwent a total of four surgical opera.
petitions in a period of two years. As a result of the fracture on her These are the circumstances attendant to the collision.
right arm, there was a shortening of about 1 cm. of that arm. She Undisputably, the warning devices installed at the railroad crossing
lost the flexibility of her wrist, elbow and shoulder. Up to the time were manually operated; there were only 2 shifts of guards provided
she took the witness stand in August, 1966, she still had an for the operation thereof — one, the 7:00 A.M. to 3:00 P. M. shift,
intermedullary nail in the bone of her right arm Likewise, Victorino and the other, the 3:00 P.M. to 11:00 P.M. shift. On the night of the
Cusi suffered brain injuries which affected his speech, memory, accident, the train for Lucena was on an unscheduled trip after
11:00 P.M. During that precise hour, the warning devices were not

19
operating for no one attended to them. Also, as observed by the contributory negligence, thereby precluding them from recovering
lower court, the locomotive driver did not blow his whistle, thus: "... indemnity for their injuries and damages.
he simply sped on without taking an extra precaution of blowing his
whistle from a distance of 50 to 10 meters from the crossing. That The candor of defendant-appellant in interposing such a defense is
the train was running at full speed is attested to by the fact that doubtful. As seemingly observed by the lower court, the defense,
notwithstanding the application of the emergency brakes, the train through inadvertence or deliberateness, did not pursue further the
did not stop until it reached a distance of around 100 meters." excepting clause of the same section thus to go on:

These facts assessed together show the inadequacy, nay, the Provided, however, that the driver of a
absence, of precautions taken by the defendant-appellant to warn passenger automobile or motorcycle
the travelling public of the impending danger. It is clear to Us that as may instead of coming to a full stop, slow down
the signal devices were wholly manually-operated, there was an to not more than ten kilometers per hour
urgent need for a flagman or guard to man the crossing at all times. whenever it is apparent that no hazard exists.
As it was, the crossing was left unattended to after eleven o'clock
every night and on the night of the accident. We cannot in all reason
After a thorough perusal of the facts attendant to the case, this
justify or condone the act of the defendant-appellant allowing the
Court is in fun accord with the lower court. Plaintiff-appellee
subject locomotive to travel through the unattended crossing with
Victorino Cusi had exercised all the necessary precautions required
inoperative signal devices, but without sending any of its employees
of him as to avoid injury to -himself and to others. We find no need
to operate said signal devices so as to warn oncoming motorists of
for him to have made a full stop; relying on his faculties of sight and
the approach of one of its locomotives. It is not surprising therefore
hearing, Victorino Cusi had no reason to anticipate the impending
that the in operation of the warning devices created a situation
danger. The record shows that the spouses Cusi previously knew of
which was misunderstood by the riding public to mean safe passage.
the existence of the railroad crossing, having stopped at the
Jurisprudence recognizes that if warning devices are installed in
guardhouse to ask for directions before proceeding to the party. At
railroad crossings, the travelling public has the right to rely on such
the crossing, they found the level bar raised, no warning lights
warning devices to put them on their guard and take the necessary
flashing nor warning bells ringing, nor whistle from an oncoming
precautions before crossing the tracks. A need, therefore, exists for
train. They safely traversed the crossing. On their return home, the
the railroad company to use reasonable care to keep such devices in
situation at the crossing did not in the least change, except for the
good condition and in working order, or to give notice that they are
absence of the guard or flagman. Hence, on the same impression
not operating, since if such a signal is misunderstood it is a
that the crossing was safe for passage as before, plaintiff-appellee
menace. 4 Thus, it has been held that if a railroad company
Victorino Cusi merely slackened his speed and proceeded to cross
maintains a signalling device at a crossing to give warning of the
the tracks, driving at the proper rate of speed for going over railroad
approach of a train, the failure of the device to operate is generally
crossings. Had defendant-appellant been successful in establishing
held to be evidence of negligence, which maybe considered with all
that its locomotive driver blew his whistle to warn motorists of his
the circumstances of the case in determining whether the railroad
approach to compensate for the absence of the warning signals, and
company was negligent as a matter of fact. 5
that Victorino Cusi, instead of stopping or slackening his speed,
proceeded with reckless speed and regardless of possible or
The set of circumstances surrounding the collision subject of this threatened danger, then We would have been put in doubt as to the
case is very much similar to that of Lilius v. Manila Railroad degree of prudence exercised by him and would have, in all
Company, 59 Phil. 758 (1934), where this Court upheld the lower probability, declared him negligent. 6 But as the contrary was
court's finding of negligence on the part of defendant locomotive established, we remain convinced that Victorino Cusi had not,
company upon the following facts — through his own negligence, contributed to the accident so as to
deny him damages from the defendant-appellant.
... on the part of the defendant company, for not
having had on that occasion any semaphore at The only question that now remains to be resolved is the
the crossing at Dayap to serve as a warning to reasonableness of the amount awarded as damages to the plaintiffs-
passersby of its existence in order that they appellees.
might take the necessary precautions before
crossing the railroad; and, on the part of its
The following actual expenses and losses are fully substantiated:
employees — the flagman and switchman, for
not having remained at his post at the crossing in
question to warn passersby of the approaching (a) Hospital bills of Mrs. Cusi from October, 1963 to May,
train; the station master, for failure to send the 1964 in the amount of Thirteen Thousand Five
said flagman and switchman to his post on time; Hundred Fifty Pesos and Five Centavos
and the engineer, for not having taken the (P13,550.05);
necessary precautions to avoid an accident, in (b) Another hospital bill of Mrs. Cusi in 1965 in the
view of the absence of said flagman and amount of Three Thousand and One Pesos and
switchman, by slackening his speed and Ninety Centavos (P3,001.90);
continuously ringing the bell and blowing the (c) Doctor's fees for two surgical operations performed
whistle before arriving at the crossing. on Mrs. Cusi by one Dr. Manuel Rivera in the
amount of One Thousand and Five Hundred Pesos
(Pl,500.00);
Defendant-appellant rests its defense mainly on Section 56(a) of the
(d) Loss of Victorino's wrist watch valued at Two Hundred
Motor Vehicle Law. Thus:
and Fifty Pesos (P250.00);
(e) Loss of Pilar's half of her pair of demand earrings(l-
Section 56(a) — Traversing through streets and ½carrats) valued at Two Thousand Seven Hundred
railroad crossing, etc, — All vehicles moving on and Fifty Pesos (P2,750,00);
the public highways shall be brought to a full (f) Repair of the damaged Vauxhall car in the amount of
stop before traversing any 'through street' or Two Thousand Eight Hundred and Ninety Four
railroad crossing. Whenever any such 'through Pesos and Seventy- Seven Centavos (P2,894.77).
street' or crossing is so designated and
signposted, it shall be unlawful for the driver of
The total award of actual damages in the amount of Twenty Three
any vehicle to fail to stop within twenty meters
Thousand Nine Hundred Forty-Six Pesos and Seventy-Two Centavos
but not less than two and one-half meters from
(P23,946.72) is, therefore, correct.
such through street or railroad crossing.

The lower court awarded Twenty-One Thousand Six Hundred Pesos

The defense presupposes that the failure of plaintiffs-appellees to
(P21,600.00) to Mrs. Cusi for loss of income for the three years that
stop before proceeding to traverse the crossing constitutes

20
she was under constant medical treatment, and Fourteen Thousand
Pesos (P14,000.00) for impairment of her earning capacity; and
Forty Thousand Pesos (P 40,000.00) to Mr. Cusi for loss of income
for the eight months that he was disabled and impairment of his
earning capacity. We find the award reasonable. The records show
that Mrs. Cusi, previously a skilled piano teacher averaging a
monthly income of Six Hundred Pesos (P600.00), cannot now teach
nor play the piano since the accident which resulted in the loss of
the dexterity of her fingers; likewise, Mr. Cusi cannot now vigorously
attend to his businesses which previously netted him a monthly
average income of Five Thousand Pesos (P5,000.00).

As regards the award of Twenty Thousand Pesos (P20,000.00) for

profits which Victorino Cusi failed to realize from a certain real
estate transaction with the Dolor Lopez Enterprises, we affirm the
same as the defendant-appellant has failed to present an iota of
evidence to overcome plaintiffs-appellees' evidence credited by the
lower court as to the certainty of the materialization of the stated
transaction. G.R. No. 129792 December 21, 1999

The award of Seventy Thousand Pesos (P70,000.00) to Mrs. Cusi and JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE
Fifty Thousand Pesos (P50,000.00) to Victorino Cusi as moral and ELISA PANELO, petitioners,
damages is not excessive. In their own respective fields of endeavor, vs.
both were successful. Now they have to bear throughout their HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and
whole lifetime the humiliation wrought by their physical deformities CRISELDA R. AGUILAR, respondents.
which no doubt affected, and will continue to do so, their social
lives, their financial undertakings, and even their mental attitudes. DAVIDE, JR., J.:

Likewise, the amount of Ten Thousand Pesos (P10,000.00) given as In this petition for review on certiorari under Rule 45 of the Rules of
attorney's fees and expenses of litigation is not unreasonable. The Court, petitioners seek the reversal of the 17 June 1996 decision 1 of
total amount of damages awarded by the trial court should bear the Court of Appeals in C.A. G.R. No. CV 37937 and the
legal interest at 6% from the rendition of the j judgment, which was resolution 2 denying their motion for reconsideration. The assailed
on March 26, 1968. decision set aside the 15 January 1992 judgment of the Regional
Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
WHEREFORE, the judgment of the lower court is hereby AFFIRMED ordered petitioners to pay damages and attorney's fees to private
with the modification that the total amount of damages shall bear respondents Conrado and Criselda (CRISELDA) Aguilar.
legal interest at six per cent (6%) from the rendition of the decision
dated March 26, 1968. Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong, Jose
SO ORDERED. 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, severeCRITICAL

21
After the burial of their daughter, private respondents demanded Finally, private respondents vigorously maintained that the
upon petitioners the reimbursement of the hospitalization, medical proximate cause of ZHIENETH's death, was petitioners' negligence in
bills and wake and funeral expenses 6 which they had incurred. failing to institute measures to have the counter permanently
Petitioners refused to pay. Consequently, private respondents filed a nailed.
complaint for damages, docketed as Civil Case No. 7119 wherein
they sought the payment of P157,522.86 for actual damages, On the other hand, petitioners argued that private respondents
P300,000 for moral damages, P20,000 for attorney's fees and an raised purely factual issues which could no longer be disturbed. They
unspecified amount for loss of income and exemplary damages. explained that ZHIENETH's death while unfortunate and tragic, was
an accident for which neither CRISELDA nor even ZHIENETH could
In their answer with counterclaim, petitioners denied any liability for entirely be held faultless and blameless. Further, petitioners
the injuries and consequent death of ZHIENETH. They claimed that adverted to the trial court's rejection of Gonzales' testimony as
CRISELDA was negligent in exercising care and diligence over her unworthy of credence.
daughter by allowing her to freely roam around in a store filled with
glassware and appliances. ZHIENETH too, was guilty of contributory As to private respondent's claim that the counter should have been
negligence since she climbed the counter, triggering its eventual nailed to the ground, petitioners justified that it was not necessary.
collapse on her. Petitioners also emphasized that the counter was The counter had been in existence for several years without any
made of sturdy wood with a strong support; it never fell nor prior accident and was deliberately placed at a corner to avoid such
collapsed for the past fifteen years since its construction. accidents. Truth to tell, they acted without fault or negligence for
they had exercised due diligence on the matter. In fact, the criminal
Additionally, petitioner Jarco Marketing Corporation maintained case 10 for homicide through simple negligence filed by private
that it observed the diligence of a good father of a family in the respondents against the individual petitioners was dismissed; a
selection, supervision and control of its employees. The other verdict of acquittal was rendered in their favor.
petitioners likewise raised due care and diligence in the
performance of their duties and countered that the complaint was The Court of Appeals, however, decided in favor of private
malicious for which they suffered besmirched reputation and mental respondents and reversed the appealed judgment. It found that
anguish. They sought the dismissal of the complaint and an award of petitioners were negligent in maintaining a structurally dangerous
moral and exemplary damages and attorney's fees in their favor. 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
In its decision 7 the trial court dismissed the complaint and portion was neither evenly distributed nor supported by its narrow
counterclaim after finding that the preponderance of the evidence base. Thus, the counter was defective, unstable and dangerous; a
favored petitioners. It ruled that the proximate cause of the fall of downward pressure on the overhanging portion or a push from the
the counter on ZHIENETH was her act of clinging to it. It believed front could cause the counter to fall. Two former employees of
petitioners' witnesses who testified that ZHIENETH clung to the petitioners had already previously brought to the attention of the
counter, afterwhich the structure and the girl fell with the structure management the danger the counter could cause. But the latter
falling on top of her, pinning her stomach. In contrast, none of ignored their concern. The Court of Appeals faulted the petitioners
private respondents' witnesses testified on how the counter fell. The for this omission, and concluded that the incident that befell
trial court also held that CRISELDA's negligence contributed to ZHIENETH could have been avoided had petitioners repaired the
ZHIENETH's accident. defective counter. It was inconsequential that the counter had been
in use for some time without a prior incident.
In absolving petitioners from any liability, the trial court reasoned
that the counter was situated at the end or corner of the 2nd floor The Court of Appeals declared that ZHIENETH, who was below seven
as a precautionary measure hence, it could not be considered as an (7) years old at the time of the incident, was absolutely incapable of
attractive nuisance. 8 The counter was higher than ZHIENETH. It has negligence or other tort. It reasoned that since a child under nine (9)
been in existence for fifteen years. Its structure was safe and well- years could not be held liable even for an intentional wrong, then
balanced. ZHIENETH, therefore, had no business climbing on and the six-year old ZHIENETH could not be made to account for a mere
clinging to it. mischief or reckless act. It also absolved CRISELDA of any negligence,
finding nothing wrong or out of the ordinary in momentarily
Private respondents appealed the decision, attributing as errors of allowing ZHIENETH to walk while she signed the document at the
the trial court its findings that: (1) the proximate cause of the fall of nearby counter.
the counter was ZHIENETH's misbehavior; (2) CRISELDA was
negligent in her care of ZHIENETH; (3) petitioners were not negligent The Court of Appeals also rejected the testimonies of the witnesses
in the maintenance of the counter; and (4) petitioners were not of petitioners. It found them biased and prejudiced. It instead gave
liable for the death of ZHIENETH. credit to the testimony of disinterested witness Gonzales. The Court
of Appeals then awarded P99,420.86 as actual damages, the amount
Further, private respondents asserted that ZHIENETH should be representing the hospitalization expenses incurred by private
entitled to the conclusive presumption that a child below nine (9) respondents as evidenced by the hospital's statement of
years is incapable of contributory negligence. And even if ZHIENETH, account. 12 It denied an award for funeral expenses for lack of proof
at six (6) years old, was already capable of contributory negligence, to substantiate the same. Instead, a compensatory damage of
still it was physically impossible for her to have propped herself on P50,000 was awarded for the death of ZHIENETH.
the counter. She had a small frame (four feet high and seventy
pounds) and the counter was much higher and heavier than she We quote the dispositive portion of the assailed decision, 13 thus:
was. Also, the testimony of one of the store's former employees,
Gerardo Gonzales, who accompanied ZHIENETH when she was WHEREFORE, premises considered, the judgment of the
brought to the emergency room of the Makati Medical Center belied lower court is SET ASIDE and another one is entered
petitioners' theory that ZHIENETH climbed the counter. Gonzales against [petitioners], ordering them to pay jointly and
claimed that when ZHIENETH was asked by the doctor what she did, severally unto [private respondents] the following:
ZHIENETH replied, "[N]othing, I did not come near the counter and
the counter just fell on me." 9 Accordingly, Gonzales' testimony on
1. P50,000.00 by way of compensatory damages
ZHIENETH's spontaneous declaration should not only be considered
for the death of Zhieneth Aguilar, with legal
as part of res gestae but also accorded credit.
interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for
Moreover, negligence could not be imputed to CRISELDA for it was hospitalization expenses incurred; with legal
reasonable for her to have let go of ZHIENETH at the precise interest (6% p.a.) from 27 April 1984;
moment that she was signing the credit card slip. 3. P100,000.00 as moral and exemplary
damages;

22
 4. P20,000.00 in the concept of attorney's fees; which an ordinarily prudent person would have used in the same
and situation? If not, then he is guilty of negligence. 21
5. Costs.
Private respondents sought a reconsideration of the decision but the We rule that the tragedy which befell ZHIENETH was no accident and
same was denied in the Court of Appeals' resolution 14 of 16 July that ZHIENETH's death could only be attributed to negligence.
1997.
We quote the testimony of Gerardo Gonzales who was at the scene
Petitioners now seek the reversal of the Court of Appeals' decision of the incident and accompanied CRISELDA and ZHIENETH to the
and the reinstatement of the judgment of the trial court. Petitioners hospital:
primarily argue that the Court of Appeals erred in disregarding the
factual findings and conclusions of the trial court. They stress that
Q While at the Makati Medical Center, did you hear or
since the action was based on tort, any finding of negligence on the
notice anything while the child was being treated?
part of the private respondents would necessarily negate their claim
A At the emergency room we were all surrounding the
for damages, where said negligence was the proximate cause of the
child. And when the doctor asked the child "what did you
injury sustained. The injury in the instant case was the death of
do," the child said "nothing, I did not come near the
ZHIENETH. The proximate cause was ZHIENETH's act of clinging to
counter and the counter just fell on me."
the counter. This act in turn caused the counter to fall on her. This
Q (COURT TO ATTY. BELTRAN)
and CRISELDA's contributory negligence, through her failure to
You want the words in Tagalog to be translated?
provide the proper care and attention to her child while inside the
ATTY. BELTRAN
store, nullified private respondents' claim for damages. It is also for
Yes, your Honor.
these reasons that parents are made accountable for the damage or
COURT
injury inflicted on others by their minor children. Under these
Granted. Intercalate "wala po, hindi po ako lumapit doon.
circumstances, petitioners could not be held responsible for the
Basta bumagsak." 22
accident that befell ZHIENETH.

This testimony of Gonzales pertaining to ZHIENETH's statement

Petitioners also assail the credibility of Gonzales who was already
formed (and should be admitted as) part of the res gestae under
separated from Syvel's at the time he testified; hence, his testimony
Section 42, Rule 130 of the Rules of Court, thus:
might have been tarnished by ill-feelings against them.

Part of res gestae. Statements made by a person while a

For their part, private respondents principally reiterated their
startling occurrence is taking place or immediately prior
arguments that neither ZHIENETH nor CRISELDA was negligent at
or subsequent thereto with respect to the
any time while inside the store; the findings and conclusions of the
circumstances thereof, may be given in evidence as part
Court of Appeals are substantiated by the evidence on record; the
of the res gestae. So, also, statements accompanying an
testimony of Gonzales, who heard ZHIENETH comment on the
equivocal act material to the issue, and giving it a legal
incident while she was in the hospital's emergency room should
significance, may be received as part of the res gestae.
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 It is axiomatic that matters relating to declarations of pain or
of the gruesome events. 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
We deny the petition.
uttered under the influence of a startling event before the declarant
had the time to think and concoct a falsehood as witnessed by the
The two issues to be resolved are: (1) whether the death of person who testified in court. Under the circumstances thus
ZHIENETH was accidental or attributable to negligence; and (2) in described, it is unthinkable for ZHIENETH, a child of such tender age
case of a finding of negligence, whether the same was attributable and in extreme pain, to have lied to a doctor whom she trusted with
to private respondents for maintaining a defective counter or to her life. We therefore accord credence to Gonzales' testimony on
CRISELDA and ZHIENETH for failing to exercise due and reasonable the matter, i.e., ZHIENETH performed no act that facilitated her
care while inside the store premises. tragic death. Sadly, petitioners did, through their negligence or
omission to secure or make stable the counter's base.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. 15 It is "a fortuitous Gonzales' earlier testimony on petitioners' insistence to keep and
circumstance, event or happening; an event happening without any maintain the structurally unstable gift-wrapping counter proved
human agency, or if happening wholly or partly through human their negligence, thus:
agency, an event which under the circumstances is unusual or
unexpected by the person to whom it happens." 16
Q When you assumed the position as gift wrapper at the
second floor, will you please describe the gift wrapping
On the other hand, negligence is the omission to do something counter, were you able to examine?
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the
A Because every morning before I start working I used to
doing of something which a prudent and reasonable man would not
clean that counter and since not nailed and it was only
do. 17 Negligence is "the failure to observe, for the protection of the
standing on the floor, it was shaky.
interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such
other person suffers injury." 18 xxx xxx xxx

Accident and negligence are intrinsically contradictory; one cannot Q Will you please describe the counter at 5:00 o'clock [sic]
exist with the other. Accident occurs when the person concerned is in the afternoon on [sic] May 9 1983?
exercising ordinary care, which is not caused by fault of any person
and which could not have been prevented by any means suggested A At that hour on May 9, 1983, that counter was standing
by common prudence. 19 beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can
The test in determining the existence of negligence is enunciated in collapse at anytime, since the top is heavy.
the landmark case of Plicart v. Smith, 20 thus: Did the defendant in
doing the alleged negligent act use that reasonable care and caution xxx xxx xxx

23
 Q And what did you do? offered in court — was but mere speculation and deserved scant
consideration.
A I informed Mr. Maat about that counter which is [sic]
shaky and since Mr. Maat is fond of putting display It is settled that when the issue concerns the credibility of witnesses,
decorations on tables, he even told me that I would put the appellate courts will not as a general rule disturb the findings of
some decorations. But since I told him that it not [sic] the trial court, which is in a better position to determine the same.
nailed and it is shaky he told me "better inform also the The trial court has the distinct advantage of actually hearing the
company about it." And since the company did not do testimony of and observing the deportment of the
anything about the counter, so I also did not do anything witnesses. 26 However, the rule admits of exceptions such as when
about the counter. 24 [Emphasis supplied] its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance
Ramon Guevarra, another former employee, corroborated the which could affect the result of the case. 27 In the instant case,
testimony of Gonzales, thus: petitioners failed to bring their claim within the exception.

Q Will you please described [sic] to the honorable Court Anent the negligence imputed to ZHIENETH, we apply the conclusive
the counter where you were assigned in January 1983? 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:
xxx xxx xxx

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

A That counter assigned to me was when my supervisor
conclusively presumed to have acted without discernment,
ordered me to carry that counter to another place. I told
and is, on that account, exempt from criminal liability. The
him that the counter needs nailing and it has to be nailed
same presumption and a like exemption from criminal
because it might cause injury or accident to another since
liability obtains in a case of a person over nine and under
it was shaky.
fifteen years of age, unless it is shown that he has acted
with discernment. Since negligence may be a felony and
Q When that gift wrapping counter was transferred at the a quasi-delict and required discernment as a condition of
second floor on February 12, 1983, will you please liability, either criminal or civil, a child under nine years of
describe that to the honorable Court? age is, by analogy, conclusively presumed to be incapable
of negligence; and that the presumption of lack of
A I told her that the counter wrapper [sic] is really in good discernment or incapacity for negligence in the case of a
[sic] condition; it was shaky. I told her that we had to nail child over nine but under fifteen years of age is a
it. rebuttable one, under our law. The rule, therefore, is that
a child under nine years of age must be conclusively
Q When you said she, to whom are you referring to [sic]? presumed incapable of contributory negligence as a
matter of law. [Emphasis supplied]

A I am referring to Ms. Panelo, sir.

Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
Q And what was the answer of Ms. Panelo when you told occurred if we accept petitioners' theory that the counter was stable
her that the counter was shaky? 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
A She told me "Why do you have to teach me. You are only counter by both the trial court and Court of Appeals and a scrutiny
my subordinate and you are to teach me?" And she even of the evidence 29 on record reveal otherwise, i.e., it was not durable
got angry at me when I told her that. after all. Shaped like an inverted "L," the counter was heavy, huge,
and its top laden with formica. It protruded towards the customer
xxx xxx xxx waiting area and its base was not secured. 30

Q From February 12, 1983 up to May 9, 1983, what if any, CRISELDA too, should be absolved from any contributory negligence.
did Ms. Panelo or any employee of the management do to Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's
that (sic) 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.
xxx xxx xxx
Further, at the time ZHIENETH was pinned down by the counter, she
was just a foot away from her mother; and the gift-wrapping
Witness: counter was just four meters away from CRISELDA. 32 The time and
distance were both significant. ZHIENETH was near her mother and
None, sir. They never nailed the counter. They only nailed did not loiter as petitioners would want to impress upon us. She
the counter after the accident happened. 25 [Emphasis even admitted to the doctor who treated her at the hospital that she
supplied] did not do anything; the counter just fell on her.

Without doubt, petitioner Panelo and another store supervisor were WHEREFORE, in view of all the foregoing, the instant petition is
personally informed of the danger posed by the unstable counter. DENIED and the challenged decision of the Court of Appeals of 17
Yet, neither initiated any concrete action to remedy the situation June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
nor ensure the safety of the store's employees and patrons as a
reasonable and ordinary prudent man would have done. Thus, as Costs against petitioners.
confronted by the situation petitioners miserably failed to discharge
the due diligence required of a good father of a family.
SO ORDERED.

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

24
 DECISION

AZCUNA, J.:

This petition started with a tort case filed with the Regional Trial
Court of Makati by Timothy Tagorio and his parents, Basilio R.
Tagorio and Herminia Tagorio, docketed as Civil Case No. 91-1389.
The complaint1 alleged that during the school year 1990-1991,
Timothy was a Grade IV student at Marymount School, an academic
institution operated and maintained by Child Learning Center, Inc.
(CLC). In the afternoon of March 5, 1991, between 1 and 2 p.m.,
Timothy entered the boy’s comfort room at the third floor of the
Marymount building to answer the call of nature. He, however,
found himself locked inside and unable to get out. Timothy started
to panic and so he banged and kicked the door and yelled several
times for help. When no help arrived he decided to open the
window to call for help. In the process of opening the window,
Timothy went right through and fell down three stories. Timothy
was hospitalized and given medical treatment for serious multiple
physical injuries.

An action under Article 2176 of the Civil Code was filed by

respondents against the CLC, the members of its Board of Directors,
namely Spouses Edgardo and Sylvia Limon, Alfonso Cruz, Carmelo
Narciso and Luningning Salvador, and the Administrative Officer of
Marymount School, Ricardo Pilao. In its defense,2 CLC maintained
that there was nothing defective about the locking mechanism of
the door and that the fall of Timothy was not due to its fault or
negligence. CLC further maintained that it had exercised the due
care and diligence of a good father of a family to ensure the safety,
well-being and convenience of its students.

After trial, the court a quo found in favor of respondents and

ordered petitioners CLC and Spouses Limon to pay respondents,
jointly and severally, ₱200,253.12 as actual and compensatory
damages, ₱200,000 as moral damages, ₱50,000 as exemplary
damages, ₱100,000 as attorney’s fees and the costs of the suit. The
trial court disregarded the corporate fiction of CLC and held the
Spouses Limon personally liable because they were the ones who
actually managed the affairs of the CLC.

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

On September 28, 2001, the Court of Appeals3 affirmed the

decision in toto. Petitioners elevated the case to this Court under
Rule 45 of the Rules of Court, after their motion for reconsideration
was denied by Resolution of November 23, 2001.4

Petitioners question several factual findings of the trial court, which

were affirmed by the Court of Appeals, namely:5

1. That respondent was allegedly trapped inside the boy’s comfort

room located at the third floor of the school building on March 5,
1991;

2. That respondent allegedly banged and kicked the door of said

comfort room several times to attract attention and that he
allegedly yelled thereat for help which never came;

3. That respondent was allegedly forced to open the window of said

comfort room to seek help;

4. That the lock set installed at the boy’s comfort room located in
the third floor of the school building on March 5, 1991 was allegedly
defective and that the same lock set was involved in previous
incidents of alleged malfunctioning;
G.R. No. 150920 November 25, 2005

5. That petitioner Child Learning Center, Inc. allegedly failed to

CHILD LEARNING CENTER, INC. and SPOUSES EDGARDO L. LIMON
install iron grills in the window of the boy’s comfort room at the
and SYLVIA S. LIMON, Petitioners,
third floor of the school building;
vs.
TIMOTHY TAGARIO, assisted by his parents BASILIO TAGORIO and
HERMINIA TAGORIO, Respondents.
25
6. That petitioner Child Learning Center, Inc. allegedly failed to The Court of Appeals held that there was no reason to disturb the
exercise the due care of a good father of a family in the selection factual assessment:10
and supervision of its employees;
After having perused the records, We fail to see any indication of
7. That the proximate cause of respondent’s accident was allegedly whim or arbitrariness on the part of the trial magistrate in his
not due to his own contributory negligence; assessment of the facts of the case. That said, We deem it not to be
within Our business to recast the factual conclusions reached by the
8. That there was an alleged basis to apply the legal principle of court below.
"piercing the veil of corporate entity" in resolving the issue of
alleged liability of petitioners Edgardo L. Limon and Sylvia S. Limon; Petitioners would make much of the point that no direct evidence
was presented to prove that the door knob was indeed defective on
9. That there was alleged basis for petitioners to pay respondent the date in question.
actual, moral and exemplary damages, plus attorney’s fees;
The fact, however, that Timothy fell out through the window shows
10. That there was an alleged basis in not awarding petitioners’ that the door could not be opened from the inside. That sufficiently
prayer for moral and exemplary damages, including attorney’s fees. points to the fact that something was wrong with the door, if not the
door knob, under the principle of res ipsa loquitor. The doctrine
of res ipsa loquitor applies where (1) the accident was of such
Generally, factual findings of the trial court, affirmed by the Court of
character as to warrant an inference that it would not have
Appeals, are final and conclusive and may not be reviewed on
happened except for the defendant’s negligence; (2) the accident
appeal. The established exceptions are: (1) when the inference
must have been caused by an agency or instrumentality within the
made is manifestly mistaken, absurd or impossible; (2) when there is
exclusive management or control of the person charged with the
grave abuse of discretion; (3) when the findings are grounded
negligence complained of; and (3) the accident must not have been
entirely on speculations, surmises or conjectures; (4) when the
due to any voluntary action or contribution on the part of the
judgment of the Court of Appeals is based on misapprehension of
person injured.11 Petitioners are clearly answerable for failure to see
facts; (5) when the findings of fact are conflicting; (6) when the
to it that the doors of their school toilets are at all times in working
Court of Appeals, in making its findings, went beyond the issues of
condition. The fact that a student had to go through the window,
the case and the same is contrary to the admissions of both
instead of the door, shows that something was wrong with the door.
appellant and appellee; (7) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (8)
when the Court of Appeals manifestly overlooked certain relevant As to the absence of grills on the window, petitioners contend that
facts not disputed by the parties and which, if properly considered, there was no such requirement under the Building Code.
would justify a different conclusion; and (9) when the findings of fact Nevertheless, the fact is that such window, as petitioners
of the Court of Appeals are premised on the absence of evidence themselves point out, was approximately 1.5 meters from the floor,
and are contradicted by the evidence on record.6 so that it was within reach of a student who finds the regular exit,
the door, not functioning. Petitioners, with the due diligence of a
good father of the family, should have anticipated that a student,
On the basis of the records of this case, this Court finds no
locked in the toilet by a non-working door, would attempt to use the
justification to reverse the factual findings and consider this case as
window to call for help or even to get out. Considering all the
an exception to the general rule.
circumstances, therefore, there is sufficient basis to sustain a finding
of liability on petitioners’ part.
In every tort case filed under Article 2176 of the Civil Code, plaintiff
has to prove by a preponderance of evidence: (1) the damages
Petitioners’ argument that CLC exercised the due diligence of a good
suffered by the plaintiff; (2) the fault or negligence of the defendant
father of a family in the selection and supervision of its employees is
or some other person for whose act he must respond; and (3) the
not decisive. Due diligence in the selection and supervision of
connection of cause and effect between the fault or negligence and
employees is applicable where the employer is being held
the damages incurred.7
responsible for the acts or omissions of others under Article 2180 of
the Civil Code.12 In this case, CLC’s liability is under Article 2176 of
Fault, in general, signifies a voluntary act or omission which causes the Civil Code, premised on the fact of its own negligence in not
damage to the right of another giving rise to an obligation on the ensuring that all its doors are properly maintained.
part of the actor to repair such damage. Negligence is the failure to
observe for the protection of the interest of another person that
Our pronouncement that Timothy climbed out of the window
degree of care, precaution and vigilance which the circumstances
because he could not get out using the door, negates petitioners’
justly demand. Fault requires the execution of a positive act which
other contention that the proximate cause of the accident was
causes damage to another while negligence consists of the omission
Timothy’s own negligence. The injuries he sustained from the fall
to do acts which result in damage to another.8
were the product of a natural and continuous sequence, unbroken
by any intervening cause, that originated from CLC’s own
In this tort case, respondents contend that CLC failed to provide negligence.
precautionary measures to avoid harm and injury to its students in
two instances: (1) failure to fix a defective door knob despite having
We, however, agree with petitioners that there was no basis to
been notified of the problem; and (2) failure to install safety grills on
pierce CLC’s separate corporate personality. To disregard the
the window where Timothy fell from.
corporate existence, the plaintiff must prove: (1) Control by the
individual owners, not mere majority or complete stock ownership,
The trial court found that the lock was defective on March 5, 1991:9 resulting in complete domination not only of finances but of policy
and business practice in respect to a transaction so that the
The door knob was defective. After the incident of March 5, 1991, corporate entity as to this transaction had at the time no separate
said door knob was taken off the door of the toilet where Timothy mind, will or existence of its own; (2) such control must have been
was in. The architect who testified during the trial declared that used by the defendant to commit fraud or wrong, to perpetuate the
although there were standard specifications for door knobs for violation of a statutory or other positive legal duty, or a dishonest
comfort room[s], and he designed them according to that and unjust act in contravention of the plaintiff’s legal right; and (3)
requirement, he did not investigate whether the door knob specified the control and breach of duty must proximately cause the injury or
in his plans during the construction [was] actually put in place. This unjust loss complained of. The absence of these elements prevents
is so because he did not verify whether the door knob he specified piercing the corporate veil.13 The evidence on record fails to show
w[as] actually put in place at the particular comfort room where that these elements are present, especially given the fact that
Timothy was barred from getting outside. (TSN, pp. 19-20, plaintiffs’ complaint had pleaded that CLC is a corporation duly
December 8, 1994). organized and existing under the laws of the Philippines.

26
On 9th and 10th points raised concerning the award of damages, the Upon Dr. Ilao-Oreta’s advice, Eva Marie agreed to undergo a
resolution would rest on factual determinations by the trial court, laparoscopic procedure whereby a laparascope would be inserted
affirmed by the Court of Appeals, and no legal issue warrants our through the patient’s abdominal wall to get a direct view of her
intervention. internal reproductive organ in order to determine the real cause of
her infertility.
WHEREFORE, the petition is partly granted and the Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 50961 dated The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be
September 28, 2001 and November 23, 2001, respectively, performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva
are MODIFIED in that petitioners Spouses Edgardo and Sylvia Limon Marie, accompanied by her husband Noel, checked in at the St.
are absolved from personal liability. The Decision and Resolution Luke’s Medical Center and underwent pre-operative procedures
are AFFIRMED in all other respects. No pronouncement as to costs. including the administration of intravenous fluid and enema.

SO ORDERED. Dr. Ilao-Oreta did not arrive at the scheduled time for the
procedure, however, and no prior notice of its cancellation was
received. It turned out that the doctor was on a return flight from
Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.

On May 18, 1999, the Ronquillo spouses filed a complaint1 against

Dr. Ilao-Oreta and the St. Luke’s Medical Center for breach of
professional and service contract and for damages before the
Regional Trial Court (RTC) of Batangas City. They prayed for the
award of actual damages including alleged loss of income of Noel
while accompanying his wife to the hospital, moral damages,
exemplary damages, the costs of litigation, attorney’s fees, and
other available reliefs and remedies.2

In her Answer,3 Dr. Ilao-Oreta gave her side of the case as follows:
She went on a honeymoon to Hawaii and was scheduled to leave
Hawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip
from Hawaii to Manila would take about 12 hours, inclusive of a
stop-over at the Narita Airport in Japan, she estimated that she
would arrive in Manila in the early morning of April 5, 1999. She thus
believed in utmost good faith that she would be back in Manila in
time for the scheduled conduct of the laparoscopic procedure. She
failed to consider the time difference between Hawaii and the
Philippines, however.

In its Answer,4 the St. Luke’s Medical Center contended that the
spouses have no cause of action against it since it performed the
pre-operative procedures without delay, and any cause of action
they have would be against Dr. Ilao-Oreta.

By Decision5 of March 9, 2001, Branch 84 of the Batangas RTC,

finding that the failure of the doctor to arrive on time was not
intentional, awarded Eva Marie only actual damages in the total
amount of ₱9,939 and costs of suit. It found no adequate proof that
Noel had been deprived of any job contract while attending to his
wife in the hospital.

On appeal by the spouses, the Court of Appeals, by Decision6 of April

21, 2006, finding Dr. Ilao-Oreta grossly negligent,7 modified the trial
court’s decision as follows:

WHEREFORE, the trial Court’s decision dated March 9, 2001 is

affirmed, subject to the modification that the amount of actual
damages, for which both defendants-appellees are jointly and
G.R. No. 172406 October 11, 2007 severally liable to plaintiffs-appellants, is increased to P16,069.40.
Furthermore, defendant-appellee Dr. Ilao-Oreta is also held liable to
CONCEPCION ILAO-ORETA, Petitioner, pay plaintiff-appellants the following:
vs.SPOUSES EVA MARIE and BENEDICTO NOEL
RONQUILLO, Respondents. (a) P50,000.00 as moral damages;

DECISION (b) P25,000.00 as exemplary damages; and

CARPIO MORALES, J.: (c) P20,000.00 as attorney’s fees.

Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel SO ORDERED.8 (Underscoring supplied)
Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses),
had not been blessed with a child despite several years of marriage.
Hence, the present Petition for Review9 of Dr. Ilao-Oreta raising the
They thus consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-
following arguments:
Oreta), an obstetrician-gynecologist-consultant at the St. Luke’s
Medical Center where she was, at the time material to the case, the
chief of the Reproductive Endocrinology and Infertility Section. The court a quo erred in finding petitioner to have acted with gross
negligence and awarding moral damages to respondents.10

27
The court a quo erred in awarding Exemplary Damages to A: I could hear on the background that Mrs. Ronquillo was shouting
respondents.11 angrily that she didn’t want to talk to me, and that she didn’t want
re-scheduling of the surgery . . .
The court a quo [erred] in awarding Attorney’s Fees to
respondents.12 ATTY LONTOK: May we move, your Honor, for the striking out of the
answer, this is purely hearsay.
The court a quo erred in increasing the award of actual damages in
favor of respondents.13 COURT: Remain on the record.

"Gross negligence" implies a want or absence of or failure to WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me "I’m
exercise slight care or diligence, or the entire absence of care. It sorry, Dra., we cannot re-schedule the surgery."17 (Underscoring
evinces a thoughtless disregard of consequences without exerting supplied)
any effort to avoid them.14 It is characterized by want of even slight
care, acting or omitting to act in a situation where there is a duty to Noel admitted that indeed Dr. Ilao-Oreta called him up after she
act, not inadvertently but willfully and intentionally with a conscious arrived in Manila as related by her.18
indifference to consequences in so far as other persons may be
affected.15
The evidence then shows that Dr. Ilao-Oreta, who had traveled more
than twice to the United States where she obtained a fellowship in
The records show that before leaving for Hawaii, Dr. Ilao-Oreta left Reproductive Endocrinology and Infertility was indeed negligent
an admitting order with her secretary for one of the spouses to pick when she scheduled to perform professional service at 2:00 p.m. on
up, apprised Eva Marie of the necessary preparations for the April 5, 1999 without considering the time difference between the
procedure, and instructed the hospital staff to perform pre- Philippines and Hawaii.
operative treatments.16 These acts of the doctor reflect an earnest
intention to perform the procedure on the day and time scheduled.
The doctor’s act did not, however, reflect gross negligence as
defined above. Her argument that
The records also show that on realizing that she missed the
scheduled procedure, Dr. Ilao-Oreta, upon arrival in Manila,
Although petitioner failed to take into consideration the time
immediately sought to rectify the same, thus:
difference between the Philippines and Hawaii, the situation then
did not present any clear and apparent harm or injury that even a
[ATTY SINJAN] Q: So, can you tell us the reason why you missed that careless person may perceive. Unlike in situations where the
operation? Supreme Court had found gross negligence to exist, petitioner could
not have been conscious of any foreseeable danger that may occur
[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked since she actually believed that she would make it to the operation
at my ticket and so I was to leave Hawaii on April 4 at around 4:00 that was elective in nature, the only purpose of which was to
o’clock in the afternoon, so I was computing 12 hours of travel determine the real cause of infertility and not to treat and cure a life
including stop-over, then probably I would be in Manila early threatening disease. Thus, in merely fixing the date of her
morning of April 5, then I have so much time and I can easily do the appointment with respondent Eva Marie Ronquillo, petitioner was
case at 2:00 o’clock, you know it skipped my mind the change in not in the pursuit or performance of conduct which any ordinary
time. person may deem to probably and naturally result in
injury,19 (Underscoring in original)
Q: So when you arrived at 10:00 [PM] in Manila, what did you do?
thus persuades.
A: I called immediately the hospital and I talked with the nurses, I
asked about the patient, Mrs. Ronquillo, and they told me that she It bears noting that when she was scheduling the date of her
has already left at around 7:00. performance of the procedure, Dr. Ilao-Oreta had just gotten
married and was preparing for her honeymoon,20 and it is of
Q: And after calling the hospital, what happened? common human knowledge that excitement attends its
preparations. Her negligence could then be partly attributed to
human frailty which rules out its characterization as gross.
A: I wanted to call the plaintiffs, but I didn’t have their number at
that time, so in the morning I went to my office early at 8:00 and
looked for her chart, because her telephone number was written in The doctor’s negligence not being gross, the spouses are not entitled
the chart. So, I called them right away. to recover moral damages.

Q: Were you able to contact them? Neither are the spouses entitled to recover exemplary damages in
the absence of a showing that Dr. Ilao-Oreta acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner,21 nor to
A: I was able to reach Mr. Ronquillo.
award of attorney’s fees as, contrary to the finding of the Court of
Appeals that the spouses "were compelled to litigate and incur
Q: In the course of your conversation, what did you tell Mr. expenses to protect their interest,"22 the records show that they did
Ronquillo? not exert enough efforts to settle the matter before going to court.
Eva Marie herself testified:
A: I apologized to him, I said I was sorry about the time that I missed
the surgery, and I told him that I can do the case right that same day ATTY. SINJIAN:
without Mrs. Ronquillo having to undergo another [b]arium enema.
Q: Isn’t it true that before instituting this present case, you
Q: What else did you tell him, if any? did not make any demand on Dr. Ilao-Oreta regarding the
claims which you have allegedly incurred, because of the
A: I asked him whether I can talk with Mrs. Ronquillo because I failed laparoscopic surgery operation?
wanted to apologize to her personally. A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St.
Luke’s . . .
Q: And what did he say? Q: But did you demand?
A: No, I did not demand because…
ATTY. SINJIAN: That will be all, your Honor.
ATTY. LONTOK: The witness is still explaining.

28
 WITNESS: I’m explaining first. Dr. Augusto Reyes told me
(5,000.00)
that he will hold the meeting for me and Dr. Oreta to
settle things and reimburse all the money that I spent from
the hospital, and he even suggested Dr. Oreta to 4/5/19 SECO 02848 UNUSED 043953 (65.55)
personally talk to me. 99 ND 93 MED 4
ATTY. SINJIAN: FLOO HINOX
Q: So it was to Dr. Augusto Reyes that you talked? R 500 MG
A: Yes. CAP
Q: But you did not demand anything or write to Dr. Oreta?
A: No. SECO 02848 UNUSED 043989 (62.25)
Q: Before instituting this case? ND 94 MED 3
A: No.23 (Underscoring supplied) FLOO PHENERG
R AN 2 ML
Finally, Dr. Ilao-Oreta’s prayer for the reduction of actual damages is
well-taken. Article 2201 of the Civil Code provides: ______
50MG (127.80)
__
In contracts and quasi-contracts, the damages for which the obligor
who acted in good faith is liable shall be those which are the natural (2,711.3
and probable consequences of the breach of the obligation, and BALANCE DUE 0)30
which the parties have foreseen or could have reasonably foreseen =======
at the time the obligation was constituted. ===

In fixing the amount of actual damages, the Court of Appeals and the
trial court included expenses which the spouses incurred prior to As extrapolated from the above-quoted entries in the Statement of
April 5, 1999 when the breach of contract complained of Account, ₱2,288.70 (the gross hospital charges of ₱2,416.50 less the
occurred.24 The Court of Appeals also included the alleged ₱300 unused medicine in the amount of ₱127.80) was debited from the
spent on fuel consumption from the spouses’ residence at San ₱5,000 deposit31 to thus leave a balance of the deposit in the
Pascual, Batangas to the St. Luke’s Medical Center in Quezon City amount of ₱2,711.30, which the trial court erroneously
and the alleged ₱500 spent on food in the hospital canteen, both of denominated as "confinement fee." The remaining balance of
which are unsubstantiated by independent or competent ₱2,711.30 was the amount refundable to the spouses.
proof.25 The only piece of documentary evidence supporting the
food and fuel expenses is an unsigned listing.26 As the fuel and food Following Eastern Shipping Lines, Inc. v. Court of Appeals,32 this
expenses are not adequately substantiated, they cannot be included Court awards interest on the actual damages to be paid by Dr. Ilao-
in the computation of the amount of actual damages. So Premiere Oreta at the rate of 6% per annum from the time of the filing of the
Development Bank v. Court of Appeals27 instructs: complaint on May 18, 1999, and at 12% per annum from the finality
of this judgment until its satisfaction.
In the instant case, the actual damages were proven through the
sole testimony of Themistocles Ruguero, the vice president for WHEREFORE, the petition is GRANTED. The decision appealed from
administration of Panacor. In his testimony, the witness affirmed is MODIFIED in that
that Panacor incurred losses, specifically, in terms of training and
seminars, leasehold acquisition, procurement of vehicles and office 1) the award to respondents-spouses Noel and Eva Marie
equipment without, however, adducing receipts to substantiate the Ronquillo of actual damages is REDUCED to ₱2,288.70, to
same. The documentary evidence marked as Exhibit "W," which was bear interest at a rate of 6% per annum from the time of
an ordinary private writing allegedly itemizing the capital the filing of the complaint on May 18, 1999 and, upon
expenditures and losses from the failed operation of Panacor, was finality of this judgment, at the rate of 12% per
not testified to by any witness to ascertain the veracity of its annum until satisfaction; and
content. Although the lower court fixed the sum of P4,520,000.00 as
the total expenditures incurred by Panacor, it failed to show how
2) The award of moral and exemplary damages and
and in what manner the same were substantiated by the claimant
attorney’s fees is DELETED.
with reasonable certainty. Hence, the claim for actual damages
should be received with extreme caution since it is only based on
bare assertion without support from independent evidence. SO ORDERED.
Premiere’s failure to prove actual expenditure consequently
conduces to a failure of its claim. In determining actual damages, the
court cannot rely on mere assertions, speculations, conjectures or
guesswork but must depend on competent proof and on the best
evidence obtainable regarding the actual amount of
loss.28 (Underscoring supplied)

The list of expenses cannot replace receipts when they should have
been issued as a matter of course in business transactions 29 as in the
case of purchase of gasoline and of food.1âwphi1

The documented claim for hospital and medical expenses of the

spouses is detailed in the Statement of Account issued by the
hospital, the pertinent entries of which read:
G.R. No. L-6870 May 24, 1954
xxxx
ELENA AMEDO, plaintiff-appellant,
vs.RIO Y OLABARRIETA, INC., defendant-appellee.
GROSS HOSPITAL CHARGES 2,416.50

4/5/1999 1699460 DEPOSIT–OFFICIAL Cesareo Perez and Meliton C. Parducho for appellant.
M. Almario and Jose T. Lajom for appellee.
RECEIPT (5,000.00)
CONCEPCION, J.:

29
This case was instituted on October 18, 1950. In her original Admittedly, the death of Filomeno Managuit was due to an accident.
complaint, plaintiff Elena Amedo sought to collect from defendant The point in issue is whether such accident occurred under the three
Rio y Olabarrieta, Inc., the sum of P2,038.40 as compensation for the (3) conditions aforementioned. Referring to the first two
death of her son, Filomeno Managuit, who worked for the requirements, we said, in Afable et al. vs. Singer Sewing Machine Co.
defendant as a seaman of the M/S Pilar II. The main allegation of (58 Phil., 39, 42):
said original complaint was:
The phrase "due to and in the pursuance of" used in
That on May 27, 1949 at about 11:30 o'clock in the section 2 of Act No. 3428 was changed in Act No. 3812 to
morning, while the deceased Filomeno Managuit was on "arising out of and in the course of". Discussing this
board M/S "Pilar II" as such seaman, he jumped into the phrase, the Supreme Court of Illinois in the case of Muller
water to retrieve a 2-peso bill belonging to him, and as a Construction Co. vs. Industrial Board (283 Ill., 148; 118 N.
consequence of which, he was drowned. E., 1028; 1 W. C. L., 943), said:

On November 1, 1950, defendant filed a motion to dismiss upon the "The words "arising out of" refer to the origin or cause of
ground that said allegation does not show that the death of the accident and are descriptive of its character, while the
plaintiff's son was due to an "accident arising out of and in the words `in the course of' refer to the time, place, and
course of employment," and that, accordingly, the complaint does circumstances under which the accident takes place.
not state a cause of action. This motion was granted and the (Fitzgerald vs. Clarke & Sons, 1 B.W.C.C., 197 Dietzen
complaint dismissed, accordingly, by an order dated December 11, Co. vs. Industrial Board, 279 Ill. 11; 116 N.E. 684.) By the
1950. A motion for the reconsideration of this order having been use of these words it was not the intention of the
denied, plaintiff appealed to this Court, which, on October 30, 1952, legislature to make the employer an insurer against all
rendered a decision affirming the order appealed from, but "without accidental injuries which might happen to an employee
prejudice to the right of the plaintiff, the mother of the deceased while in the course of the employment, but only for such
seaman, to file an amended complaint within fifteen (15) days from injuries arising from or growing out of the risks peculiar to
notice by the clerk of the trial court that the record of this case had the nature of work in the scope of the workmen's
been remanded to and received by the trial court, without costs." employment or incidental to such employment, and
Hence, on December 22, 1952, plaintiff filed an amended complaint, accidents in which it is possible to trace the injury to some
paragraph 4 of which alleges: risk or hazard to which the employee is exposed ina special
degree by reason of such employment. Risks to which all
That on May 27, 1949, at or about 11:30 o'clock in the persons similarly situated are equally exposed and not
morning while the said Filomeno Managuit was in the traceable in some special degree to the particular
course of his employment, performing his duties as such employment are excluded."
ordinary seaman on defendant's M/S "Pilar II", which was
anchored then about 1 1/2 miles from the seashore of Adopting a liberal view, it may be conceded that the death of
Arceli Dumarang, Palawan, his two-peso bill was blown by Filomeno took place "in the course of" his employment, in that it
the breeze into the sea and in his effort to retrieve the happened at the "time" when, and at the "place" where-according
same from the waters he was drowned. to the amended complaint-he was working. However, the accident
which produced this tragic result did not "arise out of" his
A motion to dismiss this amended complaint upon the ground of employment. Indeed, the latter was not "the origin or cause of said
failure to state a cause of action was granted and the case, accident. The blowing of his 2-peso bill may have grown out of, or
consequently, dismissed without costs. Are consideration of this arisen from, his employment. It was the result of a risk peculiar to
action having been denied, the case is once again before us on his work as a seaman or incidental to such work. But, his death was
appeal. the consequence of his decision to jump into the water to retrieve
said bill. The hazardous nature of this act was not due specially to
the nature of his employment. It was a risk to which any person on
Plaintiff's claim is admittedly predicated upon Act No. 3428,
board the M/S Pilar II, such as a passenger thereof or an ordinary
otherwise known as the Workmen's Compensation Act. The same
visitor, would have been exposed had he, likewise, jumped into the
was amended, first, by Act No. 3812, then, by Commonwealth Act
sea, as Filomeno had.
No. 210 and, lastly, by Republic Act 772. The latter, however, took
effect on June 20,1952 or after the accident upon which plaintiff
bases her cause of action. Hence, in the consideration of this case, Irrespective of whether or not the accident in question arose out of,
we shall disregard the provisions of said Republic Act No. 772. or took place in the course of the employment, was it caused by his
Sections 2 and 4 of Act No. 2428, prior to its latest amendment, "notorious negligence"? The phrase "notorious negligence" has been
read: held to be tantamount to "gross negligence", which, in turn, has
been defined as follows:
Sec. 2. Grounds for compensation. — When any employee
receives a personal injury from any accident arising out of Gross negligence is define to be the want of even slight
and in the course of the employment, or contracts any care and diligence. (Mobile and M. R. Co. vs. Aschcraft
illness directly caused by such employment, or the result [1872] 48 Ala., 15.)
of the nature of such employment, his employer shall pay
compensation in the sums and to the persons hereinafter By gross negligence is meant "such entire want of care as
specified. to raise a presumption that the person in fault is conscious
of the probable consequences of carelessness, and is
Sec. 4. Injuries not covered. — Compensation shall not be indifferent, or worse, to the danger of injury to person or
allowed for injuries caused (1) by the voluntary intent of property of others." ... The negligence must amount to a
the employee to inflict such injury upon himself or another reckless disregard of the safety of person or property."
person; (2) by drunkenness on the part of the laborer who (Wall vs. Cameron [1882] 6 Colo., 275; see, also, The Law
had the accident; (3) by notorious negligence of the same. Governing Labor Disputes in the Philippines by Francisco,
2nd ed., p. 877.)
Pursuant to these provisions — in so far as pertinent to the case at
bar — three conditions are essential to hold an employer liable to It cannot be denied that in jumping into the sea, one mile and a half
compensate his employee for a personal injury sustained by him from the seashore of Arceli, Dumarang, Palawan, Filomeno failed to
from an accident, namely: (1) the accident must arise out of the exercise "even slight care and diligence," that he displayed a
employment; (2) it must happen in the course of the employment; "reckless disregard of the safety" of his person, that he could not
and (3) it must not be caused by the "notorious negligence" of the have been but conscious of the probable consequences" of his
employee. carelessness and that he was "indifferent, or worse, to the danger of
injury.
30
Thus, in the case of Government of the Philippines vs. The Manila
Electric Co. (40 Off. Gaz., 9th Suppl., 232),an employee of the Bureau
of Posts who died by electrocution, as the lines which he was
repairing came into contact with those of the Manila Electric, was
held to be guilty of gross negligence, he having been previously
warned that the service of electric light had been reestablished and
that he should, therefore be careful in handling the wires. The same
conclusion was reached in De la Cruz vs. Hijos de I. de la Rama and
Co. (62 Phil., 653), involving a truck driver who died, because his
truck fell into a ditch in consequence of a false manuever he made
to avoid collision with another car which unexpectedly appeared on
the road, while he was driving on the wrong side of the highway, at
a speed of 40 to 50 km. an hour.

To the same effect was the decision in Jahara vs. Mindanao Lumber
Co. (57 Phil., 853), referring to a laborer who was run over by a car,
as he fell therefrom, when he tried to board it while moving
backward. Similarly, the death of a carpenter as he slipped from the
roof of a building he was repairing was blamed on his gross
negligence in Caunan vs. Compania General de Tabacos (56 Phil.,
542,545), he having worn rubber shoes despite the fact that the roof
was wet.

The case of Reyes vs. The City of Manila (G. R. No. 29112, July 18,
1933) referred to a watchman assigned to a road-roller, who sat on
a piece of board one end of which was over a box placed on the hind
wheels of the road-roller and the other end over a box of tools on
the same rollert two meters above the ground. As he tried to drive
away the mosquitoes and flying ants which bothered him, the board
slipped off the wheel of the roller. So, he fell to the ground and his
knee and left pelvis bumped against the cement sidewalk, sustaining
physical injuries as a consequence thereof. It was held that he had
been grossly negligent in seating on the piece of board which was
precariously placed and in making motions for the purpose of driving
away the mosquitoes and flying ants. Again in Guilas vs. The
Province of Pampanga (G. R. No. 37744, July 21, 1933), a laborer on
board a truck who stood up as it was approaching a curve and fell
over when the vehicle turned the curved, was held guilty of gross
negligence.

In none of these cases was the danger as apparent or imminent as

when Filomeno Managuit jumped into the sea to recover his 2-peso
bill. Hence, there is more reason to hold that his death was caused
by his notorious negligence.

His case is easily distinguishable from that of Cuevo vs. Barredo (G.R.
No. 45669, decided February 24, 1938, the employee involved
therein, who appeared to be a good swimmer, having acted in
obedience to an order of his foreman, to save or protect a property
of the employer. It is, also, distinguishable from accidents occurring
while the laborer or employee is answering a call of nature, or
throwing away his cigarette (Columbia Casualty Co. vs. Parham, 69
Ga. App. 258), or picking up his pipe, which had fallen, or retrieving
his shoes from a car into which a fellow worker had thrown it
G.R. No. 159617 August 8, 2007
(Donovan vs. Bush Terminal Co., 6 N. Y. S. 2nd 860, 255 App. Div.
737), these acts not being dangerous per se and the employee being
legally justified or supposed to perform either of them in the course ROBERTO C. SICAM and AGENCIA de R.C. SICAM, INC., petitioners,
of his employment. So, also, if, while Filomeno Managuit was vs. LULU V. JORGE and CESAR JORGE, respondents.
working, his 2-peso bill merely fell from his pocket, and as he picked
up the bill from the floor something accidentally fell upon him and DECISION
injured him, he would surely be entitled to compensation, his act
being obviously innocent. In such case, it could be said, in the words AUSTRIA-MARTINEZ, J.:
of the Lord President in Lauchlan vs. Anderson (S. C. 529), that "He
had the right to be at the place ...; he was within the time during
Before us is a Petition for Review on Certiorari filed by Roberto C.
which he was employed ...;and he was doing a thing which a man
Sicam, Jr. (petitioner Sicam) and Agencia de R.C. Sicam, Inc.
while working may reasonably do-a workman of his sort may
(petitioner corporation) seeking to annul the Decision1 of the Court
reasonably smoke, he may reasonably drop his pipe, and he may
of Appeals dated March 31, 2003, and its Resolution2 dated August
reasonably pick it up again." (See Ramos vs. Poblete et al., 40 Off.
8, 2003, in CA G.R. CV No. 56633.
Gaz., 3474). Jumping into the sea, however, is entirely different, the
danger which it entails being clear, potent and obvious.
It appears that on different dates from September to October 1987,
Lulu V. Jorge (respondent Lulu) pawned several pieces of jewelry
In view of the foregoing the decision appealed from is hereby
with Agencia de R. C. Sicam located at No. 17 Aguirre Ave., BF
affirmed, without special pronouncement as to costs.
Homes Parañaque, Metro Manila, to secure a loan in the total
amount of P59,500.00.
It is so ordered.

31
On October 19, 1987, two armed men entered the pawnshop and Respondents appealed the RTC Decision to the CA. In a Decision
took away whatever cash and jewelry were found inside the dated March 31, 2003, the CA reversed the RTC, the dispositive
pawnshop vault. The incident was entered in the police blotter of portion of which reads as follows:
the Southern Police District, Parañaque Police Station as follows:
WHEREFORE, premises considered, the instant Appeal is
Investigation shows that at above TDPO, while victims GRANTED, and the Decision dated January 12, 1993,of the
were inside the office, two (2) male unidentified persons Regional Trial Court of Makati, Branch 62, is hereby
entered into the said office with guns drawn. Suspects(sic) REVERSED and SET ASIDE, ordering the appellees to pay
(1) went straight inside and poked his gun toward Romeo appellants the actual value of the lost jewelry amounting
Sicam and thereby tied him with an electric wire while to P272,000.00, and attorney' fees of P27,200.00.8
suspects (sic) (2) poked his gun toward Divina Mata and
Isabelita Rodriguez and ordered them to lay (sic) face flat In finding petitioner Sicam liable together with petitioner
on the floor. Suspects asked forcibly the case and assorted corporation, the CA applied the doctrine of piercing the veil of
pawned jewelries items mentioned above. corporate entity reasoning that respondents were misled into
thinking that they were dealing with the pawnshop owned by
Suspects after taking the money and jewelries fled on petitioner Sicam as all the pawnshop tickets issued to them bear the
board a Marson Toyota unidentified plate number.3 words "Agencia de R.C. Sicam"; and that there was no indication on
the pawnshop tickets that it was the petitioner corporation that
Petitioner Sicam sent respondent Lulu a letter dated October 19, owned the pawnshop which explained why respondents had to
1987 informing her of the loss of her jewelry due to the robbery amend their complaint impleading petitioner corporation.
incident in the pawnshop. On November 2, 1987, respondent Lulu
then wrote a letter4 to petitioner Sicam expressing disbelief stating The CA further held that the corresponding diligence required of a
that when the robbery happened, all jewelry pawned were pawnshop is that it should take steps to secure and protect the
deposited with Far East Bank near the pawnshop since it had been pledged items and should take steps to insure itself against the loss
the practice that before they could withdraw, advance notice must of articles which are entrusted to its custody as it derives earnings
be given to the pawnshop so it could withdraw the jewelry from the from the pawnshop trade which petitioners failed to do;
bank. Respondent Lulu then requested petitioner Sicam to prepare that Austria is not applicable to this case since the robbery incident
the pawned jewelry for withdrawal on November 6, 1987 but happened in 1961 when the criminality had not as yet reached the
petitioner Sicam failed to return the jewelry. levels attained in the present day; that they are at least guilty of
contributory negligence and should be held liable for the loss of
On September 28, 1988, respondent Lulu joined by her husband, jewelries; and that robberies and hold-ups are foreseeable risks in
Cesar Jorge, filed a complaint against petitioner Sicam with the that those engaged in the pawnshop business are expected to
Regional Trial Court of Makati seeking indemnification for the loss of foresee.
pawned jewelry and payment of actual, moral and exemplary
damages as well as attorney's fees. The case was docketed as Civil The CA concluded that both petitioners should be jointly and
Case No. 88-2035. severally held liable to respondents for the loss of the pawned
jewelry.
Petitioner Sicam filed his Answer contending that he is not the real
party-in-interest as the pawnshop was incorporated on April 20, Petitioners’ motion for reconsideration was denied in a Resolution
1987 and known as Agencia de R.C. Sicam, Inc; that petitioner dated August 8, 2003.
corporation had exercised due care and diligence in the safekeeping
of the articles pledged with it and could not be made liable for an Hence, the instant petition for review with the following assignment
event that is fortuitous. of errors:

Respondents subsequently filed an Amended Complaint to include THE COURT OF APPEALS ERRED AND WHEN IT DID, IT
petitioner corporation. OPENED ITSELF TO REVERSAL, WHEN IT ADOPTED
UNCRITICALLY (IN FACT IT REPRODUCED AS ITS OWN
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he is WITHOUT IN THE MEANTIME ACKNOWLEDGING IT) WHAT
concerned considering that he is not the real party-in-interest. THE RESPONDENTS ARGUED IN THEIR BRIEF, WHICH
Respondents opposed the same. The RTC denied the motion in an ARGUMENT WAS PALPABLY UNSUSTAINABLE.
Order dated November 8, 1989.5
THE COURT OF APPEALS ERRED, AND WHEN IT DID, IT
After trial on the merits, the RTC rendered its Decision6 dated OPENED ITSELF TO REVERSAL BY THIS HONORABLE COURT,
January 12, 1993, dismissing respondents’ complaint as well as WHEN IT AGAIN ADOPTED UNCRITICALLY (BUT WITHOUT
petitioners’ counterclaim. The RTC held that petitioner Sicam could ACKNOWLEDGING IT) THE SUBMISSIONS OF THE
not be made personally liable for a claim arising out of a corporate RESPONDENTS IN THEIR BRIEF WITHOUT ADDING
transaction; that in the Amended Complaint of respondents, they ANYTHING MORE THERETO DESPITE THE FACT THAT THE
asserted that "plaintiff pawned assorted jewelries in defendants' SAID ARGUMENT OF THE RESPONDENTS COULD NOT
pawnshop"; and that as a consequence of the separate juridical HAVE BEEN SUSTAINED IN VIEW OF UNREBUTTED
personality of a corporation, the corporate debt or credit is not the EVIDENCE ON RECORD.9
debt or credit of a stockholder.
Anent the first assigned error, petitioners point out that the CA’s
The RTC further ruled that petitioner corporation could not be held finding that petitioner Sicam is personally liable for the loss of the
liable for the loss of the pawned jewelry since it had not been pawned jewelries is "a virtual and uncritical reproduction of the
rebutted by respondents that the loss of the pledged pieces of arguments set out on pp. 5-6 of the Appellants’ brief."10
jewelry in the possession of the corporation was occasioned by
armed robbery; that robbery is a fortuitous event which exempts Petitioners argue that the reproduced arguments of respondents in
the victim from liability for the loss, citing the case of Austria v. their Appellants’ Brief suffer from infirmities, as follows:
Court of Appeals;7 and that the parties’ transaction was that of a
pledgor and pledgee and under Art. 1174 of the Civil Code, the
(1) Respondents conclusively asserted in paragraph 2 of
pawnshop as a pledgee is not responsible for those events which
their Amended Complaint that Agencia de R.C. Sicam, Inc.
could not be foreseen.
is the present owner of Agencia de R.C. Sicam Pawnshop,
and therefore, the CA cannot rule against said conclusive
assertion of respondents;

32
 (2) The issue resolved against petitioner Sicam was not such alleged incorporation were still in the name of "Agencia de R. C.
among those raised and litigated in the trial court; and Sicam," thus inevitably misleading, or at the very least, creating the
wrong impression to respondents and the public as well, that the
(3) By reason of the above infirmities, it was error for the pawnshop was owned solely by petitioner Sicam and not by a
CA to have pierced the corporate veil since a corporation corporation.
has a personality distinct and separate from its individual
stockholders or members. Even petitioners’ counsel, Atty. Marcial T. Balgos, in his
letter16 dated October 15, 1987 addressed to the Central Bank,
Anent the second error, petitioners point out that the CA finding on expressly referred to petitioner Sicam as the proprietor of the
their negligence is likewise an unedited reproduction of pawnshop notwithstanding the alleged incorporation in April 1987.
respondents’ brief which had the following defects:
We also find no merit in petitioners' argument that since
(1) There were unrebutted evidence on record that respondents had alleged in their Amended Complaint that petitioner
petitioners had observed the diligence required of them, corporation is the present owner of the pawnshop, the CA is bound
i.e, they wanted to open a vault with a nearby bank for to decide the case on that basis.
purposes of safekeeping the pawned articles but was
discouraged by the Central Bank (CB) since CB rules Section 4 Rule 129 of the Rules of Court provides that an admission,
provide that they can only store the pawned articles in a verbal or written, made by a party in the course of the proceedings
vault inside the pawnshop premises and no other place; in the same case, does not require proof. The admission may be
contradicted only by showing that it was made through palpable
(2) Petitioners were adjudged negligent as they did not mistake or that no such admission was made.
take insurance against the loss of the pledged jelweries,
but it is judicial notice that due to high incidence of crimes, Thus, the general rule that a judicial admission is conclusive upon
insurance companies refused to cover pawnshops and the party making it and does not require proof, admits of two
banks because of high probability of losses due to exceptions, to wit: (1) when it is shown that such admission was
robberies; made through palpable mistake, and (2) when it is shown that no
such admission was in fact made. The latter exception allows one to
(3) In Hernandez v. Chairman, Commission on Audit (179 contradict an admission by denying that he made such an
SCRA 39, 45-46), the victim of robbery was exonerated admission.17
from liability for the sum of money belonging to others
and lost by him to robbers. The Committee on the Revision of the Rules of Court explained the
second exception in this wise:
Respondents filed their Comment and petitioners filed their Reply
thereto. The parties subsequently submitted their respective x x x if a party invokes an "admission" by an adverse party,
Memoranda. but cites the admission "out of context," then the one
making the "admission" may show that he made no "such"
We find no merit in the petition. admission, or that his admission was taken out of context.

To begin with, although it is true that indeed the CA findings were x x x that the party can also show that he made no "such
exact reproductions of the arguments raised in respondents’ admission", i.e., not in the sense in which the admission is
(appellants’) brief filed with the CA, we find the same to be not made to appear.
fatally infirmed. Upon examination of the Decision, we find that it
expressed clearly and distinctly the facts and the law on which it is That is the reason for the modifier "such" because if the
based as required by Section 8, Article VIII of the Constitution. The rule simply states that the admission may be contradicted
discretion to decide a case one way or another is broad enough to by showing that "no admission was made," the rule would
justify the adoption of the arguments put forth by one of the parties, not really be providing for a contradiction of the admission
as long as these are legally tenable and supported by law and the but just a denial.18 (Emphasis supplied).
facts on records.11
While it is true that respondents alleged in their Amended
Our jurisdiction under Rule 45 of the Rules of Court is limited to the Complaint that petitioner corporation is the present owner of the
review of errors of law committed by the appellate court. Generally, pawnshop, they did so only because petitioner Sicam alleged in his
the findings of fact of the appellate court are deemed conclusive and Answer to the original complaint filed against him that he was not
we are not duty-bound to analyze and calibrate all over again the the real party-in-interest as the pawnshop was incorporated in April
evidence adduced by the parties in the court a quo.12 This rule, 1987. Moreover, a reading of the Amended Complaint in its entirety
however, is not without exceptions, such as where the factual shows that respondents referred to both petitioner Sicam and
findings of the Court of Appeals and the trial court are conflicting or petitioner corporation where they (respondents) pawned their
contradictory13 as is obtaining in the instant case. assorted pieces of jewelry and ascribed to both the failure to
observe due diligence commensurate with the business which
However, after a careful examination of the records, we find no resulted in the loss of their pawned jewelry.
justification to absolve petitioner Sicam from liability.
Markedly, respondents, in their Opposition to petitioners’ Motion to
The CA correctly pierced the veil of the corporate fiction and Dismiss Amended Complaint, insofar as petitioner Sicam is
adjudged petitioner Sicam liable together with petitioner concerned, averred as follows:
corporation. The rule is that the veil of corporate fiction may be
pierced when made as a shield to perpetrate fraud and/or confuse Roberto C. Sicam was named the defendant in the original
legitimate issues. 14 The theory of corporate entity was not meant to complaint because the pawnshop tickets involved in this
promote unfair objectives or otherwise to shield them.15 case did not show that the R.C. Sicam Pawnshop was a
corporation. In paragraph 1 of his Answer, he admitted the
Notably, the evidence on record shows that at the time respondent allegations in paragraph 1 and 2 of the Complaint. He
Lulu pawned her jewelry, the pawnshop was owned by petitioner merely added "that defendant is not now the real party in
Sicam himself. As correctly observed by the CA, in all the pawnshop interest in this case."
receipts issued to respondent Lulu in September 1987, all bear the
words "Agencia de R. C. Sicam," notwithstanding that the pawnshop It was defendant Sicam's omission to correct the
was allegedly incorporated in April 1987. The receipts issued after pawnshop tickets used in the subject transactions in this

33
 case which was the cause of the instant action. He cannot To constitute a fortuitous event, the following elements must
now ask for the dismissal of the complaint against him concur: (a) the cause of the unforeseen and unexpected occurrence
simply on the mere allegation that his pawnshop business or of the failure of the debtor to comply with obligations must be
is now incorporated. It is a matter of defense, the merit of independent of human will; (b) it must be impossible to foresee the
which can only be reached after consideration of the event that constitutes the caso fortuito or, if it can be foreseen, it
evidence to be presented in due course.19 must be impossible to avoid; (c) the occurrence must be such as to
render it impossible for the debtor to fulfill obligations in a normal
Unmistakably, the alleged admission made in respondents' manner; and, (d) the obligor must be free from any participation in
Amended Complaint was taken "out of context" by petitioner Sicam the aggravation of the injury or loss. 23
to suit his own purpose. Ineluctably, the fact that petitioner Sicam
continued to issue pawnshop receipts under his name and not under The burden of proving that the loss was due to a fortuitous event
the corporation's name militates for the piercing of the corporate rests on him who invokes it.24 And, in order for a fortuitous event to
veil. exempt one from liability, it is necessary that one has committed no
negligence or misconduct that may have occasioned the loss. 25
We likewise find no merit in petitioners' contention that the CA
erred in piercing the veil of corporate fiction of petitioner It has been held that an act of God cannot be invoked to protect a
corporation, as it was not an issue raised and litigated before the person who has failed to take steps to forestall the possible adverse
RTC. consequences of such a loss. One's negligence may have concurred
with an act of God in producing damage and injury to another;
Petitioner Sicam had alleged in his Answer filed with the trial court nonetheless, showing that the immediate or proximate cause of the
that he was not the real party-in-interest because since April 20, damage or injury was a fortuitous event would not exempt one from
1987, the pawnshop business initiated by him was incorporated and liability. When the effect is found to be partly the result of a person's
known as Agencia de R.C. Sicam. In the pre-trial brief filed by participation -- whether by active intervention, neglect or failure to
petitioner Sicam, he submitted that as far as he was concerned, the act -- the whole occurrence is humanized and removed from the
basic issue was whether he is the real party in interest against whom rules applicable to acts of God. 26
the complaint should be directed.20 In fact, he subsequently moved
for the dismissal of the complaint as to him but was not favorably Petitioner Sicam had testified that there was a security guard in their
acted upon by the trial court. Moreover, the issue was squarely pawnshop at the time of the robbery. He likewise testified that
passed upon, although erroneously, by the trial court in its Decision when he started the pawnshop business in 1983, he thought of
in this manner: opening a vault with the nearby bank for the purpose of safekeeping
the valuables but was discouraged by the Central Bank since pawned
x x x The defendant Roberto Sicam, Jr likewise denies articles should only be stored in a vault inside the pawnshop. The
liability as far as he is concerned for the reason that he very measures which petitioners had allegedly adopted show that to
cannot be made personally liable for a claim arising from a them the possibility of robbery was not only foreseeable, but
corporate transaction. actually foreseen and anticipated. Petitioner Sicam’s testimony, in
effect, contradicts petitioners’ defense of fortuitous event.
This Court sustains the contention of the defendant
Roberto C. Sicam, Jr. The amended complaint itself asserts Moreover, petitioners failed to show that they were free from any
that "plaintiff pawned assorted jewelries in defendant's negligence by which the loss of the pawned jewelry may have been
pawnshop." It has been held that " as a consequence of occasioned.
the separate juridical personality of a corporation, the
corporate debt or credit is not the debt or credit of the Robbery per se, just like carnapping, is not a fortuitous event. It does
stockholder, nor is the stockholder's debt or credit that of not foreclose the possibility of negligence on the part of herein
a corporation.21 petitioners. In Co v. Court of Appeals,27 the Court held:

Clearly, in view of the alleged incorporation of the pawnshop, the It is not a defense for a repair shop of motor vehicles to
issue of whether petitioner Sicam is personally liable is inextricably escape liability simply because the damage or loss of a
connected with the determination of the question whether the thing lawfully placed in its possession was due to
doctrine of piercing the corporate veil should or should not apply to carnapping. Carnapping per se cannot be considered as a
the case. fortuitous event. The fact that a thing was unlawfully and
forcefully taken from another's rightful possession, as in
The next question is whether petitioners are liable for the loss of the cases of carnapping, does not automatically give rise to a
pawned articles in their possession. fortuitous event. To be considered as such, carnapping
entails more than the mere forceful taking of another's
property. It must be proved and established that the event
Petitioners insist that they are not liable since robbery is a fortuitous
was an act of God or was done solely by third parties and
event and they are not negligent at all.
that neither the claimant nor the person alleged to be
negligent has any participation. In accordance with the
We are not persuaded. Rules of Evidence, the burden of proving that the loss was
due to a fortuitous event rests on him who invokes it —
Article 1174 of the Civil Code provides: which in this case is the private respondent. However,
other than the police report of the alleged carnapping
Art. 1174. Except in cases expressly specified by the law, or incident, no other evidence was presented by private
when it is otherwise declared by stipulation, or when the respondent to the effect that the incident was not due to
nature of the obligation requires the assumption of risk, its fault. A police report of an alleged crime, to which only
no person shall be responsible for those events which private respondent is privy, does not suffice to establish
could not be foreseen or which, though foreseen, were the carnapping. Neither does it prove that there was no
inevitable. fault on the part of private respondent notwithstanding
the parties' agreement at the pre-trial that the car was
carnapped. Carnapping does not foreclose the possibility
Fortuitous events by definition are extraordinary events not of fault or negligence on the part of private respondent.28
foreseeable or avoidable. It is therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly
believed but it must be one impossible to foresee or to avoid. The Just like in Co, petitioners merely presented the police report of the
mere difficulty to foresee the happening is not impossibility to Parañaque Police Station on the robbery committed based on the
foresee the same. 22 report of petitioners' employees which is not sufficient to establish

34
robbery. Such report also does not prove that petitioners were not Q. Did you come to know how the vault was opened?
at fault.
A. When the pawnshop is official (sic) open your honor the
On the contrary, by the very evidence of petitioners, the CA did not pawnshop is partly open. The combination is off.
err in finding that petitioners are guilty of concurrent or contributory
negligence as provided in Article 1170 of the Civil Code, to wit: Q. No one open (sic) the vault for the robbers?

Art. 1170. Those who in the performance of their A. No one your honor it was open at the time of the
obligations are guilty of fraud, negligence, or delay, and robbery.
those who in any manner contravene the tenor thereof,
are liable for damages.29
Q. It is clear now that at the time of the robbery the vault
was open the reason why the robbers were able to get all
Article 2123 of the Civil Code provides that with regard to the items pawned to you inside the vault.
pawnshops and other establishments which are engaged in making
loans secured by pledges, the special laws and regulations
A. Yes sir.32
concerning them shall be observed, and subsidiarily, the provisions
on pledge, mortgage and antichresis.
revealing that there were no security measures adopted by
petitioners in the operation of the pawnshop. Evidently, no
The provision on pledge, particularly Article 2099 of the Civil Code,
sufficient precaution and vigilance were adopted by petitioners to
provides that the creditor shall take care of the thing pledged with
protect the pawnshop from unlawful intrusion. There was no clear
the diligence of a good father of a family. This means that
showing that there was any security guard at all. Or if there was one,
petitioners must take care of the pawns the way a prudent person
that he had sufficient training in securing a pawnshop. Further, there
would as to his own property.
is no showing that the alleged security guard exercised all that was
necessary to prevent any untoward incident or to ensure that no
In this connection, Article 1173 of the Civil Code further provides: suspicious individuals were allowed to enter the premises. In fact, it
is even doubtful that there was a security guard, since it is quite
Art. 1173. The fault or negligence of the obligor consists in impossible that he would not have noticed that the robbers were
the omission of that diligence which is required by the armed with caliber .45 pistols each, which were allegedly poked at
nature of the obligation and corresponds with the the employees.33 Significantly, the alleged security guard was not
circumstances of the persons, of time and of the place. presented at all to corroborate petitioner Sicam's claim; not one of
When negligence shows bad faith, the provisions of petitioners' employees who were present during the robbery
Articles 1171 and 2201, paragraph 2 shall apply. incident testified in court.

If the law or contract does not state the diligence which is Furthermore, petitioner Sicam's admission that the vault was open
to be observed in the performance, that which is expected at the time of robbery is clearly a proof of petitioners' failure to
of a good father of a family shall be required. observe the care, precaution and vigilance that the circumstances
justly demanded. Petitioner Sicam testified that once the pawnshop
We expounded in Cruz v. Gangan30 that negligence is the omission was open, the combination was already off. Considering petitioner
to do something which a reasonable man, guided by those Sicam's testimony that the robbery took place on a Saturday
considerations which ordinarily regulate the conduct of human afternoon and the area in BF Homes Parañaque at that time was
affairs, would do; or the doing of something which a prudent and quiet, there was more reason for petitioners to have exercised
reasonable man would not do.31 It is want of care required by the reasonable foresight and diligence in protecting the pawned
circumstances. jewelries. Instead of taking the precaution to protect them, they let
open the vault, providing no difficulty for the robbers to cart away
the pawned articles.
A review of the records clearly shows that petitioners failed to
exercise reasonable care and caution that an ordinarily prudent
person would have used in the same situation. Petitioners were We, however, do not agree with the CA when it found petitioners
guilty of negligence in the operation of their pawnshop business. negligent for not taking steps to insure themselves against loss of
Petitioner Sicam testified, thus: the pawned jewelries.

Court: Under Section 17 of Central Bank Circular No. 374, Rules and
Regulations for Pawnshops, which took effect on July 13, 1973, and
which was issued pursuant to Presidential Decree No. 114,
Q. Do you have security guards in your pawnshop?
Pawnshop Regulation Act, it is provided that pawns pledged must be
insured, to wit:
A. Yes, your honor.
Sec. 17. Insurance of Office Building and Pawns- The place
Q. Then how come that the robbers were able to enter the of business of a pawnshop and the pawns pledged to it
premises when according to you there was a security must be insured against fire and against burglary as well as
guard? for the latter(sic), by an insurance company accredited by
the Insurance Commissioner.
A. Sir, if these robbers can rob a bank, how much more a
pawnshop. However, this Section was subsequently amended by CB Circular No.
764 which took effect on October 1, 1980, to wit:
Q. I am asking you how were the robbers able to enter
despite the fact that there was a security guard? Sec. 17 Insurance of Office Building and Pawns – The office
building/premises and pawns of a pawnshop must be
A. At the time of the incident which happened about 1:00 insured against fire. (emphasis supplied).
and 2:00 o'clock in the afternoon and it happened on a
Saturday and everything was quiet in the area BF Homes where the requirement that insurance against burglary was deleted.
Parañaque they pretended to pawn an article in the Obviously, the Central Bank considered it not feasible to require
pawnshop, so one of my employees allowed him to come insurance of pawned articles against burglary.
in and it was only when it was announced that it was a
hold up.

35
The robbery in the pawnshop happened in 1987, and considering Santos Avenue, the jeep was held up and the money kept by
the above-quoted amendment, there is no statutory duty imposed Hernandez was taken, and the robbers jumped out of the jeep and
on petitioners to insure the pawned jewelry in which case it was ran. Hernandez chased the robbers and caught up with one robber
error for the CA to consider it as a factor in concluding that who was subsequently charged with robbery and pleaded guilty. The
petitioners were negligent. other robber who held the stolen money escaped. The Commission
on Audit found Hernandez negligent because he had not brought
Nevertheless, the preponderance of evidence shows that petitioners the cash proceeds of the checks to his office in Ternate, Cavite for
failed to exercise the diligence required of them under the Civil safekeeping, which is the normal procedure in the handling of funds.
Code. We held that Hernandez was not negligent in deciding to encash the
check and bringing it home to Marilao, Bulacan instead of Ternate,
Cavite due to the lateness of the hour for the following reasons: (1)
The diligence with which the law requires the individual at all times
he was moved by unselfish motive for his co-employees to collect
to govern his conduct varies with the nature of the situation in
their wages and salaries the following day, a Saturday, a non-
which he is placed and the importance of the act which he is to
working, because to encash the check on July 5, the next working
perform.34 Thus, the cases of Austria v. Court of
day after July 1, would have caused discomfort to laborers who were
Appeals,35 Hernandez v. Chairman, Commission on Audit36 and Cruz
dependent on their wages for sustenance; and (2) that choosing
v. Gangan37 cited by petitioners in their pleadings, where the victims
Marilao as a safer destination, being nearer, and in view of the
of robbery were exonerated from liability, find no application to the
comparative hazards in the trips to the two places, said decision
present case.
seemed logical at that time. We further held that the fact that two
robbers attacked him in broad daylight in the jeep while it was on a
In Austria, Maria Abad received from Guillermo Austria a pendant busy highway and in the presence of other passengers could not be
with diamonds to be sold on commission basis, but which Abad said to be a result of his imprudence and negligence.
failed to subsequently return because of a robbery committed upon
her in 1961. The incident became the subject of a criminal case filed
Unlike in Hernandez where the robbery happened in a public utility,
against several persons. Austria filed an action against Abad and her
the robbery in this case took place in the pawnshop which is under
husband (Abads) for recovery of the pendant or its value, but the
the control of petitioners. Petitioners had the means to screen the
Abads set up the defense that the robbery extinguished their
persons who were allowed entrance to the premises and to protect
obligation. The RTC ruled in favor of Austria, as the Abads failed to
itself from unlawful intrusion. Petitioners had failed to exercise
prove robbery; or, if committed, that Maria Abad was guilty of
precautionary measures in ensuring that the robbers were
negligence. The CA, however, reversed the RTC decision holding that
prevented from entering the pawnshop and for keeping the vault
the fact of robbery was duly established and declared the Abads not
open for the day, which paved the way for the robbers to easily cart
responsible for the loss of the jewelry on account of a fortuitous
away the pawned articles.
event. We held that for the Abads to be relieved from the civil
liability of returning the pendant under Art. 1174 of the Civil Code, it
would only be sufficient that the unforeseen event, the robbery, In Cruz, Dr. Filonila O. Cruz, Camanava District Director of
took place without any concurrent fault on the debtor’s part, and Technological Education and Skills Development Authority (TESDA),
this can be done by preponderance of evidence; that to be free from boarded the Light Rail Transit (LRT) from Sen. Puyat Avenue to
liability for reason of fortuitous event, the debtor must, in addition Monumento when her handbag was slashed and the contents were
to the casus itself, be free of any concurrent or contributory fault or stolen by an unidentified person. Among those stolen were her
negligence.38 wallet and the government-issued cellular phone. She then reported
the incident to the police authorities; however, the thief was not
located, and the cellphone was not recovered. She also reported the
We found in Austria that under the circumstances prevailing at the
loss to the Regional Director of TESDA, and she requested that she
time the Decision was promulgated in 1971, the City of Manila and
be freed from accountability for the cellphone. The Resident Auditor
its suburbs had a high incidence of crimes against persons and
denied her request on the ground that she lacked the diligence
property that rendered travel after nightfall a matter to be
required in the custody of government property and was ordered to
sedulously avoided without suitable precaution and protection; that
pay the purchase value in the total amount of P4,238.00. The COA
the conduct of Maria Abad in returning alone to her house in the
found no sufficient justification to grant the request for relief from
evening carrying jewelry of considerable value would have been
accountability. We reversed the ruling and found that riding the LRT
negligence per se and would not exempt her from responsibility in
cannot per se be denounced as a negligent act more so because
the case of robbery. However we did not hold Abad liable for
Cruz’s mode of transit was influenced by time and money
negligence since, the robbery happened ten years previously; i.e.,
considerations; that she boarded the LRT to be able to arrive in
1961, when criminality had not reached the level of incidence
Caloocan in time for her 3 pm meeting; that any prudent and
obtaining in 1971.
rational person under similar circumstance can reasonably be
expected to do the same; that possession of a cellphone should not
In contrast, the robbery in this case took place in 1987 when robbery hinder one from boarding the LRT coach as Cruz did considering that
was already prevalent and petitioners in fact had already foreseen it whether she rode a jeep or bus, the risk of theft would have also
as they wanted to deposit the pawn with a nearby bank for been present; that because of her relatively low position and pay,
safekeeping. Moreover, unlike in Austria, where no negligence was she was not expected to have her own vehicle or to ride a taxicab;
committed, we found petitioners negligent in securing their she did not have a government assigned vehicle; that placing the
pawnshop as earlier discussed. cellphone in a bag away from covetous eyes and holding on to that
bag as she did is ordinarily sufficient care of a cellphone while
In Hernandez, Teodoro Hernandez was the OIC and special traveling on board the LRT; that the records did not show any
disbursing officer of the Ternate Beach Project of the Philippine specific act of negligence on her part and negligence can never be
Tourism in Cavite. In the morning of July 1, 1983, a Friday, he went presumed.
to Manila to encash two checks covering the wages of the
employees and the operating expenses of the project. However for Unlike in the Cruz case, the robbery in this case happened in
some reason, the processing of the check was delayed and was petitioners' pawnshop and they were negligent in not exercising the
completed at about 3 p.m. Nevertheless, he decided to encash the precautions justly demanded of a pawnshop.
check because the project employees would be waiting for their pay
the following day; otherwise, the workers would have to wait until
WHEREFORE, except for the insurance aspect, the Decision of the
July 5, the earliest time, when the main office would open. At that
Court of Appeals dated March 31, 2003 and its Resolution dated
time, he had two choices: (1) return to Ternate, Cavite that same
August 8, 2003, are AFFIRMED.Costs against petitioners.SO
afternoon and arrive early evening; or (2) take the money with him
ORDERED.
to his house in Marilao, Bulacan, spend the night there, and leave
for Ternate the following day. He chose the second option, thinking
it was the safer one. Thus, a little past 3 p.m., he took a passenger
jeep bound for Bulacan. While the jeep was on Epifanio de los

36
 portion of the land, at a price to be agreed upon by the parties
within sixty (60) days from receipt of the said Decision. In the event
that the Cuasos were unable and unwilling to purchase the said
portion, the perimeter wall should be demolished at the latter’s
expense. The RTC also ordered the Cuasos to pay monthly rentals
of P2,000.00 commencing from the time of the filing of the
complaint. The RTC likewise held that C.B. Paraz was grossly
negligent in not taking into account the correct boundaries of
Cuasos’ lot when it constructed the house. It, thus, ordered C.B.
Paraz to pay moral and exemplary damages as well as attorney’s
fees to the Tanjangcos and the Cuasos. The third-party complaint
G.R. No. 160795 June 27, 2008 against Corinthian and Engr. De Dios, on the other hand, was
dismissed for lack of cause of action.

CORINTHIAN GARDENS ASSOCIATION, INC., petitioner,

vs. SPOUSES REYNALDO and MARIA LUISA TANJANGCO, and The Tanjangcos filed a Motion for Reconsideration9 of the said RTC
SPOUSES FRANK and TERESITA CUASO, respondent. Decision which the RTC, however, denied in its Order10 dated June
28, 1993.

DECISION
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B.
Paraz all appealed to the CA.
NACHURA, J.:
On appeal, the CA reversed and set aside the RTC Decision. It held
Before this Court is a Petition for Review on Certiorari1 under Rule that the Cuasos acted in bad faith in land-grabbing the 87 square
45 of the Rules of Civil Procedure seeking the reversal of the Court meter-portion of Lot 69 as of April 5, 1989. Correlatively, the CA
of Appeals (CA) Decision2 dated January 31, 2003 in CA-G.R. CV No. allowed the Tanjangcos to exercise the rights granted under Articles
43217, which reversed and set aside the Decision3 of the Regional 449, 450, 451 and 549 of the New Civil Code, which include the right
Trial Court (RTC) of Quezon City, dated March 30, 1993. to demand the demolition of the offending perimeter wall after
reimbursing the Cuasos the necessary expenses for the preservation
The Antecedents: of the encroached area. The Cuasos were ordered to pay monthly
rentals of P10,000.00 for the use, enjoyment and occupancy of the
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the lot from 1989 up to the time they vacate the property considering
Tanjangcos) own Lots 68 and 69 covered by Transfer Certificates of the location and category of the same. They were, likewise, ordered
Title (TCT) No. 2422454 and 2829615 respectively, located at to pay the Tanjangcos P100,000.00, as moral damages, P50,000.00
Corinthian Gardens Subdivision, Quezon City, which is managed by as exemplary damages, and P150,000.00 as attorney’s fees. The CA
petitioner Corinthian Gardens Association, Inc. (Corinthian). On the also imposed six percent (6%) interest per annum on all the awards.
other hand, respondents-spouses Frank and Teresita Cuaso (the The Cuasos’ appeal against the Tanjangcos, on the other hand, was
Cuasos) own Lot 65 which is adjacent to the Tanjangcos’ lots. dismissed for lack of merit. On the third-party complaints,
Corinthian, C.B. Paraz and Engr. De Dios were all found negligent in
performing their respective duties and so they were ordered to
Before the Cuasos constructed their house on Lot 65, a relocation
contribute five percent (5%) each, or a total of fifteen percent (15%)
survey was necessary. As Geodetic Engineer Democrito De Dios
to all judgment sums and amounts that the Cuasos shall eventually
(Engr. De Dios), operating under the business name D.M. De Dios
pay under the decision, also with interest of six percent (6%) per
Realty and Surveying, conducted all the previous surveys for the
annum.
subdivision's developer, Corinthian referred Engr. De Dios to the
Cuasos. Before, during and after the construction of the said house,
Corinthian conducted periodic ocular inspections in order to Only Corinthian filed a Motion for Reconsideration11 of the CA
determine compliance with the approved plans pursuant to the Decision within the 15-day reglementary period. No motion for
Manual of Rules and Regulations of Corinthian.6 Unfortunately, after reconsideration was filed by the Cuasos, C.B. Paraz and/or Engr. De
the Cuasos constructed their house employing the services of C.B. Dios.
Paraz & Construction Co., Inc. (C.B. Paraz) as builder, their perimeter
fence encroached on the Tanjangcos’ Lot 69 by 87 square meters. About six (6) months later, or on August 12, 2003, the Cuasos filed a
Comment/Manifestation12 praying that they be allowed to adopt
No amicable settlement was reached between the parties. Thus, the Corinthian’s Motion for Reconsideration.
Tanjangcos demanded that the Cuasos demolish the perimeter
fence but the latter failed and refused, prompting the Tanjangcos to In its Resolution13 dated November 14, 2003, the CA denied
file with the RTC a suit against the Cuasos for Recovery of Possession Corinthian’s Motion for Reconsideration.
with Damages.7
Hence, Corinthian filed the instant Petition for Review on Certiorari
Eventually, the Cuasos filed a Third-Party Complaint8 against assailing the CA Decision and Resolution, and impleading the Cuasos
Corinthian, C.B. Paraz and Engr. De Dios. The Cuasos ascribed as one of the respondents being the third-party plaintiffs in the RTC.
negligence to C.B. Paraz for its failure to ascertain the proper
specifications of their house, and to Engr. De Dios for his failure to This Court gave due course to Corinthian’s petition and required the
undertake an accurate relocation survey, thereby, exposing them to parties to submit their respective memorandum. 14 In compliance,
litigation. The Cuasos also faulted Corinthian for approving their the Cuasos submitted their Memorandum15 and Supplement to
relocation survey and building plans without verifying their accuracy Memorandum,16 which were both noted by this Court in its
and in making representations as to Engr. De Dios' integrity and Resolutions dated January 10, 200517 and February 2,
competence. The Cuasos alleged that had Corinthian exercised 2005, 18 respectively.
diligence in performing its duty, they would not have been involved
in a boundary dispute with the Tanjangcos. Thus, the Cuasos opined
that Corinthian should also be held answerable for any damages that In the meantime, the Tanjangcos moved for partial entry of
they might incur as a result of such construction. judgment of the CA Decision which was granted by the CA in its
Resolution19 dated May 26, 2006, directing the issuance of an Entry
of Judgment and a Certification that its Decision dated January 31
On March 30, 1993, the RTC rendered a Decision in favor of the 2003 has become final and executory with respect to the Cuasos,
Tanjangcos. It ruled that the Cuasos’ perimeter wall encroached on C.B. Paraz and Engr. De Dios for their failure to file an appeal
the land of the Tanjangos by 87 square meters. It, however, ruled assailing the said Decision before this Court.
that the Cuasos were builders in good faith, and gave the Tanjangcos
the option to sell and the Cuasos the option to buy the encroaching
37
The Tanjangcos then moved for the execution of the judgment While it is true that this Court noted the Memorandum and
against the Cuasos, specifically the demolition of the perimeter Supplemental Memorandum filed by the Cuasos, such notation was
fence,20 which was also granted by the RTC in its Order21 dated made only insofar as Corinthian made them respondents in this
December 18, 2006. petition. This Court cannot grant to the Cuasos any affirmative relief
as they did not file a petition questioning the CA ruling.
Other than the filing of an Opposition22 and a Motion for Consequently, the Decision of the CA holding that the Cuasos acted
Reconsideration23 before the RTC, the Cuasos prayed for the in bad faith and that the perimeter fence may now be demolished
issuance of a temporary restraining order (TRO) and/or preliminary cannot be put in issue by the Cuasos. It is a fundamental principle
injunction before this Court to enjoin the demolition of the that a party who does not appeal, or file a petition for certiorari, is
perimeter fence. They averred that the premature demolition of the not entitled to any affirmative relief.30 An appellee who is not an
alleged encroaching perimeter wall and other improvements will appellant may assign errors in his brief where his purpose is to
cause grave and irreparable damage to them, because what is maintain the judgment, but he cannot seek modification or reversal
sought to be demolished is part of their residence. They claimed that of the judgment or claim affirmative relief unless he has also
no amount of money will compensate for the damage they stand to appealed.31 This applies to C.B. Paraz and Engr. De Dios who likewise
suffer should any demolition subsequently prove to be wrongful. failed to assail the aforementioned CA Decision.
They argued that before any execution can be carried out, it is
necessary to first determine whether or not Corinthian was With this matter put to rest, we now go to the main issues raised by
negligent in approving the building plan and whether or not it acted Corinthian, the sole petitioner in this case, to wit:
in good faith in doing so. Such determination, according to the
Cuasos, will in turn determine whether or not they were in good a) Whether or not there is legal basis for the Court of
faith in constructing the house.24 Appeals to hold petitioner Corinthian Gardens Association,
Inc. liable to pay 5% of the judgment money to Sps.
The Tanjangcos opposed the Cuasos' application for TRO. They Tanjangco on account of the encroachment made by Sps.
countered that the only pending matter with this Court is the appeal Cuaso[; and]
by Corinthian; hence, the implementation of the January 31, 2003
Decision of the CA against the Cuasos will not preempt the outcome b) Whether or not the Court of Appeals has legal basis to
of the said pending incidents. Also, any action taken by this Court on increase unilaterally and without proof the amount prayed
Corinthian’s petition would not benefit the Cuasos for they did not for in the Complaint, i.e., P2,000.00, as reasonable
appeal the adverse decision against them. Accordingly, they cannot compensation for the use and enjoyment of the portion of
obtain affirmative relief from this Court by reason or on account of the lot encroached upon, to P10,000.00.32
the appeal taken by Corinthian. The appeal, they added, is personal
to Corinthian. Finally, they argued that the Cuasos are now estopped
Corinthian claims that the approval of the building plan of the
from questioning the enforcement of the CA Decision since they
Cuasos was not tainted with negligence as it did not approve the
issued a manager’s check to pay the money judgment.25
survey relocation plan but merely the architectural, structural and
sanitary plans for Cuasos' house; that the purpose of the said
In this Court's Resolution dated July 18, 2007, we denied the Cuasos' approval is not to ensure that the house to be erected on a
application for TRO and/or writ of preliminary injunction for lack of particular lot is constructed within its boundaries but only to ensure
merit. compliance with the Manual of Rules and Regulations; that while
Corinthian conducts actual site inspections, the inspection and
The denial was based on sound legal principles. It is axiomatic that approval of the building plans are limited to "table inspection" only;
to be entitled to the injunctive writ, one must show that there exists that the survey relocation plan was never submitted for Corinthian's
a right to be protected which is directly threatened by the act sought approval; that the acceptance of the builder's bond did not make
to be enjoined. Furthermore, there must be a showing that the Corinthian automatically liable for the encroachment and for
invasion of the right is material and substantial, that the right of damages; and that Corinthian approved the building plan with the
complainant is clear and unmistakable, and that there is an urgent good faith and due diligence required under the circumstances. It,
and paramount necessity for the writ to issue in order to prevent thus, concludes that it cannot be held liable to pay five
serious damage.26
percent (5%) of the money judgment to the Tanjangcos on account
In the Cuasos’ case, their right to injunctive relief had not been of the encroachment made by the Cuasos. Likewise, it finds no legal
clearly and unmistakably demonstrated. They failed to show proof basis for the CA to unilaterally increase the amount of the adjudged
that there is material and substantial invasion of their right to rent from P2,000.00 to P10,000.00 which was not prayed for by the
warrant the issuance of an injunctive writ. Indeed, the enforcement Tanjangcos in their complaint and in the absence of evidence
of the writ of execution, which would demolish the Cuasos’ adduced by the parties.33
perimeter fence, is manifestly prejudicial to their interest. However,
they possess no clear and unmistakable legal right that merits On the other hand, the Tanjangcos stand by the ruling of the CA and
protection through the writ of preliminary injunction. 27 Their right to opine that Corinthian was negligent in approving the building plan of
maintain the said fence had been declared inferior to the the Cuasos. They submit that Corinthian's claim that it merely
Tanjangcos’ right to the demolition of the fence, after the CA conducts "table inspections" of buildings further bolsters their
judgment had become final and executory as to the Cuasos. argument that Corinthian was negligent in conveniently and
unilaterally restricting and limiting the coverage of its approval,
It bears stressing that the Cuasos failed to appeal the ruling of the contrary to its own Manual of Rules and Regulations; that the
CA. This failure to contest the CA decision before this Court was fatal acceptance of a builder's bond does not automatically make
to their cause. It had the effect of an admission that they indeed Corinthian liable but the same affirms the fact that a homeowner
acted in bad faith, as they accepted the CA ruling. The decision of can hold it liable for the consequences of the approval of a building
the CA, therefore, became binding and final as to them.28 As a plan; and that Corinthian, by regularly demanding and accepting
matter of fact, the CA already issued a partial entry of judgment membership dues, must be wary of its responsibility to protect the
against the Cuasos. rights and interests of its members. Lastly, the Tanjangcos contend
that a court can take judicial notice of the general increase in the
An injunction to stay a final and executory decision is unavailing rentals of real estate, as in this case, where the CA considered the
except only after a showing that facts and circumstances exist which value of their lot in the "posh-and-swank" Corinthian Gardens
would render execution unjust or inequitable, or that a change in Subdivision and the fact that they were deprived of it for almost two
the situation of the parties occurred. Here, no such exception exists decades. The Tanjangcos pray that this Court sustain the ruling of
as shown by the facts earlier narrated.29 the CA.34

The instant case is obviously one for tort, as governed by Article

2176 of the Civil Code, which provides:
38
 ART. 2176. Whoever by act or omission causes damage to No new construction can be started unless the
another, there being fault or negligence, is obliged to pay building plans are approved by the
for the damage done. Such fault or negligence, if there is Association and the appropriate Builder’s cash
no pre-existing contractual relation between the parties, is bond and pre-construction fees are paid. The
called a quasi-delict and is governed by the provisions of Association will not allow the entry of
this Chapter. construction materials and process identification
cards for workers if the above conditions are not
In every tort case filed under this provision, plaintiff has to prove by complied with. Likewise, all renovations, repairs,
a preponderance of evidence: (1) the damages suffered by the additions and improvements to a finished house
plaintiff; (2) the fault or negligence of the defendant or some other except electrical wiring, will have to be approved
person for whose act he must respond; and (3) the connection of by the Association. Water service connection of
cause and effect between the fault or negligence and the damages a homeowner who undertakes construction
incurred.35 work without prior approval of the Association
will be cut-off in addition to the sanctions
previously mentioned.
Undeniably, the perimeter fence of the Cuasos encroached on Lot 69
owned by the Tanjangcos by 87 square meters as duly found by both
the RTC and the CA in accordance with the evidence on record. As a It goes without saying that this Manual of Rules and
result, the Tanjangcos suffered damage in having been deprived of Regulations applies to all - or it does not apply at all. To
the use of that portion of their lot encroached upon. Thus, the borrow a popular expression, what is sauce for the gander
primordial issue to be resolved in this case is whether Corinthian is sauce for the goose - or ought to be. To put it matter-of-
was negligent under the circumstances and, if so, whether such factly and bluntly, thus, its so-called "table inspection"
negligence contributed to the injury suffered by the Tanjangcos. approval of the Cuasos’ building plans is no less of an
approval, as approvals come and go. And since it is an
approval tainted with negligence, the necessary and
A negligent act is an inadvertent act; it may be merely carelessly
inevitable consequences which law and justice attach to
done from a lack of ordinary prudence and may be one which
such negligence must, as a matter of law and justice, also
creates a situation involving an unreasonable risk to another
necessarily attach to Corinthian.
because of the expectable action of the other, a third person, an
animal, or a force of nature. A negligent act is one from which an
ordinary prudent person in the actor's position, in the same or And then again third party defendant-appellee Corinthian
similar circumstances, would foresee such an appreciable risk of Garden required the posting of a builder’s cash bond (Exh.
harm to others as to cause him not to do the act or to do it in a more 5-Corinthian) from the defendants-appellants Cuasos and
careful manner.36 the third-party defendant C.B. Paraz Construction to
secure the performance of their undertaking. Surely,
Corinthian does not imply that while it may take the
The test to determine the existence of negligence in a particular
benefits from the Builder’s cash bond, it may, Pilate-like,
case may be stated as follows: Did the defendant in committing the
wash its hands of any responsibility or liability that would
alleged negligent act use that reasonable care and caution which an
or might arise from the construction or building of the
ordinary person would have used in the same situation? If not, then
structure for which the cash bond was in the first place
he is guilty of negligence. The law, in effect, adopts the standard
posted. That is not only unjust and immoral, but downright
supplied by the imaginary conduct of the discreet paterfamilias in
unchristian and iniquitous.
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, Under the same parity of reasoning, the payment by the
blameworthy, or negligent in a man of ordinary intelligence and appellants-Cuasos to the appellee Corinthian of pre-
prudence, and determines liability according to that standard.37 construction and membership fees in the Association must
necessarily entail the creation of certain obligations on the
part of Corinthian. For duties and responsibilities always
By this test, we find Corinthian negligent.
go hand in hand with rights and privileges. That is the law
of life - and that is the law of every civilized society. It is an
While the issue of Corinthian's alleged negligence is factual in axiom of equity that he who receives the benefits must
character,38 a review by this Court is proper because the CA's factual share the burdens.40
findings differ from those of the RTC's.39 Thus, after a meticulous
review of the evidence on record, we hold that the CA committed no
By its Manual of Rules and Regulations, it is reasonable to assume
reversible error when it deviated from the findings of fact of the
that Corinthian, through its representative, in the approval of
RTC. The CA's findings and conclusions are substantiated by the
building plans, and in the conduct of periodic inspections of on-going
evidence on record and are more in accord with law and reason.
construction projects within the subdivision, is responsible in
Indeed, it is clear that Corinthian failed to exercise the requisite
insuring compliance with the approved plans, inclusive of the
diligence in insuring that the Cuasos abide by its Manual of Rules
construction of perimeter walls, which in this case is the subject of
and Regulations, thereby resulting in the encroachment on the
dispute between the Tanjangcos and the Cuasos.41 It is not just or
Tanjangcos’ property.
equitable to relieve Corinthian of any liability when, by its very own
rules, it imposes its authority over all its members to the end that
We agree with the CA when it aptly held: "no new construction can be started unless the plans are approved
by the Association and the appropriate cash bond and pre-
Corinthian cannot and should not be allowed to justify or construction fees are paid." Moreover, Corinthian can impose
excuse its negligence by claiming that its approval of the sanctions for violating these rules. Thus, the proposition that the
Cuasos’ building plans was only limited to a so-called inspection is merely a "table inspection" and, therefore, should
"table inspection;" and not actual site measurement. To exempt Corinthian from liability, is unacceptable. After all, if the
accept some such postulate is to put a premium on supposed inspection is merely a "table inspection" and the approval
negligence. Corinthian was not organized solely for the granted to every member is a mere formality, then the purpose of
defendants Cuasos. It is also the subdivision of the the rules would be defeated. Compliance therewith would not be
plaintiffs-spouses Tanjangcos - and of all others who have mandatory, and sanctions imposed for violations could be
their dwelling units or abodes therein. Pertinently, its disregarded. Corinthian's imprimatur on the construction of the
Manual of Rules and Regulations stipulates in Section 3 Cuasos' perimeter wall over the property of the Tanjangcos assured
thereof (under the heading Construction), thus: the Cuasos that everything was in order.

A. Rules and Regulations In sum, Corinthian’s failure to prevent the encroachment of the
Cuasos’ perimeter wall into Tanjangcos’ property – despite the

39
inspection conducted – constitutes negligence and, at the very least, THE HEIRS OF REDENTOR COMPLETO and ELPIDIO
contributed to the injury suffered by the Tanjangcos. ABIAD, Petitioners,
vs.SGT. AMANDO C. ALBAYDA, JR., Respondent.
On the second issue, our ruling in Spouses Badillo v. Tayag42 is
instructive: DECISION

Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], NACHURA, J.:
petitioners argue that the MTC may take judicial notice of
the reasonable rental or the general price increase of land Before the Court is a petition for review on certiorari under Rule 45
in order to determine the amount of rent that may be of the Rules of Court, assailing the Decision1 dated January 2, 2006
awarded to them. In that case, however, this Court relied and the Resolution2 dated March 30, 2006 of the Court of Appeals
on the CA's factual findings, which were based on the (CA) in CA-G.R. CV No. 68405.
evidence presented before the trial court. In determining
reasonable rent,
The Facts

the RTC therein took account of the following factors: 1)

The facts of the case are as follows:
the realty assessment of the land, 2) the increase in realty
taxes, and 3) the prevailing rate of rentals in the vicinity.
Clearly, the trial court relied, not on mere judicial notice, Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant
but on the evidence presented before it. of the Philippine Air Force, 527th Base Security Squadron, 520th
Airbase, Philippine Air Force, located at Villamor Air Base (VAB),
Pasay City. Petitioner Redentor Completo (Completo), now
Indeed, courts may fix the reasonable amount of rent for
represented by his heirs, was the taxi driver of a Toyota Corolla,
the use and occupation of a disputed property. However,
bearing Plate No. PYD-128, owned and operated by co-petitioner
petitioners herein erred in assuming that courts, in
Elpidio Abiad (Abiad).3 Albayda and Completo figured in an accident
determining the amount of rent, could simply rely on their
along the intersection of 8th and 11th Streets, VAB. Albayda filed a
own appreciation of land values without considering any
complaint for damages before the Regional Trial Court (RTC) of
evidence. As we have said earlier, a court may fix the
Pasay City. The case was docketed as Civil Case No. 98-1333.4
reasonable amount of rent, but it must still base its action
on the evidence adduced by the parties.
The amended complaint alleged that, on August 27, 1997, while
Albayda was on his way to the office to report for duty, riding a
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002],
bicycle along 11th Street, the taxi driven by Completo bumped and
the trial court awarded rent to the defendants in a forcible
sideswiped him, causing serious physical injuries. Albayda was
entry case. Reversing the RTC, this Court declared that the
brought to the Philippine Air Force General Hospital (PAFGH) inside
reasonable amount of rent could be determined not by
VAB. However, he was immediately transferred to the Armed Forces
mere judicial notice, but by supporting evidence:
of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon
City, because there was a fracture in his left knee and there was no
x x x A court cannot take judicial notice of a orthopedic doctor available at PAFGH. From August 27, 1997 until
factual matter in controversy. The court may February 11, 1998, he was confined therein. He was again
take judicial notice of matters of public hospitalized at PAFGH from February 23, 1998 until March 22,
knowledge, or which are capable of 1998.5
unquestionable demonstration, or ought to be
known to judges because of their judicial
Conciliation between the parties before the barangay failed. Thus,
functions. Before taking such judicial notice, the
Albayda filed a complaint for physical injuries through reckless
court must "allow the parties to be heard
imprudence against Completo before the Office of the City
thereon." Hence, there can be no judicial notice
Prosecutor of Pasay City. On the other hand, Completo filed a
on the rental value of the premises in question
counter-charge of damage to property through reckless imprudence
without supporting evidence.
against Albayda. On January 13, 1998, the Office of the City
Prosecutor issued a resolution,6 recommending the filing of an
Truly, mere judicial notice is inadequate, because evidence is information for reckless imprudence resulting in physical injuries
required for a court to determine the proper rental value. But against Completo. The counter-charge of damage to property was
contrary to Corinthian's arguments, both the RTC and the CA found recommended dismissed.7
that indeed rent was due the Tanjangcos because they were
deprived of possession and use of their property. This uniform
The case was raffled to the Metropolitan Trial Court of Pasay City,
factual finding of the RTC and the CA was based on the evidence
Branch 45, where Albayda manifested his reservation to file a
presented below. Moreover, in Spouses Catungal v. Hao,43 we
separate civil action for damages against petitioners Completo and
considered the increase in the award of rentals as reasonable given
Abiad.8
the particular circumstances of each case. We noted therein that the
respondent denied the petitioners the benefits, including rightful
possession, of their property for almost a decade. Albayda alleged that the proximate cause of the incident which
necessitated his stay in the hospital for approximately seven (7)
months was the negligence of Completo who, at the time of the
Similarly, in the instant case, the Tanjangcos were deprived of
accident, was in the employ of Abiad. The pain he suffered required
possession and use of their property for more than two decades
him to undergo medical physiotherapy for a number of years to
through no fault of their own. Thus, we find no cogent reason to
regain normality of his left knee joint, and he claimed that he
disturb the monthly rental fixed by the CA.
incurred actual damages totaling Two Hundred Seventy-Six
Thousand Five Hundred Fifty Pesos (₱276,550.00), inclusive of his
All told, the CA committed no reversible error. anticipated operations.9

WHEREFORE, the petition is DENIED. The Decision of the Court of He further stated that aggravating the physical sufferings, mental
Appeals is AFFIRMED. Costs against petitioner. anguish, frights, serious anxiety, besmirched reputation, wounded
feelings, moral shock, and social humiliation resulting from his
SO ORDERED. injuries, his wife abandoned him in May 1998, and left their children
in his custody. He thus demanded the amount of Six Hundred
G.R. No. 172200 July 6, 2010 Thousand Pesos (₱600,000.00) as moral damages. He likewise asked
for exemplary damages in the amount of Two Hundred Thousand
Pesos (₱200,000.00) and attorney’s fees of Twenty-Five Thousand
40
Pesos (₱25,000.00), plus One Thousand Pesos (₱1,000.00) per court After the operation, Albayda attained functional range of motion,
appearance.10 but because of subsisting pain, they had to do osteoplasty20 of the
malunion, which was another operation. On cross-examination, Dr.
In his answer to the amended complaint, Completo alleged that, on Magtira testified that he rendered free medical service at AFPMC.21
August 27, 1997, he was carefully driving the taxicab along 8th
Street, VAB, when suddenly he heard a strange sound from the rear Albayda testified that he was thirty-six (36) years old and a soldier of
right side of the taxicab. When he stopped to investigate, he found the Armed Forces of the Philippines. On August 27, 1997, at around
Albayda lying on the road and holding his left leg. He immediately 1:40 p.m., he was riding his bike on his way to the office, located on
rendered assistance and brought Albayda to PAFGH for emergency 916 Street, VAB. He had to stop at the corner of 11th and 8th Streets
treatment.11 because an oncoming taxicab was moving fast. However, the taxicab
still bumped the front tire of his bike, hit his left knee and threw him
Completo also asserted that he was an experienced driver who, in off until he fell down on the road. The taxicab stopped about ten
accordance with traffic rules and regulations and common courtesy meters away, and then moved backwards. Its driver, Completo, just
to his fellow motorists, had already reduced his speed to twenty (20) stared at him. When somebody shouted to bring him to the hospital,
kilometers per hour even before reaching the intersection of 8th and two (2) persons, one of whom was Dr. Barrosa, helped him and
11th Streets. In contrast, Albayda rode his bicycle at a very high carried him into the taxicab driven by Completo, who brought him to
speed, causing him to suddenly lose control of the bicycle and hit PAFGH.22
the rear door on the right side of the taxicab.12
Upon examination, it was found that Albayda suffered fracture in his
The deep indentation on the rear right door of the taxicab was left knee and that it required an operation. No orthopedic doctor
caused by the impact of Albayda’s body that hit the taxicab after he was available at PAFGH. Thus, he was transferred that same
had lost control of the bicycle; while the slight indentation on the afternoon to AFPMC, where he was confined until February 11,
right front door of the taxicab was caused by the impact of the bike 1998.23
that hit the taxicab after Albayda let go of its handles when he had
lost control of it.13 At AFPMC, Albayda’s left leg was drilled on and attached to traction.
When his leg was drilled, it was so painful that he had to shout. After
Completo maintained that Albayda had no cause of action. The his release from the hospital, he continued to suffer pain in his leg.
accident and the physical injuries suffered by Albayda were caused He underwent reflexology and therapy which offered temporary
by his own negligence, and his purpose in filing the complaint was to relief from pain. But after some time, he had to undergo therapy
harass petitioners and unjustly enrich himself at their expense.14 and reflexology again.24

After submission of the parties’ respective pleadings, a pretrial On January 25, 1999, Albayda was readmitted at AFPMC and
conference was held. On December 8, 1998, the RTC issued a operated on. On June 24, 1999, he was operated on again. Wire and
pretrial order. Thereafter, trial on the merits ensued.15 screw were installed so that he could bend his knee. Nonetheless, he
continued to suffer pain. As of the date of his testimony in court, he
was scheduled for another operation in January 2000, when the
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito
steel that would be installed in his leg arrives.25
Barrosa, Jr. (Dr. Barrosa), Dr. Armando Sta. Ana, Jr., Dr. Ranny
Santiago, (Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr. Magtira)
as witnesses in open court.16 For his food, Albayda spent Thirty Pesos (₱30.00) each day during his
six (6) months of confinement; for his bed pan, One Thousand Pesos
(₱1,000.00); for his twice weekly reflexology, Three Hundred Pesos
On direct examination, Navarro testified that, on August 27, 1997, at
(₱300.00) every session since April 1997; for his caretaker, ₱300.00
around 1:45 p.m., he saw a taxicab, with Plate No. PYD-128, coming
per day for six months. He also asked for ₱600,000.00 in moral
from 11th Street, running at an unusual speed. The normal speed
damages because Completo did not lend him a helping hand, and he
should have been twenty-five (25) kilometers per hour. He was at
would be suffering deformity for the rest of his life. He demanded
the corner of 9th and 8th Streets when the taxicab passed by him.
₱25,000.00 as attorney’s fees and ₱1,000.00 for every court
The side of the bicycle was hit by the taxicab at the intersection of
appearance of his lawyer.26
11th and 8th Streets. He saw Albayda fall to the ground, grimacing in
pain. The taxicab at that moment was about ten (10) meters away
from Albayda. On cross-examination, Navarro reiterated that the On cross-examination, Albayda testified that, on the date of the
taxicab was running quite fast. The bicycle ridden by Albayda incident, he was the base guard at VAB, and his duty was from 2
reached the intersection of 8th and 11th Streets before the taxicab p.m. to 8 p.m. That afternoon, he was not in a hurry to go to his
hit it.17 place of work because it was only about 1:45 p.m., and his place of
work was only six (6) meters away. After the accident, he was
brought to PAFGH, and at 3:00 p.m., he was brought to the AFPMC.
Dr. Santiago, the orthopedic surgeon who treated Albayda when the
When he was discharged from the hospital, he could no longer
latter was admitted at AFPMC, testified that the cause of the injury
walk.27
was "hard impact," and recommended an operation to alleviate the
suffering. On cross-examination, he said that there was a separation
of the fragments of the proximal leg, the injured extremity, called Dr. Barrosa’s testimony during cross-examination emphasized that
levia. They placed the victim on knee traction or calcaneal he was with 2 other persons when he carried Albayda into the
traction,18 in order to avoid further swelling. They bore the taxicab driven by Completo. He was certain that it was not Completo
calcanean bone with a stainless steel pin so that they could put five who carried the victim into the taxicab. It was only a matter of
percent (5%) of the body weight of the patient to cool down the leg. seconds when he rushed to the scene of the accident. The taxicab
He treated Albayda for three (3) months. He recommended surgery, backed up fifteen (15) seconds later. Albayda lay 2 meters away
but the victim had other medical problems, like an increase in sugar from the corner of 8th and 11th Streets.28
level, and they were waiting for the availability of the implant. The
implant was supposed to be placed on the lateral aspect of the Completo, Abiad, and Benjamin Panican (Panican) testified for the
proximal leg or the levia, the part with the separation. It was a long defense.29
implant with screws.19
Completo alleged that he had been employed as taxi driver of FOJS
Dr. Magtira testified that Albayda was readmitted at AFPMC on Transport, owned by Abiad, since February 1997. On August 27,
January 25, 1999 because of complaints of pain and limitation of 1997, he was driving the taxicab, with Plate No. PYD-128, from 10:00
motion on the knee joint. Upon evaluation, the pain was caused by a.m. At around 1:45 p.m., he was on his way home when a bicycle
traumatic arthritis brought about by malunion of the lateral trivial bumped his taxicab at the intersection of 8th and 11th Streets, VAB.
condial. An operation of the soft tissue release was conducted for The bicycle was travelling from south to north, and he was going
him to mobilize his knee joint and attain proper range of motion.

41
east coming from the west. The bicycle was coming from 11th 5. the temperate and moral damages shall earn legal
Street, while he was travelling along 8th Street.30 interest at 6% per annum computed from the date of
promulgation of Our Decision;
On cross-examination, Completo testified that when Albayda hit the
rear right door of the taxicab, the latter fell to the ground. When he 6. upon finality of Our Decision, said moral and temperate
heard a noise, he immediately alighted from the taxicab. He denied damages shall earn legal interest at the rate of 12% per
that he stopped about 10 meters away from the place where annum, in lieu of 6% per annum, until full payment. Costs
Albayda fell. He carried Albayda and drove him to the hospital.31 against appellants.

Panican testified that he worked as an airconditioner technician in a SO ORDERED.38

shop located on 8th Street corner 11th Street. On the date and time
of the incident, he was working in front of the shop near the Hence, this petition.
roadside. He saw a bicycle bump the rear right side of the taxicab.
Then, the driver of the taxicab alighted, carried Albayda, and
The Issues
brought him to the hospital.32

Petitioners presented the following issues for resolution: (1)

When questioned by the trial court, Panican testified that the bicycle
whether the CA erred in finding that Completo was the one who
was running fast and that he saw it bump the taxicab. The taxicab
caused the collision;
already passed the intersection of 11th and 8th Streets when the
bicycle arrived.33
(2) whether Abiad failed to prove that he observed the diligence of a
good father of the family; and (3) whether the award of moral and
Abiad testified that, aside from being a soldier, he was also a
temperate damages and attorney’s fees to Albayda had no basis.39
franchise holder of taxicabs and passenger jeepneys. When
Completo applied as a driver of the taxicab, Abiad required the
former to show his bio-data, NBI clearance, and driver’s license. The Ruling of the Court
Completo never figured in a vehicular accident since the time he was
employed in February 1997. Abiad averred that Completo was a The petition is bereft of merit.
good driver and a good man. Being the operator of taxicab, Abiad
would wake up early and personally check all the taxicabs.34 I. On Negligence

On July 31, 2000, the trial court rendered a decision,35 the The issues raised by petitioners essentially delve into factual matters
dispositive portion of which reads: which were already passed upon by the RTC and the CA. Conclusions
and findings of fact of the trial court are entitled to great weight on
WHEREFORE, judgment is hereby rendered in favor of the plaintiff appeal and should not be disturbed unless for strong and cogent
[Albayda] and against the defendants [Completo and Abiad]. reasons, because the trial court is in a better position to examine
Accordingly, the defendants [Completo and Abiad] are hereby real evidence, as well as to observe the demeanor of the witnesses
ordered to pay the plaintiff [Albayda] the following sum: while testifying in the case. The fact that the CA adopted the
findings of fact of the trial court makes the same binding upon this
1. ₱46,000.00 as actual damages; Court. Well-settled is the rule that the Supreme Court is not a trier
of facts.40 To be sure, findings of fact of lower courts are deemed
conclusive and binding upon the Supreme Court, save only for clear
2. ₱400,000.00 as moral damages; [and]
and exceptional reasons,41 none of which is present in the case at
bar.
3. ₱25,000.00 as attorney’s fees.
The instant case involved a collision between a taxicab and a bicycle
Costs against the defendants [Completo and Abiad]. which resulted in serious physical injuries to the bicycle rider,
Albayda. It is a rule in negligence suits that the plaintiff has the
SO ORDERED.36 burden of proving by a preponderance of evidence the motorist’s
breach in his duty of care owed to the plaintiff, that the motorist
Completo and Abiad filed an appeal. The CA affirmed the trial court was negligent in failing to exercise the diligence required to avoid
with modification in a Decision37 dated January 2, 2006, viz.: injury to the plaintiff, and that such negligence was the proximate
cause of the injury suffered.42
WHEREFORE, premises considered, the appeal is DENIED for lack of
merit. The assailed Decision dated 31 July 2000 rendered by the Article 2176 of the Civil Code provides that whoever by act or
Regional Trial Court of Pasay City, Branch 117, in Civil Case No. 98- omission causes damage to another, there being fault or negligence,
1333 is hereby AFFIRMED with the following MODIFICATIONS: is obliged to pay for the damage done. Such fault or negligence, if
there is no preexisting contractual relation between the parties, is
called a quasi-delict. In this regard, the question of the motorist's
1. the award of Php 46,000.00 as actual damages is
negligence is a question of fact.
DELETED;

It was proven by a preponderance of evidence that Completo failed

2. temperate damages in the amount of Php 40,000.00 is
to exercise reasonable diligence in driving the taxicab because he
awarded in favor of appellee;
was over-speeding at the time he hit the bicycle ridden by Albayda.
Such negligence was the sole and proximate cause of the serious
3. moral damages in favor of appellee is REDUCED to Php physical injuries sustained by Albayda. Completo did not slow down
200,000.00; even when he approached the intersection of 8th and 11th Streets
of VAB. It was also proven that Albayda had the right of way,
4. appellants Redentor Completo and Elpidio Abiad are considering that he reached the intersection ahead of Completo.
solidarily liable to pay appellee Amando C. Albayda, Jr. said
temperate and moral damages, as well as the attorney’s The bicycle occupies a legal position that is at least equal to that of
fees in the amount of Php 25,000.00 awarded by the trial other vehicles lawfully on the highway, and it is fortified by the fact
court; that usually more will be required of a motorist than a bicyclist in
discharging his duty of care to the other because of the physical
advantages the automobile has over the bicycle.43

42
At the slow speed of ten miles per hour, a bicyclist travels almost medical expenses, loss of salary and wages, loss of capacity to earn
fifteen feet per second, while a car traveling at only twenty-five increased wages, cost of occupational therapy, and harm from
miles per hour covers almost thirty-seven feet per second, and split- conditions caused by prolonged immobilization. Temperate
second action may be insufficient to avoid an accident. It is obvious damages, more than nominal but less than compensatory damages,
that a motor vehicle poses a greater danger of harm to a bicyclist may be recovered when the court finds that some pecuniary loss has
than vice versa. Accordingly, while the duty of using reasonable care been suffered but its amount cannot, from the nature of the case,
falls alike on a motorist and a bicyclist, due to the inherent be proved with certainty.52 Temperate damages must be reasonable
differences in the two vehicles, more care is required from the under the circumstances.53 Thus, the Court finds the award of One
motorist to fully discharge the duty than from the bicyclist.44 Simply Hundred Thousand Pesos (₱100,000.00) as temperate damages
stated, the physical advantages that the motor vehicle has over the reasonable under the circumstances.
bicycle make it more dangerous to the bicyclist than vice versa.45
Doubtless, Albayda suffered immeasurable pain because of the
Under Article 2180 of the Civil Code, the obligation imposed by incident caused by petitioners’ negligence. The CA explained:
Article 2176 is demandable not only for one’s own acts or omissions,
but also for those persons for whom one is responsible. Employers The court vicariously feels the pain the plaintiff [Albayda] suffered a
shall be liable for the damages caused by their employees, but the number of times. After he was bumped by defendants’ cab, he cried
employers’ responsibility shall cease upon proof that they observed in pain. When the doctors bore holes into his left knee, he cried in
all the diligence of a good father of the family in the selection and pain. When he was tractioned, when he was subjected to an
supervision of their employees. operation after operation he suffered pain. When he took the
witness stand to testify, he walked with crutches, his left knee in
When an injury is caused by the negligence of an employee, a legal bandage, stiff and unfuctional. Pain was written [on] his face. He
presumption instantly arises that the employer was negligent. This does deserve moral damages.54
presumption may be rebutted only by a clear showing on the part of
the employer that he exercised the diligence of a good father of a Moral damages are awarded in quasi-delicts causing physical
family in the selection and supervision of his employee. If the injuries. The permanent deformity and the scar left by the wounds
employer successfully overcomes the legal presumption of suffered by Albayba will forever be a reminder of the pain and
negligence, he is relieved of liability. In other words, the burden of suffering that he had endured and continues to endure because of
proof is on the employer.46 petitioners’ negligence. Thus, the award of moral damages in the
amount of Five Hundred Thousand Pesos (₱500,000.00) is proper.
The trial court’s finding that Completo failed to exercise reasonable
care to avoid collision with Albayda at the intersection of 11th and Finally, an interest rate of six percent (6%) per annum is due on the
8th Streets of VAB gives rise to liability on the part of Completo, as amount of ₱100,000.00, as temperate damages, and ₱500,000.00,
driver, and his employer Abiad. The responsibility of two or more as moral damages, which we have awarded. The 6% per annum
persons who are liable for quasi-delict is solidary.47 The civil liability interest rate on the temperate and moral damages shall commence
of the employer for the negligent acts of his employee is also to run from the date of the promulgation of this Decision. Upon
primary and direct, owing to his own negligence in selecting and finality of the Decision, an interest rate of twelve percent (12%) per
supervising his employee.48 The civil liability of the employer annum shall be imposed on the amount of the temperate and moral
attaches even if the employer is not inside the vehicle at the time of damages until full payment thereof.55
the collision.49
The award of attorney’s fees is hereby deleted for failure to prove
In the selection of prospective employees, employers are required that petitioners acted in bad faith in refusing to satisfy respondent’s
to examine them as to their qualifications, experience, and service just and valid claim.
records. On the other hand, with respect to the supervision of
employees, employers should formulate standard operating
WHEREFORE, in view of the foregoing, the Decision dated January 2,
procedures, monitor their implementation, and impose disciplinary
2006 and the Resolution dated March 30, 2006 of the Court of
measures for breaches thereof. To establish these factors in a trial
Appeals in CA-G.R. CV No. 68405 are hereby AFFIRMED with
involving the issue of vicarious liability, employers must submit
MODIFICATION, viz.:
concrete proof, including documentary evidence.50

(1) The estate of the late Redentor Completo and Elpidio

Abiad testified that before he hired Completo, he required the latter
Abiad are solidarily liable to pay One Hundred Thousand
to show his bio-data, NBI clearance, and driver’s license. Abiad
Pesos (₱100,000.00), as temperate damages, and Five
likewise stressed that Completo was never involved in a vehicular
Hundred Thousand Pesos (₱500,000.00), as moral
accident prior to the instant case, and that, as operator of the
damages;
taxicab, he would wake up early to personally check the condition of
the vehicle before it is used.
(2) The temperate and moral damages hereby awarded
shall earn legal interest at the rate of six percent (6%) per
The protestation of Abiad to escape liability is short of the diligence
annum from the date of the promulgation of this Decision.
required under the law. Abiad’s evidence consisted entirely of
Upon finality of this Decision, an interest rate of twelve
testimonial evidence, and the unsubstantiated and self-serving
percent (12%) per annum shall be imposed on the amount
testimony of Abiad was insufficient to overcome the legal
of the temperate and moral damages until full payment
presumption that he was negligent in the selection and supervision
thereof.
of his driver.

Costs against petitioners.

II. On Damages

SO ORDERED.
The CA rightfully deleted the award of actual damages by the RTC
because Albayda failed to present documentary evidence to
establish with certainty the amount that he incurred during his
hospitalization and treatment for the injuries he suffered. In the
absence of stipulation, actual damages are awarded only for such
pecuniary loss suffered that was duly proved.51

While the amount of actual damages was not duly established with
certainty, the Court recognizes the fact that, indeed, Albayda
incurred a considerable amount for the necessary and reasonable

43
 year old student who died in a shooting incident inside the Top Gun
Firearms and Ammunitions Store (gun store) in Baguio City.
Respondent is the owner of the gun store.

The facts as found by the trial court are as follows:

On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a
first year student at the Baguio Colleges Foundation taking up BS
Computer Science, died due to a gunshot wound in the head which
he sustained while he was at the Top Gun Firearm[s] and
Ammunition[s] Store located at Upper Mabini Street, Baguio City.
The gun store was owned and operated by defendant Jerome
Jovanne Morales.

With Alfred Pacis at the time of the shooting were Aristedes Matibag
and Jason Herbolario. They were sales agents of the defendant, and
at that particular time, the caretakers of the gun store.

The bullet which killed Alfred Dennis Pacis was fired from a gun
brought in by a customer of the gun store for repair.

The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No.
SN-H34194 (Exhibit "Q"), was left by defendant Morales in a drawer
of a table located inside the gun store.

Defendant Morales was in Manila at the time. His employee

Armando Jarnague, who was the regular caretaker of the gun store
was also not around. He left earlier and requested sales agents
Matibag and Herbolario to look after the gun store while he and
defendant Morales were away. Jarnague entrusted to Matibag and
Herbolario a bunch of keys used in the gun store which included the
key to the drawer where the fatal gun was kept.

It appears that Matibag and Herbolario later brought out the gun
from the drawer and placed it on top of the table. Attracted by the
sight of the gun, the young Alfred Dennis Pacis got hold of the same.
Matibag asked Alfred Dennis Pacis to return the gun. The latter
followed and handed the gun to Matibag. It went off, the bullet
hitting the young Alfred in the head.

A criminal case for homicide was filed against Matibag before

branch VII of this Court. Matibag, however, was acquitted of the
charge against him because of the exempting circumstance of
"accident" under Art. 12, par. 4 of the Revised Penal Code.

By agreement of the parties, the evidence adduced in the criminal

case for homicide against Matibag was reproduced and adopted by
them as part of their evidence in the instant case.3

On 8 April 1998, the trial court rendered its decision in favor of

petitioners. The dispositive portion of the decision reads:

G.R. No. 169467 February 25, 2010

WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiffs [Spouses Alfredo P. Pacis and Cleopatra D.
ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners, Pacis] and against the defendant [Jerome Jovanne Morales] ordering
vs. JEROME JOVANNE MORALES, Respondent. the defendant to pay plaintiffs —

DECISION (1) ₱30,000.00 as indemnity for the death of Alfred Pacis;

(2) ₱29,437.65 as actual damages for the hospitalization
CARPIO, J.: and burial expenses incurred by the plaintiffs;
(3) ₱100,000.00 as compensatory damages;
The Case (4) ₱100,000.00 as moral damages;
(5) ₱50,000.00 as attorney’s fees.

This petition for review1 assails the 11 May 2005 Decision2 and the
19 August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. SO ORDERED.4
60669.
Respondent appealed to the Court of Appeals. In its Decision5 dated
The Facts 11 May 2005, the Court of Appeals reversed the trial court’s
Decision and absolved respondent from civil liability under Article
2180 of the Civil Code.6
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D.
Pacis (petitioners) filed with the trial court a civil case for damages
against respondent Jerome Jovanne Morales (respondent). Petitioners filed a motion for reconsideration, which the Court of
Petitioners are the parents of Alfred Dennis Pacis, Jr. (Alfred), a 17- Appeals denied in its Resolution dated 19 August 2005.

44
Hence, this petition. I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN
RENDERING THE DECISION AND RESOLUTION IN QUESTION IN
The Trial Court’s Ruling DISREGARD OF LAW AND JURISPRUDENCE BY REVERSING THE
ORDER OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO
CITY NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS AND
The trial court held respondent civilly liable for the death of Alfred
TESTIMONIES PRESENTED DURING THE TRIAL WHICH NEGATE AND
under Article 2180 in relation to Article 2176 of the Civil Code.7 The
CONTRADICT ITS FINDINGS.
trial court held that the accidental shooting of Alfred which caused
his death was partly due to the negligence of respondent’s
employee Aristedes Matibag (Matibag). Matibag and Jason II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR
Herbolario (Herbolario) were employees of respondent even if they IN RENDERING THE DECISION AND RESOLUTION IN QUESTION BY
were only paid on a commission basis. Under the Civil Code, DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
respondent is liable for the damages caused by Matibag on the PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE
occasion of the performance of his duties, unless respondent proved REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING
that he observed the diligence of a good father of a family to PETITIONER’S CLEAR RIGHTS TO THE AWARD OF DAMAGES. 9
prevent the damage. The trial court held that respondent failed to
observe the required diligence when he left the key to the drawer The Ruling of the Court
containing the loaded defective gun without instructing his
employees to be careful in handling the loaded gun. We find the petition meritorious.

The Court of Appeals’ Ruling This case for damages arose out of the accidental shooting of
petitioners’ son. Under Article 116110 of the Civil Code, petitioners
The Court of Appeals held that respondent cannot be held civilly may enforce their claim for damages based on the civil liability
liable since there was no employer-employee relationship between arising from the crime under Article 10011 of the Revised Penal Code
respondent and Matibag. The Court of Appeals found that Matibag or they may opt to file an independent civil action for damages
was not under the control of respondent with respect to the means under the Civil Code. In this case, instead of enforcing their claim for
and methods in the performance of his work. There can be no damages in the homicide case filed against Matibag, petitioners
employer-employee relationship where the element of control is opted to file an independent civil action for damages against
absent. Thus, Article 2180 of the Civil Code does not apply in this respondent whom they alleged was Matibag’s employer. Petitioners
case and respondent cannot be held liable. based their claim for damages under Articles 2176 and 2180 of the
Civil Code.
Furthermore, the Court of Appeals ruled that even if respondent is
considered an employer of Matibag, still respondent cannot be held Unlike the subsidiary liability of the employer under Article 10312 of
liable since no negligence can be attributed to him. As explained by the Revised Penal Code,13 the liability of the employer, or any person
the Court of Appeals: for that matter, under Article 2176 of the Civil Code is primary and
direct, based on a person’s own negligence. Article 2176 states:
Granting arguendo that an employer-employee relationship existed
between Aristedes Matibag and the defendant-appellant, we find Art. 2176. Whoever by act or omission causes damage to another,
that no negligence can be attributed to him. there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. relation between the parties, is called quasi-delict and is governed
809). The test of negligence is this: by the provisions of this Chapter.

"x x x. Could a prudent man, in the position of the person to whom This case involves the accidental discharge of a firearm inside a gun
negligence is attributed, foresee harm to the person injured as a store.1avvphi1 Under PNP Circular No. 9, entitled the "Policy on
reasonable consequence of the course about to be pursued? If so, Firearms and Ammunition Dealership/Repair," a person who is in the
the law imposes a duty on the actor to refrain from that course or business of purchasing and selling of firearms and ammunition must
take precaution against its mischievous results, and the failure to do maintain basic security and safety requirements of a gun dealer,
so constitutes negligence. x x x." otherwise his License to Operate Dealership will be suspended or
canceled.14
Defendant-appellant maintains that he is not guilty of negligence
and lack of due care as he did not fail to observe the diligence of a Indeed, a higher degree of care is required of someone who has in
good father of a family. He submits that he kept the firearm in one his possession or under his control an instrumentality extremely
of his table drawers, which he locked and such is already an dangerous in character, such as dangerous weapons or substances.
indication that he took the necessary diligence and care that the said Such person in possession or control of dangerous instrumentalities
gun would not be accessible to anyone. He puts [sic] that his store is has the duty to take exceptional precautions to prevent any injury
engaged in selling firearms and ammunitions. Such items which are being done thereby.15 Unlike the ordinary affairs of life or business
per se dangerous are kept in a place which is properly secured in which involve little or no risk, a business dealing with dangerous
order that the persons coming into the gun store would not be able weapons requires the exercise of a higher degree of care.
to take hold of it unless it is done intentionally, such as when a
customer is interested to purchase any of the firearms, ammunitions As a gun store owner, respondent is presumed to be knowledgeable
and other related items, in which case, he may be allowed to handle about firearms safety and should have known never to keep a
the same. loaded weapon in his store to avoid unreasonable risk of harm or
injury to others. Respondent has the duty to ensure that all the guns
We agree. Much as We sympathize with the family of the deceased, in his store are not loaded. Firearms should be stored unloaded and
defendant-appellant is not to be blamed. He exercised due diligence separate from ammunition when the firearms are not needed for
in keeping his loaded gun while he was on a business trip in Manila. ready-access defensive use.16 With more reason, guns accepted by
He placed it inside the drawer and locked it. It was taken away the store for repair should not be loaded precisely because they are
without his knowledge and authority. Whatever happened to the defective and may cause an accidental discharge such as what
deceased was purely accidental.8 happened in this case. Respondent was clearly negligent when he
accepted the gun for repair and placed it inside the drawer without
ensuring first that it was not loaded. In the first place, the defective
The Issues
gun should have been stored in a vault. Before accepting the
defective gun for repair, respondent should have made sure that it
Petitioners raise the following issues: was not loaded to prevent any untoward accident. Indeed,
respondent should never accept a firearm from another person,

45
until the cylinder or action is open and he has personally checked or thirty brass fulminating caps scattered on the ground. These caps
that the weapon is completely unloaded. 17 For failing to insure that are approximately of the size and appearance of small pistol
the gun was not loaded, respondent himself was negligent. cartridges and each has attached to it two long thin wires by means
Furthermore, it was not shown in this case whether respondent had of which it may be discharged by the use of electricity. They are
a License to Repair which authorizes him to repair defective firearms intended for use in the explosion of blasting charges of dynamite,
to restore its original composition or enhance or upgrade firearms.18 and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take
Clearly, respondent did not exercise the degree of care and diligence them, the boys picked up all they could find, hung them on stick, of
required of a good father of a family, much less the degree of care which each took end, and carried them home. After crossing the
required of someone dealing with dangerous weapons, as would footbridge, they met a little girl named Jessie Adrian, less than 9
exempt him from liability in this case. 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
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May
result. They next tried to break the cap with a stone and failed.
2005 Decision and the 19 August 2005 Resolution of the Court of
Manuel looked for a hammer, but could not find one. Then they
Appeals in CA-G.R. CV No. 60669. We REINSTATE the trial court’s
opened one of the caps with a knife, and finding that it was filled
Decision dated 8 April 1998.
with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion
SO ORDERED. 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
G.R. No. L-4977 March 22, 1910 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
DAVID TAYLOR, plaintiff-appellee,
that at or about the time when these caps were found, similarly caps
vs.THE MANILA ELECTRIC RAILROAD AND LIGHT
were in use in the construction of an extension of defendant's street
COMPANY, defendant-appellant.
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
W. H. Lawrence, for appellant. time, and from the place where they were found would seem to
W. L. Wright, for appellee. have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
CARSON, J.:
No measures seems to have been adopted by the defendant
An action to recover damages for the loss of an eye and other company to prohibit or prevent visitors from entering and walking
injuries, instituted by David Taylor, a minor, by his father, his nearest about its premises unattended, when they felt disposed so to do. As
relative. admitted in defendant counsel's brief, "it is undoubtedly true that
children in their play sometimes crossed the foot bridge to the
The defendant is a foreign corporation engaged in the operation of a islands;" and, we may add, roamed about at will on the uninclosed
street railway and an electric light system in the city of Manila. Its premises of the defendant, in the neighborhood of the place where
power plant is situated at the eastern end of a small island in the the caps were found. There is evidence that any effort ever was
Pasig River within the city of Manila, known as the Isla del Provisor. made to forbid these children from visiting the defendant company's
The power plant may be reached by boat or by crossing a premises, although it must be assumed that the company or its
footbridge, impassable for vehicles, at the westerly end of the employees were aware of the fact that they not infrequently did so.
island.
Two years before the accident, plaintiff spent four months at sea, as
The plaintiff, David Taylor, was at the time when he received the a cabin boy on one of the interisland transports. Later he took up
injuries complained of, 15 years of age, the son of a mechanical work in his father's office, learning mechanical drawing and
engineer, more mature than the average boy of his age, and having mechanical engineering. About a month after his accident he
considerable aptitude and training in mechanics. 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
On the 30th of September, 1905, plaintiff, with a boy named Manuel
and more mature both mentally and physically than most boys of
Claparols, about 12 years of age, crossed the footbridge to the Isla
fifteen.
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 The facts set out in the foregoing statement are to our mind fully
quarters, the boys, impelled apparently by youthful curiosity and and conclusively established by the evidence of record, and are
perhaps by the unusual interest which both seem to have taken in substantially admitted by counsel. The only questions of fact which
machinery, spent some time in wandering about the company's are seriously disputed are plaintiff's allegations that the caps which
premises. The visit was made on a Sunday afternoon, and it does not were found by plaintiff on defendant company's premises were the
appear that they saw or spoke to anyone after leaving the power property of the defendant, or that they had come from its
house where they had asked for Mr. Murphy. 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.
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 The evidence in support of these allegations is meager, and the
cinders and ashes from its furnaces. Here they found some twenty defendant company, apparently relying on the rule of law which

46
places the burden of proof of such allegations upon the plaintiff, ART. 1902 A person who by an act or omission causes
offered no evidence in rebuttal, and insists that plaintiff failed in his damage to another when there is fault or negligence shall
proof. We think, however, that plaintiff's evidence is sufficient to be obliged to repair the damage so done.
sustain a finding in accord with his allegations in this regard.
ART. 1903 The obligation imposed by the preceding article
It was proven that caps, similar to those found by plaintiff, were is demandable, not only for personal acts and omissions,
used, more or less extensively, on the McKinley extension of the but also for those of the persons for whom they should be
defendant company's track; that some of these caps were used in responsible.
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 The father, and on his death or incapacity the mother, is
company has a storehouse for the materials, supplies and so forth, liable for the damages caused by the minors who live with
used by it in its operations as a street railway and a purveyor of them.
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
xxx xxx xxx
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 Owners or directors of an establishment or enterprise are
under all the circumstances, and in the absence of all evidence to equally liable for damages caused by their employees in
the contrary, we think that the discovery of twenty or thirty of these the service of the branches in which the latter may be
caps at the place where they were found by the plaintiff on employed or on account of their duties.
defendant's premises fairly justifies the inference that the defendant
company was either the owner of the caps in question or had the xxx xxx xxx
caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were The liability referred to in this article shall cease when the
willfully and knowingly thrown by the company or its employees at persons mentioned therein prove that they employed all
the spot where they were found, with the expectation that they the diligence of a good father of a family to avoid the
would be buried out of the sight by the ashes which it was engaged damage.
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 ART. 1908 The owners shall also be liable for the damage
of its employees either willfully or through an oversight left them caused —
exposed at a point on its premises which the general public,
including children at play, where not prohibited from visiting, and 1 By the explosion of machines which may not have been
over which the company knew or ought to have known that young cared for with due diligence, and for kindling of explosive
boys were likely to roam about in pastime or in play. substances which may not have been placed in a safe and
proper place.
Counsel for appellant endeavors to weaken or destroy the probative
value of the facts on which these conclusions are based by Counsel for the defendant and appellant rests his appeal strictly
intimidating or rather assuming that the blasting work on the upon his contention that the facts proven at the trial do not
company's well and on its McKinley extension was done by established the liability of the defendant company under the
contractors. It was conclusively proven, however, that while the provisions of these articles, and since we agree with this view of the
workman employed in blasting the well was regularly employed by J. case, it is not necessary for us to consider the various questions as to
G. White and Co., a firm of contractors, he did the work on the well form and the right of action (analogous to those raised in the case of
directly and immediately under the supervision and control of one of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which
defendant company's foremen, and there is no proof whatever in would, perhaps, be involved in a decision affirming the judgment of
the record that the blasting on the McKinley extension was done the court below.
by independent contractors. Only one witness testified upon this
point, and while he stated that he understood that a part of this We agree with counsel for appellant that under the Civil Code, as
work was done by contract, he could not say so of his own under the generally accepted doctrine in the United States, the
knowledge, and knew nothing of the terms and conditions of the plaintiff in an action such as that under consideration, in order to
alleged contract, or of the relations of the alleged contractor to the establish his right to a recovery, must establish by competent
defendant company. The fact having been proven that detonating evidence:
caps were more or less extensively employed on work done by the
defendant company's directions and on its behalf, we think that the
(1) Damages to the plaintiff.
company should have introduced the necessary evidence to support
(2) Negligence by act or omission of which defendant
its contention if it wished to avoid the not unreasonable inference
personally, or some person for whose acts it must
that it was the owner of the material used in these operations and
respond, was guilty.
that it was responsible for tortious or negligent acts of the agents
(3) The connection of cause and effect between the
employed therein, on the ground that this work had been intrusted
negligence and the damage.
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 These proposition are, of course, elementary, and do not admit of
by counsel, it was a very simple matter for it to prove that fact, and discussion, the real difficulty arising in the application of these
in the absence of such proof we think that the other evidence in the principles to the particular facts developed in the case under
record sufficiently establishes the contrary, and justifies the court in consideration.
drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found by It is clear that the accident could not have happened and not the
the company or some of its employees. fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in
Plaintiff appears to have rested his case, as did the trial judge his an appropriate place; but it is equally clear that plaintiff would not
decision in plaintiff's favor, upon the provisions of article 1089 of the have been injured had he not, for his own pleasure and
Civil Code read together with articles 1902, 1903, and 1908 of that convenience, entered upon the defendant's premises, and strolled
code. 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
ART. 1089 Obligations are created by law, by contracts, by
thereafter deliberately cut open one of the caps and applied a match
quasi-contracts, and illicit acts and omissions or by those
to its contents.
in which any kind of fault or negligence occurs.
47
But counsel for plaintiff contends that because of plaintiff's youth On the other hand, many if not most of the courts of last resort in
and inexperience, his entry upon defendant company's premises, the United States, citing and approving the doctrine laid down in
and the intervention of his action between the negligent act of England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36),
defendant in leaving the caps exposed on its premises and the lay down the rule in these cases in accord with that announced in
accident which resulted in his injury should not be held to have the Railroad Company vs. Stout (supra), and the Supreme Court of
contributed in any wise to the accident, which should be deemed to the United States, in a unanimous opinion delivered by Justice
be the direct result of defendant's negligence in leaving the caps Harlan in the case of Union Pacific Railway Co. vs. McDonal and
exposed at the place where they were found by the plaintiff, and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and
this latter the proximate cause of the accident which occasioned the after an exhaustive and critical analysis and review of many of the
injuries sustained by him. adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs.
In support of his contention, counsel for plaintiff relies on the Stout."
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, In the case of Union Pacific Railway Co. vs. MacDonald (supra) the
and the cases based thereon. 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
In a typical cases, the question involved has been whether a railroad defendant's premises, without defendant's express permission or
company is liable for an injury received by an infant of tender years, invitation, and while there, was by accident injured by falling into a
who from mere idle curiosity, or for the purposes of amusement, burning slack pile of whose existence he had no knowledge, but
enters upon the railroad company's premises, at a place where the which had been left by defendant on its premises without any fence
railroad company knew, or had good reason to suppose, children around it or anything to give warning of its dangerous condition,
would be likely to come, and there found explosive signal torpedoes although defendant knew or had reason the interest or curiosity of
left unexposed by the railroad company's employees, one of which passers-by. On these facts the court held that the plaintiff could not
when carried away by the visitor, exploded and injured him; or be regarded as a mere trespasser, for whose safety and protection
where such infant found upon the premises a dangerous machine, while on the premises in question, against the unseen danger
such as a turntable, left in such condition as to make it probable that referred to, the defendant was under no obligation to make
children in playing with it would be exposed to accident or injury provision.
therefrom and where the infant did in fact suffer injury in playing
with such machine. We quote at length from the discussion by the court of the
application of the principles involved to the facts in that case,
In these, and in great variety of similar cases, the great weight of because what is said there is strikingly applicable in the case at bar,
authority holds the owner of the premises liable. 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
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657),
which would not have resulted but for the entry of plaintiff on
wherein the principal question was whether a railroad company was
defendant's premises.
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 We adhere to the principles announced in Railroad Co. vs.
company), the principles on which these cases turn are that "while a Stout (supra). Applied to the case now before us, they
railroad company is not bound to the same degree of care in regard require us to hold that the defendant was guilty of
to mere strangers who are unlawfully upon its premises that it owes negligence in leaving unguarded the slack pile, made by it
to passengers conveyed by it, it is not exempt from responsibility to in the vicinity of its depot building. It could have forbidden
such strangers for injuries arising from its negligence or from its all persons from coming to its coal mine for purposes
tortious acts;" and that "the conduct of an infant of tender years is merely of curiosity and pleasure. But it did not do so. On
not to be judged by the same rule which governs that of adult. While the contrary, it permitted all, without regard to age, to
it is the general rule in regard to an adult that to entitle him to visit its mine, and witness its operation. It knew that the
recover damages for an injury resulting from the fault or negligence usual approach to the mine was by a narrow path skirting
of another he must himself have been free from fault, such is not its slack pit, close to its depot building, at which the people
the rule in regard to an infant of tender years. The care and caution of the village, old and young, would often assemble. It
required of a child is according to his maturity and capacity only, and knew that children were in the habit of frequenting that
this is to be determined in each case by the circumstances of the locality and playing around the shaft house in the
case." 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
The doctrine of the case of Railroad Company vs. Stout was
surface of which was concealed (except when snow, wind,
vigorously controverted and sharply criticized in several state courts,
or rain prevailed) a mass of burning coals into which a
and the supreme court of Michigan in the case of Ryan vs.
child might accidentally fall and be burned to death. Under
Towar (128 Mich., 463) formally repudiated and disapproved the
all the circumstances, the railroad company ought not to
doctrine of the Turntable cases, especially that laid down in Railroad
be heard to say that the plaintiff, a mere lad, moved by
Company vs. Stout, in a very able decision wherein it held, in the
curiosity to see the mine, in the vicinity of the slack pit,
language of the syllabus: (1) That the owner of the land is not liable
was a trespasser, to whom it owed no duty, or for whose
to trespassers thereon for injuries sustained by them, not due to his
protection it was under no obligation to make provisions.
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 In Townsend vs. Wathen (9 East, 277, 281) it was held that
license to cross the premises of another can not be predicated on if a man dangerous traps, baited with flesh, in his own
the mere fact that no steps have been taken to interfere with such ground, so near to a highway, or to the premises of
practice; (4) that there is no difference between children and adults another, that dogs passing along the highway, or kept in
as to the circumstances that will warrant the inference of an his neighbors premises, would probably be attracted by
invitation or a license to enter upon another's premises. 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
Similar criticisms of the opinion in the case of Railroad Company vs.
difference," said Lord Ellenborough, C.J., "is there in
Stout were indulged in by the courts in Connecticut and
reason between drawing the animal into the trap by
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
means of his instinct which he can not resist, and putting
349). And the doctrine has been questioned in Wisconsin,
him there by manual force?" What difference, in reason
Pennsylvania, New Hampshire, and perhaps in other States.
we may observe in this case, is there between an express
license to the children of this village to visit the
48
 defendant's coal mine, in the vicinity of its slack pile, and unnecessary danger at the whim of the owners or occupants of land
an implied license, resulting from the habit of the upon which they might naturally and reasonably be expected to
defendant to permit them, without objection or warning, enter.
to do so at will, for purposes of curiosity or pleasure?
Referring it the case of Townsend vs. Wathen, Judge This conclusion is founded on reason, justice, and necessity, and
Thompson, in his work on the Law of Negligence, volume neither is contention that a man has a right to do what will with his
1, page 305, note, well says: "It would be a barbarous rule own property or that children should be kept under the care of their
of law that would make the owner of land liable for setting parents or guardians, so as to prevent their entering on the premises
a trap thereon, baited with stinking meat, so that his of others is of sufficient weight to put in doubt. In this jurisdiction as
neighbor's dog attracted by his natural instinct, might run well as in the United States all private property is acquired and held
into it and be killed, and which would exempt him from under the tacit condition that it shall not be so used as to injure the
liability for the consequence of leaving exposed and equal rights and interests of the community (see U. S. vs.
unguarded on his land a dangerous machine, so that his Toribio,1 No. 5060, decided January 26, 1910), and except as to
neighbor's child attracted to it and tempted to infants of very tender years it would be absurd and unreasonable in
intermeddle with it by instincts equally strong, might a community organized as is that in which we lived to hold that
thereby be killed or maimed for life." parents or guardian are guilty of negligence or imprudence in every
case wherein they permit growing boys and girls to leave the
Chief Justice Cooley, voicing the opinion of the supreme court of parental roof unattended, even if in the event of accident to the
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that child the negligence of the parent could in any event be imputed to
(p. 515): the child so as to deprive it a right to recover in such cases — a point
which we neither discuss nor decide.
Children, wherever they go, must be expected to act upon
childlike instincts and impulses; and others who are But while we hold that the entry of the plaintiff upon defendant's
chargeable with a duty of care and caution toward them property without defendant's express invitation or permission would
must calculate upon this, and take precautions not have relieved defendant from responsibility for injuries incurred
accordingly. If they leave exposed to the observation of there by plaintiff, without other fault on his part, if such injury were
children anything which would be tempting to them, and attributable to the negligence of the defendant, we are of opinion
which they in their immature judgment might naturally that under all the circumstances of this case the negligence of the
suppose they were at liberty to handle or play with, they defendant in leaving the caps exposed on its premises was not the
should expect that liberty to be taken. proximate cause of the injury received by the plaintiff, which
therefore was not, properly speaking, "attributable to the
And the same eminent jurist in his treatise or torts, alluding to the negligence of the defendant," and, on the other hand, we are
doctrine of implied invitation to visit the premises of another, says: 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,
In the case of young children, and other persons not
and that the defendant, therefore is not civilly responsible for the
fully sui juris, an implied license might sometimes arise
injuries thus incurred.
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 Plaintiff contends, upon the authority of the Turntable and Torpedo
equivalent to an invitation to them to make use of it; and, cases, that because of plaintiff's youth the intervention of his action
perhaps, if one were to throw away upon his premises, between the negligent act of the defendant in leaving the caps
near the common way, things tempting to children, the exposed on its premises and the explosion which resulted in his
same implication should arise. (Chap. 10, p. 303.) 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
The reasoning which led the Supreme Court of the United States to
cases, that we have thought proper to discuss and to consider that
its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union
doctrine at length in this decision. As was said in case of Railroad Co.
Pacific Railroad Co. vs. McDonald (supra) is not less cogent and
vs. Stout (supra), "While it is the general rule in regard to an adult
convincing in this jurisdiction than in that wherein those cases
that to entitle him to recover damages for an injury resulting from
originated. Children here are actuated by similar childish instincts
the fault or negligence of another he must himself have been free
and impulses. Drawn by curiosity and impelled by the restless spirit
from fault, such is not the rule in regard to an infant of tender years.
of youth, boys here as well as there will usually be found whenever
The care and caution required of a child is according to his maturity
the public is permitted to congregate. The movement of machinery,
and capacity only, and this is to be determined in each case by the
and indeed anything which arouses the attention of the young and
circumstances of the case." As we think we have shown, under the
inquiring mind, will draw them to the neighborhood as inevitably as
reasoning on which rests the doctrine of the Turntable and Torpedo
does the magnet draw the iron which comes within the range of its
cases, no fault which would relieve defendant of responsibility for
magnetic influence. The owners of premises, therefore, whereon
injuries resulting from its negligence can be attributed to the
things attractive to children are exposed, or upon which the public
plaintiff, a well-grown boy of 15 years of age, because of his entry
are expressly or impliedly permitted to enter or upon which the
upon defendant's uninclosed premises without express permission
owner knows or ought to know children are likely to roam about for
or invitation' but it is wholly different question whether such youth
pastime and in play, " must calculate upon this, and take precautions
can be said to have been free from fault when he willfully and
accordingly." In such cases the owner of the premises can not be
deliberately cut open the detonating cap, and placed a match to the
heard to say that because the child has entered upon his premises
contents, knowing, as he undoubtedly did, that his action would
without his express permission he is a trespasser to whom the
result in an explosion. On this point, which must be determined by
owner owes no duty or obligation whatever. The owner's failure to
"the particular circumstances of this case," the doctrine laid down in
take reasonable precautions to prevent the child from entering his
the Turntable and Torpedo cases lends us no direct aid, although it is
premises at a place where he knows or ought to know that children
worthy of observation that in all of the "Torpedo" and analogous
are accustomed to roam about of to which their childish instincts
cases which our attention has been directed, the record discloses
and impulses are likely to attract them is at least equivalent to an
that the plaintiffs, in whose favor judgments have been affirmed,
implied license to enter, and where the child does enter under such
were of such tender years that they were held not to have the
conditions the owner's failure to take reasonable precautions to
capacity to understand the nature or character of the explosive
guard the child against injury from unknown or unseen dangers,
instruments which fell into their hands.
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 In the case at bar, plaintiff at the time of the accident was a well-
his express invitation or permission. To hold otherwise would be grown youth of 15, more mature both mentally and physically than
expose all the children in the community to unknown perils and 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
49
the injury was incurred; and the record discloses throughout that he The rule of the Roman law was: Quod quis ex culpa sua damnum
was exceptionally well qualified to take care of himself. The sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
evidence of record leaves no room for doubt that, despite his
denials on the witness stand, he well knew the explosive character The Patidas contain the following provisions:
of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as
The just thing is that a man should suffer the damage
described by the little girl who was present, admit of no other
which comes to him through his own fault, and that he can
explanation. His attempt to discharge the cap by the use of
not demand reparation therefor from another. (Law 25,
electricity, followed by his efforts to explode it with a stone or a
tit. 5, Partida 3.)
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 And they even said that when a man received an injury
doubt that he had reason to anticipate that the explosion might be through his own acts the grievance should be against
dangerous, in view of the fact that the little girl, 9 years of age, who himself and not against another. (Law 2, tit. 7, Partida 2.)
was within him at the time when he put the match to the contents
of the cap, became frightened and ran away. According to ancient sages, when a man received an injury
through his own acts the grievance should be against
True, he may not have known and probably did not know the precise himself and not against another. (Law 2, tit. 7 Partida 2.)
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 And while there does not appear to be anything in the Civil Code
resultant injuries which he incurred; but he well knew that a more or which expressly lays down the law touching contributory negligence
less dangerous explosion might be expected from his act, and yet he in this jurisdiction, nevertheless, the interpretation placed upon its
willfully, recklessly, and knowingly produced the explosion. It would provisions by the supreme court of Spain, and by this court in the
be going far to say that "according to his maturity and capacity" he case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359),
exercised such and "care and caution" as might reasonably be clearly deny to the plaintiff in the case at bar the right to recover
required of him, or that defendant or anyone else should be held damages from the defendant, in whole or in part, for the injuries
civilly responsible for injuries incurred by him under such sustained by him.
circumstances.
The judgment of the supreme court of Spain of the 7th of March,
The law fixes no arbitrary age at which a minor can be said to have 1902 (93 Jurisprudencia Civil, 391), is directly in point. In that case
the necessary capacity to understand and appreciate the nature and the court said:
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 According to the doctrine expressed in article 1902 of the
such acts; and indeed it would be impracticable and perhaps Civil Code, fault or negligence is a source of obligation
impossible so to do, for in the very nature of things the question of when between such negligence and the injury there exists
negligence necessarily depends on the ability of the minor to the relation of cause and effect; but if the injury produced
understand the character of his own acts and their consequences; should not be the result of acts or omissions of a third
and the age at which a minor can be said to have such ability will party, the latter has no obligation to repair the same,
necessarily depends of his own acts and their consequences; and at although such acts or omission were imprudent or
the age at which a minor can be said to have such ability will unlawful, and much less when it is shown that the
necessarily vary in accordance with the varying nature of the infinite immediate cause of the injury was the negligence of the
variety of acts which may be done by him. But some idea of the injured party himself.
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 The same court, in its decision of June 12, 1900, said that "the
exercising certain rights and incurring certain responsibilities, existence of the alleged fault or negligence is not sufficient without
though it can not be said that these provisions of law are of much proof that it, and no other cause, gave rise to the damage."
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 See also judgment of October 21, 1903.
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 To similar effect Scaevola, the learned Spanish writer,
age is presumed to be capable of committing a crime and is to held writing under that title in his Jurisprudencia del Codigo
criminally responsible therefore, although the fact that he is less Civil (1902 Anuario, p. 455), commenting on the decision
than eighteen years of age will be taken into consideration as an of March 7, 1902 of the Civil Code, fault or negligence
extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of gives rise to an obligation when between it and the
age a child may, under certain circumstances, choose which parent it damage there exists the relation of cause and effect; but if
prefers to live with (Code of Civil Procedure, sec. 771). At 14 may the damage caused does not arise from the acts or
petition for the appointment of a guardian (Id., sec. 551), and may omissions of a third person, there is no obligation to make
consent or refuse to be adopted (Id., sec. 765). And males of 14 and good upon the latter, even though such acts or omissions
females of 12 are capable of contracting a legal marriage (Civil Code, be imprudent or illegal, and much less so when it is shown
art. 83; G. O., No. 68, sec. 1). that the immediate cause of the damage has been the
recklessness of the injured party himself.
We are satisfied that the plaintiff in this case had sufficient capacity
and understanding to be sensible of the danger to which he exposed And again —
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
In accordance with the fundamental principle of proof,
him to understand and appreciate the necessity for the exercise of
that the burden thereof is upon the plaintiff, it is apparent
that degree of caution which would have avoided the injury which
that it is duty of him who shall claim damages to establish
resulted from his own deliberate act; and that the injury incurred by
their existence. The decisions of April 9, 1896, and March
him must be held to have been the direct and immediate result of
18, July, and September 27, 1898, have especially
his own willful and reckless act, so that while it may be true that
supported the principle, the first setting forth in detail the
these injuries would not have been incurred but for the negligence
necessary points of the proof, which are two: An act or
act of the defendant in leaving the caps exposed on its premises,
omission on the part of the person who is to be charged
nevertheless plaintiff's own act was the proximate and principal
with the liability, and the production of the damage by
cause of the accident which inflicted the injury.
said act or omission.

50
 This includes, by inference, the establishment of a relation trifles," a youth of the age and maturity of plaintiff should be
of cause or effect between the act or omission and the deemed without fault in picking up the caps in question under all the
damage; the latter must be the direct result of one of the circumstances of this case, we neither discuss nor decide.
first two. As the decision of March 22, 1881, said, it is
necessary that the damages result immediately and Twenty days after the date of this decision let judgment be entered
directly from an act performed culpably and wrongfully; reversing the judgment of the court below, without costs to either
"necessarily presupposing a legal ground for imputability." party in this instance, and ten days thereafter let the record be
(Decision of October 29, 1887.) returned to the court wherein it originated, where the judgment will
be entered in favor of the defendant for the costs in first instance
Negligence is not presumed, but must be proven by him and the complaint dismissed without day. So ordered.
who alleges it. (Scavoela, Jurisprudencia del Codigo
Civil, vol. 6, pp. 551-552.) G.R. No. L-32611 November 3, 1930

(Cf. decisions of supreme court of Spain of June 12, 1900, and June CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,
23, 1900.) vs. PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Finally we think the doctrine in this jurisdiction applicable to the Gibbs and McDonough for appellant.
case at bar was definitely settled in this court in the maturely Benj. S. Ohnick for appellee.
considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury
STREET, J.:
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, This action was instituted in the Court of First Instance of Manila by
stated in Alcubilla's Index of that year); none of the cases decided by the Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering
the supreme court of Spain "define the effect to be given the from the Philippine Motors Corporation the sum of P11,350, with
negligence of its causes, though not the principal one, and we are interest and costs. Upon hearing the cause the trial court gave
left to seek the theory of the civil law in the practice of other judgment in favor of the plaintiff to recover of the defendant the
countries;" and in such cases we declared that law in this jurisdiction sum of P9,850, with interest at 6 per centum per annum from March
to require the application of "the principle of proportional 24,1927, the date of the filing of the complaint, until satisfaction of
damages," but expressly and definitely denied the right of recovery the judgment, with costs. From this judgment the defendant
when the acts of the injured party were the immediate causes of the appealed.
accident.
The plaintiff and defendant are domestic corporations; and at the
The doctrine as laid down in that case is as follows: 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
Difficulty seems to be apprehended in deciding which acts
schooner Gwendoline, which was used in the fishing trade in the
of the injured party shall be considered immediate causes
Philippine Islands. In January, 1925, Cranston decided, if practicable,
of the accident. The test is simple. Distinction must be
to have the engine on the Gwendoline changed from a gasoline
made between the accident and the injury, between the
consumer to a crude oil burner, expecting thereby to effect
event itself, without which there could have been no
economy in the cost of running the boat. He therefore made known
accident, and those acts of the victim not entering into it,
his desire to McLeod & Co., a firm dealing in tractors, and was told
independent of it, but contributing to his own proper hurt.
by Mc Kellar, of said company, that he might make inquiries of the
For instance, the cause of the accident under review was
Philippine Motors Corporations, which had its office on Ongpin
the displacement of the crosspiece or the failure to replace
Street, in the City of Manila. Cranston accordingly repaired to the
it. This produces the event giving occasion for damages—
office of the Philippine Motors Corporation and had a conference
that is, the sinking of the track and the sliding of the iron
with C.E. Quest, its manager, who agreed to do the job, with the
rails. To this event, the act of the plaintiff in walking by the
understanding that payment should be made upon completion of
side of the car did not contribute, although it was an
the work.
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 The Philippine Motors Corporation was at this time engaged in
determining causes of the event or accident, for which he business as an automobile agency, but, under its charter, it had
would have been responsible. Where he contributes to the authority to deal in all sorts of machinery engines and motors, as
principal occurrence, as one of its determining factors, he well as to build, operate, buy and sell the same and the equipment
can not recover. Where, in conjunction with the therof. Quest, as general manager, had full charge of the
occurrence, he contributes only to his own injury, he may corporations in all its branches.
recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a As a result of the aforesaid interview, Quest, in company with
suitable equivalent for his own imprudence. 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
We think it is quite clear that under the doctrine thus stated, the and conducted under the supervision of Quest, chiefly by a
immediate cause of the explosion, the accident which resulted in mechanic whom Quest took with him to the boat. In this work Quest
plaintiff's injury, was in his own act in putting a match to the had the assistance of the members of the crew of the Gwendoline,
contents of the cap, and that having "contributed to the principal who had been directed by Cranston to place themselves under
occurrence, as one of its determining factors, he can not recover." Quest's directions.

We have not deemed it necessary to examine the effect of plaintiff's Upon preliminary inspection of the engine, Quest came to the
action in picking up upon defendant's premises the detonating caps, conclusion that the principal thing necessary to accomplish the end
the property of defendant, and carrying the relation of cause and in view was to install a new carburetor, and a Zenith carburetor was
effect between the negligent act or omission of the defendant in chosen as the one most adapted to the purpose. After this appliance
leaving the caps exposed on its premises and the injuries inflicted had been installed, the engine was tried with gasoline as a fuel,
upon the plaintiff by the explosion of one of these caps. Under the supplied from the tank already in use. The result of this experiment
doctrine of the Torpedo cases, such action on the part of an infant of was satisfactory. The next problem was to introduce into the
very tender years would have no effect in relieving defendant of carburetor the baser fuel, consisting of a low grade of oil mixed with
responsibility, but whether in view of the well-known fact admitted distillate. For this purpose a temporary tank to contain the mixture
in defendant's brief that "boys are snappers-up of unconsidered was placed on deck above and at a short distance from the
51
compartment covering the engine. This tank was connected with the one ordinarily expert in repairing gasoline engines on boats. There
carburetor by a piece of tubing, which was apparently not well fitted was here, in our opinion, on the part of Quest, a blameworthy
at the point where it was connected with the tank. Owing to this fact antecedent inadvertence to possible harm, and this constitutes
the fuel mixture leaked from the tank and dripped sown into the negligence. The burning of the Gwendoline may be said to have
engine compartment. The new fuel line and that already in use resulted from accident, but this accident was in no sense an
between the gasoline tank and carburetor were so fixed that it was unavoidable accident. It would not have occured but for Quest's
possible to change from the gasoline fuel to the mixed fuel. The carelessness or lack of skill. The test of liability is not whether the
purpose of this arrangement was to enable the operator to start the injury was accidental in a sense, but whether Quest was free from
engine on gasoline and then, after the engine had been operating blame.
for a few moments, to switch to the new fuel supply. lawphil.net
We therefore see no escape from the conclusion that this accident is
In the course of the preliminary work upon the carburetor and its chargeable to lack of skill or negligence in effecting the changes
connections, it was observed that the carburetor was flooding, and which Quest undertook to accomplish; and even supposing that our
that the gasoline, or other fuel, was trickling freely from the lower theory as to the exact manner in which the accident occurred might
part to the carburetor to the floor. This fact was called to Quest's appear to be in some respects incorrect, yet the origin of the fire in
attention, but he appeared to think lightly of the matter and said not so inscrutable as to enable us to say that it was casus fortuitus.
that, when the engine had gotten to running well, the flooding
would disappear. The trial judge seems to have proceeded on the idea that, inasmuch
as Quest had control of the Gwendoline during the experimental
After preliminary experiments and adjustments had been made the run, the defendant corporation was in the position of a bailee and
boat was taken out into the bay for a trial run at about 5 p.m. or a that, as a consequence, the burden of proof was on the defendant
little later, on the evening of January 30,1925. The first part of the to exculpate itself from responsibility by proving that the accident
course was covered without any untoward development, other than was not due to the fault of Quest. We are unable to accede to this
he fact that the engine stopped a few times, owing no doubt to the point of view. Certainly, Quest was not in charge of the navigation of
use of an improper mixture of fuel. In the course of the trial Quest the boat on this trial run. His employment contemplated the
remained outside of the engine compartment and occupied himself installation of new parts in the engine only, and it seems rather
with making distillate, with a view to ascertaining what proportion strained to hold that the defendant corporation had thereby
of the two elements would give best results in the engine. 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
As the boat was coming in from this run, at about 7:30 p.m. and taking it to his shop, are not bailees, and their rights and liabilities
when passing near Cavite, the engine stopped, and connection again are determined by the general rules of law, under their contract. The
had to be made with the gasoline line to get a new start. After this true bailee acquires possession and what is usually spoken of as
had been done the mechanic, or engineer, switched to the tube special property in the chattel bailed. As a consequence of such
connecting with the new mixture. A moment later a back fire possession and special property, the bailee is given a lien for his
occurred in the cylinder chamber. This caused a flame to shoot back compensation. These ideas seem to be incompatible with the
into the carburetor, and instantly the carburetor and adjacent parts situation now under consideration. But though defendant cannot be
were covered with a mass of flames, which the members of the crew held liable in the supposition that the burden of proof had not been
were unable to subdue. They were therefore compelled, as the fire sustained by it in disproving the negligence of its manager, we are
spread, to take to a boat, and their escape was safely effected, but nevertheless of the opinion that the proof shows by a clear
the Gwendoline was reduced to a mere hulk. The salvage from, the preponderance that the accident to the Gwendoline and the
wreck, when sold, brought only the sum of P150. The value of the damages resulting therefrom are chargeable to the negligence or
boat, before the accident occured, as the court found, was P10,000. lack of skill of Quest.

A study of the testimony lead us to the conclusion that the loss of This action was instituted about two years after the accident in
this boat was chargeable to the negligence and lack of skill of Quest. question had occured, and after Quest had ceased to be manager of
The temporary tank in which the mixture was prepared was the defendant corporation and had gone back to the United States.
apparently at too great an elevation from the carburetor, with the Upon these facts, the defendant bases the contention that the
result that when the fuel line was opened, the hydrostatic pressure action should be considered stale. It is sufficient reply to say that the
in the carburetor was greater than the delicate parts of the action was brought within the period limited by the statute of
carburetor could sustain. This was no doubt the cause of the limitations and the situation is not one where the defense of laches
flooding of the carburetor; and the result was that; when the back can be properly invoked.
fire occurred, the external parts of the carburetor, already saturated
with gasoline, burst into flames, whence the fire was quickly It results that the judgment appealed from, awarding damages to
communicated to the highly inflammable material near-by. the plaintiff in the amount of P9,850, with interest, must be
Ordinarily a back fire from an engine would not be followed by any affirmed; and it is so ordered, with costs against the appellant.
disaster, but in this case the leak along the pipe line and the flooding
of the carburetor had created a dangerous situation, which a
prudent mechanic, versed in repairs of this nature, would have
taken precautions to avoid. The back fire may have been due either
to the fact that the spark was too advanced or the fuel improperly
mixed.
G.R. No. L-10126 October 22, 1957
In this connection it must be remembered that when a person holds
himself out as being competent to do things requiring professional SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,
skill, he will be held liable for negligence if he fails to exhibit the care LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN,
and skill of one ordinarily skilled in the particular work which he represented by their Natural guardian, SALUD VILLANUEVA VDA.
attempts to do. The proof shows that Quest had had ample DE BATACLAN, plaintiffs-appellants,
experience in fixing the engines of automobiles and tractors, but it vs.
does not appear that he was experienced in the doing of similar MARIANO MEDINA, defendant-appellant.
work on boats. For this reason, possibly the dripping of the mixture
form the tank on deck and the flooding of the carburetor did not Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
convey to his mind an adequate impression of the danger of fire. But plaintiffs-appellants.
a person skilled in that particular sort of work would, we think have Fortunato Jose for defendant and appellant.
been sufficiently warned from those circumstances to cause him to
take greater and adequate precautions against the danger. In other MONTEMAYOR, J.:
words Quest did not use the skill that would have been exhibited by

52
Shortly after midnight, on September 13, 1952 bus no. 30 of the have acted negligently, unless they prove that they
Medina Transportation, operated by its owner defendant Mariano observed extraordinary diligence as prescribed in articles
Medina under a certificate of public convenience, left the town of 1733 and 1755
Amadeo, Cavite, on its way to Pasay City, driven by its regular
chauffeur, Conrado Saylon. There were about eighteen passengers, ART. 1759. Common carriers are liable for the death of or
including the driver and conductor. Among the passengers were injuries to passengers through the negligence or willful
Juan Bataclan, seated beside and to the right of the driver, Felipe acts of the former's employees, although such employees
Lara, sated to the right of Bataclan, another passenger apparently may have acted beyond the scope of their authority or in
from the Visayan Islands whom the witnesses just called Visaya, violation of the order of the common carriers.
apparently not knowing his name, seated in the left side of the
driver, and a woman named Natalia Villanueva, seated just behind
This liability of the common carriers does not cease upon
the four last mentioned. At about 2:00 o'clock that same morning,
proof that they exercised all the diligence of a good father
while the bus was running within the jurisdiction of Imus, Cavite,
of a family in the selection and supervision of their
one of the front tires burst and the vehicle began to zig-zag until it
employees.
fell into a canal or ditch on the right side of the road and turned
turtle. Some of the passengers managed to leave the bus the best
way they could, others had to be helped or pulled out, while the ART. 1763. A common carrier responsible for injuries
three passengers seated beside the driver, named Bataclan, Lara and suffered by a passenger on account of the willful acts or
the Visayan and the woman behind them named Natalia Villanueva, negligence of other passengers or of strangers, if the
could not get out of the overturned bus. Some of the passengers, common carrier's employees through the exercise of the
after they had clambered up to the road, heard groans and moans diligence of a good father of a family could have prevented
from inside the bus, particularly, shouts for help from Bataclan and or stopped the act or omission.
Lara, who said they could not get out of the bus. There is nothing in
the evidence to show whether or not the passengers already free We agree with the trial court that the case involves a breach of
from the wreck, including the driver and the conductor, made any contract of transportation for hire, the Medina Transportation
attempt to pull out or extricate and rescue the four passengers having undertaken to carry Bataclan safely to his destination, Pasay
trapped inside the vehicle, but calls or shouts for help were made to City. We also agree with the trial court that there was negligence on
the houses in the neighborhood. After half an hour, came about ten the part of the defendant, through his agent, the driver Saylon.
men, one of them carrying a lighted torch made of bamboo with a There is evidence to show that at the time of the blow out, the bus
wick on one end, evidently fueled with petroleum. These men was speeding, as testified to by one of the passengers, and as shown
presumably approach the overturned bus, and almost immediately, by the fact that according to the testimony of the witnesses,
a fierce fire started, burning and all but consuming the bus, including including that of the defense, from the point where one of the front
the four passengers trapped inside it. It would appear that as the tires burst up to the canal where the bus overturned after zig-zaging,
bus overturned, gasoline began to leak and escape from the gasoline there was a distance of about 150 meters. The chauffeur, after the
tank on the side of the chassis, spreading over and permeating the blow-out, must have applied the brakes in order to stop the bus, but
body of the bus and the ground under and around it, and that the because of the velocity at which the bus must have been running, its
lighted torch brought by one of the men who answered the call for momentum carried it over a distance of 150 meters before it fell
help set it on fire. into the canal and turned turtle.

That same day, the charred bodies of the four deemed passengers There is no question that under the circumstances, the defendant
inside the bus were removed and duly identified that of Juan carrier is liable. The only question is to what degree. The trial court
Bataclan. By reason of his death, his widow, Salud Villanueva, in her was of the opinion that the proximate cause of the death of Bataclan
name and in behalf of her five minor children, brought the present was not the overturning of the bus, but rather, the fire that burned
suit to recover from Mariano Medina compensatory, moral, and the bus, including himself and his co-passengers who were unable to
exemplary damages and attorney's fees in the total amount of leave it; that at the time the fire started, Bataclan, though he must
P87,150. After trial, the Court of First Instance of Cavite awarded have suffered physical injuries, perhaps serious, was still alive, and
P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the so damages were awarded, not for his death, but for the physical
value of the merchandise being carried by Bataclan to Pasay City for injuries suffered by him. We disagree. A satisfactory definition of
sale and which was lost in the fire. The plaintiffs and the defendants proximate cause is found in Volume 38, pages 695-696 of American
appealed the decision to the Court of Appeals, but the latter jurisprudence, cited by plaintiffs-appellants in their brief. It is as
endorsed the appeal to us because of the value involved in the claim follows:
in the complaint.
. . . 'that cause, which, in natural and continuous
Our new Civil Code amply provides for the responsibility of common sequence, unbroken by any efficient intervening cause,
carrier to its passengers and their goods. For purposes of reference, produces the injury, and without which the result would
we are reproducing the pertinent codal provisions: not have occurred.' And more comprehensively, 'the
proximate legal cause is that acting first and producing the
ART. 1733. Common carriers, from the nature of their injury, either immediately or by setting other events in
business and for reasons of public policy, are bound to motion, all constituting a natural and continuous chain of
observe extraordinary diligence in the vigilance over the events, each having a close causal connection with its
goods and for the safety of the passengers transported by immediate predecessor, the final event in the chain
them, according to all the circumstances of each case. immediately effecting the injury as a natural and probable
result of the cause which first acted, under such
circumstances that the person responsible for the first
Such extraordinary diligence in the vigilance over the
event should, as an ordinary prudent and intelligent
goods is further expressed in articles 1734, 1735, and
person, have reasonable ground to expect at the moment
1745, Nos. 5, 6, and 7, while the extra ordinary diligence
of his act or default that an injury to some person might
for the safety of the passengers is further set forth in
probably result therefrom.
articles 1755 and 1756.

It may be that ordinarily, when a passenger bus overturns, and pins

ART. 1755. A common carrier is bound to carry the
down a passenger, merely causing him physical injuries, if through
passengers safely as far as human care and foresight can
some event, unexpected and extraordinary, the overturned bus is
provide, using the utmost diligence of very cautious
set on fire, say, by lightning, or if some highwaymen after looting the
persons, with a due regard for all the circumstances.
vehicle sets it on fire, and the passenger is burned to death, one
might still contend that the proximate cause of his death was the
ART. 1756. In case of death of or injuries to passengers, fire and not the overturning of the vehicle. But in the present case
common carriers are presumed to have been at fault or to under the circumstances obtaining in the same, we do not hesitate
53
to hold that the proximate cause was the overturning of the bus, this of Bataclan and for the attorney's fees, respectively, the decision
for the reason that when the vehicle turned not only on its side but appealed is from hereby affirmed, with costs.
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 Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,
lighted torch was in response to the call for help, made not only by Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.
the passengers, but most probably, by the driver and the conductor
themselves, and that because it was dark (about 2:30 in the
morning), the rescuers had to carry a light with them, and coming as
they did from a rural area where lanterns and flashlights were not
available; and what was more natural than that said rescuers should
innocently approach the vehicle to extend the aid and effect the
rescue requested from them. In other words, the coming of the men
with a torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and
the call for outside help. What is more, the burning of the bus can
also in part be attributed to the negligence of the carrier, through is
driver and its conductor. According to the witness, the driver and
the conductor were on the road walking back and forth. They, or at
least, the driver should and must have known that in the position in
which the overturned bus was, gasoline could and must have leaked
from the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, specially over a
large area, can be smelt and directed even from a distance, and yet
neither the driver nor the conductor would appear to have
cautioned or taken steps to warn the rescuers not to bring the
lighted torch too near the bus. Said negligence on the part of the
agents of the carrier come under the codal provisions above-
reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering

the earning capacity of the deceased, as well as the other elements
entering into a damage award, we are satisfied that the amount of
SIX THOUSAND (P6,000) PESOS would constitute satisfactory
compensation, this to include compensatory, moral, and other
damages. We also believe that plaintiffs are entitled to attorney's
fees, and assessing the legal services rendered by plaintiffs'
attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS
for the loss of merchandise carried by the deceased in the bus, is
adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of
the injuries suffered by her, was hospitalized, and while in the
hospital, she was visited by the defendant Mariano Medina, and in
the course of his visit, she overheard him speaking to one of his bus
inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of
fact, he had been telling the driver to change the said tires, but that
the driver did not follow his instructions. If this be true, it goes to
prove that the driver had not been diligent and had not taken the
necessary precautions to insure the safety of his passengers. Had he
changed the tires, specially those in front, with new ones, as he had
been instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in all,
there is reason to believe that the driver operated and drove his G.R. No. L-65295 March 10, 1987
vehicle negligently, resulting in the death of four of his passengers,
physical injuries to others, and the complete loss and destruction of PHOENIX CONSTRUCTION, INC. and ARMANDO U.
their goods, and yet the criminal case against him, on motion of the CARBONEL, petitioners,
fiscal and with his consent, was provisionally dismissed, because vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO
according to the fiscal, the witnesses on whose testimony he was DIONISIO, respondents.
banking to support the complaint, either failed or appear or were
reluctant to testify. But the record of the case before us shows the
FELICIANO, J:
several witnesses, passengers, in that bus, willingly and
unhesitatingly testified in court to the effect of the said driver was
negligent. In the public interest the prosecution of said erring driver In the early morning of 15 November 1975 — at about 1:30 a.m. —
should be pursued, this, not only as a matter of justice, but for the private respondent Leonardo Dionisio was on his way home — he
promotion of the safety of passengers on public utility buses. Let a lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-
copy of this decision be furnished the Department of Justice and the and-dinner meeting with his boss, the general manager of a
Provincial Fiscal of Cavite. marketing corporation. During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor. Dionisio was driving his
Volkswagen car and had just crossed the intersection of General
In view of the foregoing, with the modification that the damages
Lacuna and General Santos Streets at Bangkal, Makati, not far from
awarded by the trial court are increased from ONE THOUSAND
his home, and was proceeding down General Lacuna Street, when
(P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX
his car headlights (in his allegation) suddenly failed. He switched his
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death
headlights on "bright" and thereupon he saw a Ford dump truck

54
looming some 2-1/2 meters away from his car. The dump truck, 2. The award of P150,000.00 as loss of expected income
owned by and registered in the name of petitioner Phoenix was reduced to P100,000.00, basically because Dionisio
Construction Inc. ("Phoenix"), was parked on the right hand side of had voluntarily resigned his job such that, in the opinion of
General Lacuna Street (i.e., on the right hand side of a person facing the appellate court, his loss of income "was not solely
in the same direction toward which Dionisio's car was proceeding), attributable to the accident in question;" and
facing the oncoming traffic. The dump truck was parked askew (not
parallel to the street curb) in such a manner as to stick out onto the 3. The award of P100,000.00 as moral damages was held
street, partly blocking the way of oncoming traffic. There were no by the appellate court as excessive and unconscionable
lights nor any so-called "early warning" reflector devices set and hence reduced to P50,000.00.
anywhere near the dump truck, front or rear. The dump truck had
earlier that evening been driven home by petitioner Armando U.
The award of P10,000.00 as exemplary damages
Carbonel, its regular driver, with the permission of his employer
and P4,500.00 as attorney's fees and costs remained
Phoenix, in view of work scheduled to be carried out early the
untouched.
following morning, Dionisio claimed that he tried to avoid a collision
by swerving his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision, Dionisio suffered This decision of the Intermediate Appellate Court is now before us
some physical injuries including some permanent facial scars, a on a petition for review.
"nervous breakdown" and loss of two gold bridge dentures.
Both the trial court and the appellate court had made fairly explicit
Dionisio commenced an action for damages in the Court of First findings of fact relating to the manner in which the dump truck was
Instance of Pampanga basically claiming that the legal and parked along General Lacuna Street on the basis of which both
proximate cause of his injuries was the negligent manner in which courts drew the inference that there was negligence on the part of
Carbonel had parked the dump truck entrusted to him by his Carbonel, the dump truck driver, and that this negligence was the
employer Phoenix. Phoenix and Carbonel, on the other hand, proximate cause of the accident and Dionisio's injuries. We note,
countered that the proximate cause of Dionisio's injuries was his however, that both courts failed to pass upon the defense raised by
own recklessness in driving fast at the time of the accident, while Carbonel and Phoenix that the true legal and proximate cause of the
under the influence of liquor, without his headlights on and without accident was not the way in which the dump truck had been parked
a curfew pass. Phoenix also sought to establish that it had exercised but rather the reckless way in which Dionisio had driven his car that
due rare in the selection and supervision of the dump truck driver. night when he smashed into the dump truck. The Intermediate
Appellate Court in its questioned decision casually conceded that
Dionisio was "in some way, negligent" but apparently failed to see
The trial court rendered judgment in favor of Dionisio and against
the relevance of Dionisio's negligence and made no further mention
Phoenix and Carbonel and ordered the latter:
of it. We have examined the record both before the trial court and
the Intermediate Appellate Court and we find that both parties had
(1) To pay plaintiff jointly and severally the sum placed into the record sufficient evidence on the basis of which the
of P 15,000.00 for hospital bills and the trial court and the appellate court could have and should have made
replacement of the lost dentures of plaintiff; findings of fact relating to the alleged reckless manner in which
Dionisio drove his car that night. The petitioners Phoenix and
(2) To pay plaintiff jointly and severally the sum Carbonel contend that if there was negligence in the manner in
of P 1,50,000.-00 as loss of expected income for which the dump truck was parked, that negligence was merely a
plaintiff brought about the accident in "passive and static condition" and that private respondent Dionisio's
controversy and which is the result of the recklessness constituted an intervening, efficient cause
negligence of the defendants; determinative of the accident and the injuries he sustained. The
need to administer substantial justice as between the parties in this
(3) To pay the plaintiff jointly and severally the case, without having to remand it back to the trial court after eleven
sum of P 10,000. as moral damages for the years, compels us to address directly the contention put forward by
unexpected and sudden withdrawal of plaintiff the petitioners and to examine for ourselves the record pertaining
from his lifetime career as a marketing man; to Dionisio's alleged negligence which must bear upon the liability,
mental anguish, wounded feeling, serious or extent of liability, of Phoenix and Carbonel.
anxiety, social humiliation, besmirched
reputation, feeling of economic insecurity, and There are four factual issues that need to be looked into: (a)
the untold sorrows and frustration in life whether or not private respondent Dionisio had a curfew pass valid
experienced by plaintiff and his family since the and effective for that eventful night; (b) whether Dionisio was
accident in controversy up to the present time; driving fast or speeding just before the collision with the dump
truck; (c) whether Dionisio had purposely turned off his car's
(4) To pay plaintiff jointly and severally the sum headlights before contact with the dump truck or whether those
of P 10,000.00 as damages for the wanton headlights accidentally malfunctioned moments before the collision;
disregard of defendants to settle amicably this and (d) whether Dionisio was intoxicated at the time of the accident.
case with the plaintiff before the filing of this
case in court for a smaller amount. As to the first issue relating to the curfew pass, it is clear that no
curfew pass was found on the person of Dionisio immediately after
(5) To pay the plaintiff jointly and severally the the accident nor was any found in his car. Phoenix's evidence here
sum of P 4,500.00 due as and for attorney's fees; consisted of the testimony of Patrolman Cuyno who had taken
and Dionisio, unconscious, to the Makati Medical Center for emergency
treatment immediately after the accident. At the Makati Medical
Center, a nurse took off Dionisio's clothes and examined them along
(6) The cost of suit. (Emphasis supplied)
with the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to produce any
Phoenix and Carbonel appealed to the Intermediate Appellate Court. curfew pass during the trial. Instead, he offered the explanation that
That court in CA-G.R. No. 65476 affirmed the decision of the trial his family may have misplaced his curfew pass. He also offered a
court but modified the award of damages to the following extent: certification (dated two years after the accident) issued by one
Major Benjamin N. Libarnes of the Zone Integrated Police
1. The award of P15,000.00 as compensatory damages was Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which
reduced to P6,460.71, the latter being the only amount was said to have authority to issue curfew passes for Pampanga and
that the appellate court found the plaintiff to have proved Metro Manila. This certification was to the effect that private
as actually sustained by him; respondent Dionisio had a valid curfew pass. This certification did
not, however, specify any pass serial number or date or period of

55
effectivity of the supposed curfew pass. We find that private conjunction with the admission of Dionisio that he had taken "a shot
respondent Dionisio was unable to prove possession of a valid or two" of liquor before dinner with his boss that night. We do not
curfew pass during the night of the accident and that the believe that this evidence is sufficient to show that Dionisio was so
preponderance of evidence shows that he did not have such a pass heavily under the influence of liquor as to constitute his driving a
during that night. The relevance of possession or non-possession of motor vehicle per se an act of reckless imprudence. 8 There simply is
a curfew pass that night lies in the light it tends to shed on the other not enough evidence to show how much liquor he had in fact taken
related issues: whether Dionisio was speeding home and whether he and the effects of that upon his physical faculties or upon his
had indeed purposely put out his headlights before the accident, in judgment or mental alertness. We are also aware that "one shot or
order to avoid detection and possibly arrest by the police in the two" of hard liquor may affect different people differently.
nearby police station for travelling after the onset of curfew without
a valid curfew pass. The conclusion we draw from the factual circumstances outlined
above is that private respondent Dionisio was negligent the night of
On the second issue — whether or not Dionisio was speeding home the accident. He was hurrying home that night and driving faster
that night — both the trial court and the appellate court were than he should have been. Worse, he extinguished his headlights at
completely silent. or near the intersection of General Lacuna and General Santos
Streets and thus did not see the dump truck that was parked askew
The defendants in the trial court introduced the testimony of and sticking out onto the road lane.
Patrolman Cuyno who was at the scene of the accident almost
immediately after it occurred, the police station where he was based Nonetheless, we agree with the Court of First Instance and the
being barely 200 meters away. Patrolman Cuyno testified that Intermediate Appellate Court that the legal and proximate cause of
people who had gathered at the scene of the accident told him that the accident and of Dionisio's injuries was the wrongful — or
Dionisio's car was "moving fast" and did not have its headlights negligent manner in which the dump truck was parked in other
on. 2 Dionisio, on the other hand, claimed that he was travelling at a words, the negligence of petitioner Carbonel. That there was a
moderate speed at 30 kilometers per hour and had just crossed the reasonable relationship between petitioner Carbonel's negligence
intersection of General Santos and General Lacuna Streets and had on the one hand and the accident and respondent's injuries on the
started to accelerate when his headlights failed just before the other hand, is quite clear. Put in a slightly different manner, the
collision took place. 3 collision of Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence.
Private respondent Dionisio asserts that Patrolman Cuyno's
testimony was hearsay and did not fag within any of the recognized The petitioners, however, urge that the truck driver's negligence was
exceptions to the hearsay rule since the facts he testified to were merely a "passive and static condition" and that private respondent
not acquired by him through official information and had not been Dionisio's negligence was an "efficient intervening cause and that
given by the informants pursuant to any duty to do so. Private consequently Dionisio's negligence must be regarded as the legal
respondent's objection fails to take account of the fact that the and proximate cause of the accident rather than the earlier
testimony of Patrolman Cuyno is admissible not under the official negligence of Carbonel. We note that the petitioners' arguments are
records exception to the hearsay rule 4 but rather as part of the res drawn from a reading of some of the older cases in various
gestae. 5 Testimonial evidence under this exception to the hearsay jurisdictions in the United States but we are unable to persuade
rule consists of excited utterances made on the occasion of an ourselves that these arguments have any validity for our jurisdiction.
occurrence or event sufficiently startling in nature so as to render We note, firstly, that even in the United States, the distinctions
inoperative the normal reflective thought processes of the observer between "cause" and "condition" which the 'petitioners would have
and hence made as a spontaneous reaction to the occurrence or us adopt have already been "almost entirely discredited." Professors
event, and not the result of reflective thought. 6 and Keeton make this quite clear:

We think that an automobile speeding down a street and suddenly Cause and condition. Many courts have sought to
smashing into a stationary object in the dead of night is a sufficiently distinguish between the active "cause" of the harm and
startling event as to evoke spontaneous, rather than reflective, the existing "conditions" upon which that cause operated.
reactions from observers who happened to be around at that time. If the defendant has created only a passive static condition
The testimony of Patrolman Cuyno was therefore admissible as part which made the damage possible, the defendant is said
of the res gestae and should have been considered by the trial court. not to be liable. But so far as the fact of causation is
Clearly, substantial weight should have been ascribed to such concerned, in the sense of necessary antecedents which
testimony, even though it did not, as it could not, have purported to have played an important part in producing the result it is
describe quantitatively the precise velocity at winch Dionisio was quite impossible to distinguish between active forces and
travelling just before impact with the Phoenix dump truck. passive situations, particularly since, as is invariably the
case, the latter are the result of other active forces which
A third related issue is whether Dionisio purposely turned off his have gone before. The defendant who spills gasoline about
headlights, or whether his headlights accidentally malfunctioned, the premises creates a "condition," but the act may be
just moments before the accident. The Intermediate Appellate Court culpable because of the danger of fire. When a spark
expressly found that the headlights of Dionisio's car went off as he ignites the gasoline, the condition has done quite as much
crossed the intersection but was non-committal as to why they did to bring about the fire as the spark; and since that is the
so. It is the petitioners' contention that Dionisio purposely shut off very risk which the defendant has created, the defendant
his headlights even before he reached the intersection so as not to will not escape responsibility. Even the lapse of a
be detected by the police in the police precinct which he (being a considerable time during which the "condition" remains
resident in the area) knew was not far away from the intersection. static will not necessarily affect liability; one who digs a
We believe that the petitioners' theory is a more credible trench in the highway may still be liable to another who
explanation than that offered by private respondent Dionisio — i.e., fans into it a month afterward. "Cause" and "condition"
that he had his headlights on but that, at the crucial moment, these still find occasional mention in the decisions; but the
had in some mysterious if convenient way malfunctioned and gone distinction is now almost entirely discredited. So far as it
off, although he succeeded in switching his lights on again at has any validity at all, it must refer to the type of case
"bright" split seconds before contact with the dump truck. where the forces set in operation by the defendant have
come to rest in a position of apparent safety, and some
new force intervenes. But even in such cases, it is not the
A fourth and final issue relates to whether Dionisio was intoxicated
distinction between "cause" and "condition" which is
at the time of the accident. The evidence here consisted of the
important but the nature of the risk and the character of
testimony of Patrolman Cuyno to the effect that private respondent
the intervening cause. 9
Dionisio smelled of liquor at the time he was taken from his
smashed car and brought to the Makati Medical Center in an
unconscious condition. 7 This testimony has to be taken in

56
We believe, secondly, that the truck driver's negligence far from Petitioners also ask us to apply what they refer to as the "last clear
being a "passive and static condition" was rather an indispensable chance" doctrine. The theory here of petitioners is that while the
and efficient cause. The collision between the dump truck and the petitioner truck driver was negligent, private respondent Dionisio
private respondent's car would in an probability not have occurred had the "last clear chance" of avoiding the accident and hence his
had the dump truck not been parked askew without any warning injuries, and that Dionisio having failed to take that "last clear
lights or reflector devices. The improper parking of the dump truck chance" must bear his own injuries alone. The last clear chance
created an unreasonable risk of injury for anyone driving down doctrine of the common law was imported into our jurisdiction
General Lacuna Street and for having so created this risk, the truck by Picart vs. Smith 11 but it is a matter for debate whether, or to
driver must be held responsible. In our view, Dionisio's negligence, what extent, it has found its way into the Civil Code of the
although later in point of time than the truck driver's negligence and Philippines. The historical function of that doctrine in the common
therefore closer to the accident, was not an efficient intervening or law was to mitigate the harshness of another common law doctrine
independent cause. What the Petitioners describe as an "intervening or rule that of contributory negligence. 12 The common law rule of
cause" was no more than a foreseeable consequent manner which contributory negligence prevented any recovery at all by a plaintiff
the truck driver had parked the dump truck. In other words, the who was also negligent, even if the plaintiff's negligence was
petitioner truck driver owed a duty to private respondent Dionisio relatively minor as compared with the wrongful act or omission of
and others similarly situated not to impose upon them the very risk the defendant. 13 The common law notion of last clear chance
the truck driver had created. Dionisio's negligence was not of an permitted courts to grant recovery to a plaintiff who had also been
independent and overpowering nature as to cut, as it were, the negligent provided that the defendant had the last clear chance to
chain of causation in fact between the improper parking of the avoid the casualty and failed to do so. 14 Accordingly, it is difficult to
dump truck and the accident, nor to sever the juris vinculum of see what role, if any, the common law last clear chance doctrine has
liability. It is helpful to quote once more from Professor and Keeton: to play in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by the
Foreseeable Intervening Causes. If the intervening cause is plaintiff, has itself been rejected, as it has been in Article 2179 of the
one which in ordinary human experience is reasonably to Civil Code of the Philippines. 15
be anticipated or one which the defendant has reason to
anticipate under the particular circumstances, the Is there perhaps a general concept of "last clear chance" that may be
defendant may be negligence among other reasons, extracted from its common law matrix and utilized as a general rule
because of failure to guard against it; or the defendant in negligence cases in a civil law jurisdiction like ours? We do not
may be negligent only for that reason. Thus one who sets a believe so. Under Article 2179, the task of a court, in technical
fire may be required to foresee that an ordinary, usual and terms, is to determine whose negligence — the plaintiff's or the
customary wind arising later wig spread it beyond the defendant's — was the legal or proximate cause of the injury. That
defendant's own property, and therefore to take task is not simply or even primarily an exercise in chronology or
precautions to prevent that event. The person who leaves physics, as the petitioners seem to imply by the use of terms like
the combustible or explosive material exposed in a public "last" or "intervening" or "immediate." The relative location in the
place may foresee the risk of fire from some independent continuum of time of the plaintiff's and the defendant's negligent
source. ... In all of these cases there is an intervening cause acts or omissions, is only one of the relevant factors that may be
combining with the defendant's conduct to produce the taken into account. Of more fundamental importance are the nature
result and in each case the defendant's negligence consists of the negligent act or omission of each party and the character and
in failure to protect the plaintiff against that very risk. gravity of the risks created by such act or omission for the rest of the
community. The petitioners urge that the truck driver (and therefore
Obviously the defendant cannot be relieved from liability his employer) should be absolved from responsibility for his own
by the fact that the risk or a substantial and important part prior negligence because the unfortunate plaintiff failed to act with
of the risk, to which the defendant has subjected the that increased diligence which had become necessary to avoid the
plaintiff has indeed come to pass. Foreseeable intervening peril precisely created by the truck driver's own wrongful act or
forces are within the scope original risk, and hence of the omission. To accept this proposition is to come too close to wiping
defendant's negligence. The courts are quite generally out the fundamental principle of law that a man must respond for
agreed that intervening causes which fall fairly in this the forseeable consequences of his own negligent act or omission.
category will not supersede the defendant's responsibility. Our law on quasi-delicts seeks to reduce the risks and burdens of
living in society and to allocate them among the members of society.
To accept the petitioners' pro-position must tend to weaken the
Thus it has been held that a defendant will be required to
very bonds of society.
anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or
snow or frost or fog or even lightning; that one who leaves Petitioner Carbonel's proven negligence creates a presumption of
an obstruction on the road or a railroad track should negligence on the part of his employer Phoenix 16 in supervising its
foresee that a vehicle or a train will run into it; ... employees properly and adequately. The respondent appellate court
in effect found, correctly in our opinion, that Phoenix was not able
to overcome this presumption of negligence. The circumstance that
The risk created by the defendant may include the
Phoenix had allowed its truck driver to bring the dump truck to his
intervention of the foreseeable negligence of others. ...
home whenever there was work to be done early the following
[The standard of reasonable conduct may require the
morning, when coupled with the failure to show any effort on the
defendant to protect the plaintiff against 'that occasional
part of Phoenix to supervise the manner in which the dump truck is
negligence which is one of the ordinary incidents of human
parked when away from company premises, is an affirmative
life, and therefore to be anticipated.' Thus, a defendant
showing of culpa in vigilando on the part of Phoenix.
who blocks the sidewalk and forces the plaintiff to walk in
a street where the plaintiff will be exposed to the risks of
heavy traffic becomes liable when the plaintiff is run down Turning to the award of damages and taking into account the
by a car, even though the car is negligently driven; and one comparative negligence of private respondent Dionisio on one hand
who parks an automobile on the highway without lights at and petitioners Carbonel and Phoenix upon the other hand, 17 we
night is not relieved of responsibility when another believe that the demands of substantial justice are satisfied by
negligently drives into it. --- 10 allocating most of the damages on a 20-80 ratio. Thus, 20% of the
damages awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and P4,500.00 as
We hold that private respondent Dionisio's negligence was "only
attorney's fees and costs, shall be borne by private respondent
contributory," that the "immediate and proximate cause" of the
Dionisio; only the balance of 80% needs to be paid by petitioners
injury remained the truck driver's "lack of due care" and that
Carbonel and Phoenix who shall be solidarity liable therefor to the
consequently respondent Dionisio may recover damages though
former. The award of exemplary damages and attorney's fees and
such damages are subject to mitigation by the courts (Article 2179,
costs shall be borne exclusively by the petitioners. Phoenix is of
Civil Code of the Philippines).
course entitled to reimbursement from Carbonel. 18 We see no
57
sufficient reason for disturbing the reduced award of damages made specifically on November 22, 1975, bidder Bertulano with
by the respondent appellate court. four other companions namely Joselito Garcia, William
Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found
WHEREFORE, the decision of the respondent appellate court is dead inside the septic tank. The bodies were removed by a
modified by reducing the aggregate amount of compensatory fireman. One body, that of Joselito Garcia, was taken out
damages, loss of expected income and moral damages private by his uncle, Danilo Garcia and taken to the Regional
respondent Dionisio is entitled to by 20% of such amount. Costs Hospital but he expired there. The City Engineer's office
against the petitioners. investigated the case and learned that the five victims
entered the septic tank without clearance from it nor with
the knowledge and consent of the market master. In fact,
SO ORDERED.
the septic tank was found to be almost empty and the
victims were presumed to be the ones who did the re-
emptying. Dr. Juan Abear of the City Health Office
autopsied the bodies and in his reports, put the cause of
death of all five victims as "asphyxia" caused by the
diminution of oxygen supply in the body working below
normal conditions. The lungs of the five victims burst,
swelled in hemmorrhagic areas and this was due to their
intake of toxic gas, which, in this case, was sulfide gas
produced from the waste matter inside the septic tank. (p.
177, Records)

On August 28, 1984, the trial court rendered a decision, the

dispositive portion of which reads:

IN VIEW OF THE FOREGOING, this case is hereby

DISMISSED without pronouncement as to costs.

SO ORDERED. (Records, p. 181)

From the said decision, the petitioners appealed to the then

Intermediate Appellate Court (now Court of Appeals). On January 3,
1986, the appellate court issued a decision, the dispositive portion
of which reads:
G.R. No. 92087 May 8, 1992

WHEREFORE, in view of the facts fully established and in the

SOFIA FERNANDO, in her behalf and as the legal guardian of her
liberal interpretation of what the Constitution and the law
minor children, namely: ALBERTO & ROBERTO, all surnamed
intended to protect the plight of the poor and the needy,
FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA
the ignorant and the
BERTULANO, in her behalf and as the legal guardian of her minor
indigent –– more entitled to social justice for having, in the
children, namely: EDUARDO, ROLANDO, DANIEL, AND JOCELYN, all
unforgettable words of Magsaysay, "less in life," We hereby
surnamed BERTULANO, PRIMITIVA FAJARDO in her behalf and as
reverse and set aside the appealed judgment and render
legal guardian of her minor children, namely: GILBERT, GLEN,
another one:
JOCELYN AND JOSELITO, all surnamed FAJARDO, and EMETERIA
LIAGOSO, in her behalf and as guardian ad litem, of her minor
1. Ordering the defendant to pay to the plaintiffs Dionisio
grandchildren, namely: NOEL, WILLIAM, GENEVIEVE and GERRY, all
Fernando, Sofia Fernando and her minor children the
surnamed LIAGOSO, petitioners,
following sums of money:
vs.
a) Compensatory damages for his death P30,000.00
THE HONORABLE COURT OF APPEALS AND CITY OF
b) Moral damages P20,000.00
DAVAO, respondents.
2. Ordering the defendant to pay to the plaintiffs David
Garcia and Anita Garcia the following sums of money:
a) Compensatory damages for his death P30,000.00
MEDIALDEA, J.: b) Moral damages P20,000.00

This is a petition for review on certiorari praying that the amended 3. Ordering the defendant to pay to the plaintiff Rosalia
decision of the Court of Appeals dated January 11, 1990 in CA-G.R. Bertulano (sic) and her minor children the following sums of
No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City of money
Davao," be reversed and that its original decision dated January 31, a) Compensatory damages for his death P30,000.00
1986 be reinstated subject to the modification sought by the b) Moral damages P20,000.00
petitioners in their motion for partial reconsideration dated March
6, 1986. 4. Ordering the defendant to pay to the plaintiff Primitiva
Fajardo and her minor children the following sums of
money:
The antecedent facts are briefly narrated by the trial court, as
a) Compensatory damages for his death P30,000.00
follows:
b) Moral damages P20,000.00
5. Ordering the defendant to pay to the plaintiffs Norma
From the evidence presented we see the following facts: Liagoso, Nicolas Liagoso and Emeteria Liagoso and her
On November 7, 1975, Bibiano Morta, market master of minor grandchildren the following sums of money:
the Agdao Public Market filed a requisition request with a) Compensatory damages for his death P30,000.00
the Chief of Property of the City Treasurer's Office for the b) Moral damages P20,000.00
re-emptying of the septic tank in Agdao. An invitation to
bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano The death compensation is fixed at P30,000.00 in
Bascon, Federico Bolo and Antonio Suñer, Jr. Bascon won accordance with the rulings of the Supreme Court starting
the bid. On November 26, 1975 Bascon was notified and with People vs. De la Fuente, Nos. L-63251-52, December
he signed the purchase order. However, before such date, 29, 1983, 126 SCRA 518 reiterated in the recent case

58
 of People vs. Nepomuceno, No. L-41412, May 27, 1985. take precautions to guard against that
Attorney's fees in the amount of P10,000.00 for the harm. Reasonable foresight of harm, followed by
handling of the case for the 5 victims is also awarded. the ignoring of the suggestion born of this
provision, is always necessary before negligence
No pronouncement as to costs. SO ORDERED. (Rollo, pp. 33- can be held to exist. Stated in these terms, the
34) proper criterion for determining the existence of
negligence in a given case is this: Conduct is said
Both parties filed their separate motions for reconsideration. On to be negligent when a prudent man in the
January 11, 1990, the Court of Appeals rendered an Amended position of the tortfeasor would have foreseen
Decision, the dispositive portion of which reads: that an effect harmful to another was sufficiently
probable warrant his foregoing the conduct or
guarding against its consequences. (emphasis
WHEREFORE, finding merit in the motion for
supplied)
reconsideration of the defendant-appellee
Davao City, the same is hereby GRANTED. The
decision of this Court dated January 31, 1986 is To be entitled to damages for an injury resulting from the negligence
reversed and set aside and another one is of another, a claimant must establish the relation between the
hereby rendered dismissing the case. No omission and the damage. He must prove under Article 2179 of the
pronouncement as to costs. New Civil Code that the defendant's negligence was the immediate
and proximate cause of his injury. Proximate cause has been defined
as that cause, which, in natural and continuous sequence unbroken
SO ORDERED. (Rollo, p. 25)
by any efficient intervening cause, produces the injury, and without
which the result would not have occurred (Vda. de Bataclan, et al. v.
Hence, this petition raising the following issues for resolution: Medina, 102 Phil. 181, 186). Proof of such relation of cause and
effect is not an arduous one if the claimant did not in any way
1. Is the respondent Davao City guilty of contribute to the negligence of the defendant. However, where the
negligence in the case at bar? resulting injury was the product of the negligence of both parties,
there exists a difficulty to discern which acts shall be considered the
2. If so, is such negligence the immediate and proximate cause of the accident. In Taylor v. Manila Electric Railroad
proximate cause of deaths of the victims hereof? and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a
(p. 72, Rollo) judicious assessment of the situation:

Negligence has been defined as the failure to observe for the Difficulty seems to be apprehended in deciding
protection of the interests of another person that degree of care, which acts of the injured party shall be
precaution, and vigilance which the circumstances justly demand, considered immediate causes of the
whereby such other person suffers injury (Corliss v. Manila Railroad accident. The test is simple. Distinction must be
Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the made between the accident and the injury,
law, a person who by his omission causes damage to another, there between the event itself, without which there
being negligence, is obliged to pay for the damage done (Article could have been no accident, and those acts of
2176, New Civil Code). As to what would constitute a negligent act in the victim not entering into it, independent of it,
a given situation, the case of Picart v. Smith (37 Phil. 809, 813) but contributing to his own proper hurt. For
provides Us the answer, to wit: instance, the cause of the accident under review
was the displacement of the crosspiece or the
failure to replace it. This produced the event
The test by which to determine the existence of giving occasion for damages — that is, the
negligence in a particular case may be stated as sinking of the track and the sliding of the iron
follows: Did the defendant in doing the alleged rails. To this event, the act of the plaintiff in
negligent act use that reasonable care and walking by the side of the car did not contribute,
caution which an ordinarily prudent person although it was an element of the damage which
would have used in the same situation? If not, came to himself. Had the crosspiece been out of
then he is guilty of negligence. The law here in place wholly or partly through his act or
effect adopts the standard supposed to be omission of duty, that would have been one of
supplied by the imaginary conduct of the the determining causes of the event or accident,
discreet pater familias of the Roman law. The for which he would have been responsible.
existence of negligence in a given case is not Where he contributes to the principal
determined by reference to the personal occurrence, as one of its determining factors, he
judgment of the actor in the situation before can not recover. Where, in conjunction with the
him. The law considers what would be reckless, occurrence, he contributes only to his own
blameworthy, or negligent in the man of injury, he may recover the amount that the
ordinary intelligence and prudence and defendant responsible for the event should pay
determines liability by that. for such injury, less a sum deemed a suitable
equivalent for his own imprudence. (emphasis
The question as to what would constitute the Ours)
conduct of a prudent man in a given situation
must of course be always determined in the light Applying all these established doctrines in the case at bar and after a
of human experience and in view of the facts careful scrutiny of the records, We find no compelling reason to
involved in the particular case. Abstract grant the petition. We affirm.
speculation cannot here be of much value but
this much can be profitably said: Reasonable
men govern their conduct by the circumstances Petitioners fault the city government of Davao for failing to clean a
which are before them or known to them. They septic tank for the period of 19 years resulting in an accumulation of
are not, and are not supposed to be, omniscient hydrogen sulfide gas which killed the laborers. They contend that
of the future. Hence they can be expected to such failure was compounded by the fact that there was no warning
take care only when there is something before sign of the existing danger and no efforts exerted by the public
them to suggest or warn of danger. Could a respondent to neutralize or render harmless the effects of the toxic
prudent man, in the case under consideration, gas. They submit that the public respondent's gross negligence was
foresee harm as a result of the course actually the proximate cause of the fatal incident.
pursued? If so, it was the duty of the actor to

59
We do not subscribe to this view. While it may be true that the septic tank was full, there was no report of any casualty of
public respondent has been remiss in its duty to re-empty the septic gas poisoning despite the presence of people living near it
tank annually, such negligence was not a continuing one. Upon or passing on top of it or using the public toilet for their
learning from the report of the market master about the need to personal necessities.
clean the septic tank of the public toilet in Agdao Public Market, the
public respondent immediately responded by issuing invitations to Petitioners made a lot of fuss over the lack of any ventilation pipe in
bid for such service. Thereafter, it awarded the bid to the lowest the toilet to emphasize the negligence of the city government and
bidder, Mr. Feliciano Bascon (TSN, May 24, 1983, pp. 22-25). The presented witnesses to attest on this lack. However, this strategy
public respondent, therefore, lost no time in taking up remedial backfired on their faces. Their witnesses were not expert witnesses.
measures to meet the situation. It is likewise an undisputed fact that On the other hand, Engineer Demetrio Alindada of the city
despite the public respondent's failure to re-empty the septic tank government testified and demonstrated by drawings how the safety
since 1956, people in the market have been using the public toilet requirements like emission of gases in the construction of both toilet
for their personal necessities but have remained unscathed. The and septic tank have been complied with. He stated that the
testimonies of Messrs. Danilo Garcia and David Secoja (plaintiffs'- ventilation pipe need not be constructed outside the building as it
petitioners' witnesses) on this point are relevant, to wit: could also be embodied in the hollow blocks as is usually done in
residential buildings (TSN, November 4, 1983, pp. 50-51). The
Atty. Mojica, counsel for defendant Davao City: petitioners submitted no competent evidence to corroborate their
xxx xxx xxx oral testimonies or rebut the testimony given by Engr. Alindada.
The place where you live is right along the Agdao creek, is
that correct? We also do not agree with the petitioner's submission that warning
DANILO GARCIA: signs of noxious gas should have been put up in the toilet in addition
A Yes, sir. to the signs of "MEN" and "WOMEN" already in place in that area.
Q And to be able to go to the market place, where you Toilets and septic tanks are not nuisances per se as defined in Article
claim you have a stall,, you have to pass on the septic 694 of the New Civil Code which would necessitate warning signs for
tank? the protection of the public. While the construction of these public
A Yes, sir. facilities demands utmost compliance with safety and sanitary
Q Day in and day out, you pass on top of the septic tank? requirements, the putting up of warning signs is not one of those
A Yes, sir. requirements. The testimony of Engr. Alindada on this matter is
Q Is it not a fact that everybody living along the creek elucidative:
passes on top of this septic tank as they go out from the
place and return to their place of residence, is that
ATTY. ALBAY:
correct?
And this septic tank, rather the whole of the septic tank, is
covered by lead . . .? Q Mr. Witness, you mentioned the several aspects of the
A Yes, sir. there is cover. approval of the building permit which include the plans of
Q And there were three (3) of these lead covering the an architect, senitary engineer and electrical plans. All of
septic tank? these still pass your approval as building official, is that
A Yes, sir. correct?
Q And this has always been closed?
A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis DEMETRIO ALINDADA:
supplied)
ATTY. JOVER, counsel for the plaintiffs: A Yes.
Q You said you are residing at Davao City, is it not?
DAVID SEJOYA:
A Yes, sir. Q So there is the sanitary plan submitted to and will not be
Q How long have you been a resident of Agdao? approved by you unless the same is in conformance with
A Since 1953. the provisions of the building code or sanitary
Q Where specifically in Agdao are you residing? requirements?
A At the Public Market.
Q Which part of the Agdao Public Market is your house A Yes, for private building constructions.
located?
A Inside the market in front of the fish section. Q How about public buildings?
Q Do you know where the Agdao septic tank is located?
A Yes, sir.
A For public buildings, they are exempted for payment of
Q How far is that septic tank located from your house?
building permits but still they have to have a building
A Around thirty (30) meters.
permit.
Q Have you ever had a chance to use that septic tank
(public toilet)?
A Yes, sir. Q But just the same, including the sanitary plans, it require
Q How many times, if you could remember? your approval?
A Many times, maybe more than 1,000 times.
Q Prior to November 22, 1975, have you ever used that A Yes, it requires also.
septic tank (public toilet)?
A Yes, sir. Q Therefore, under the National Building Code, you are
Q How many times have you gone to that septic tank empowered not to approve sanitary plans if they are not in
(public toilet) prior to that date, November 22, 1975? conformity with the sanitary requirements?
A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)
A Yes.
The absence of any accident was due to the public
respondent's compliance with the sanitary and plumbing
Q Now, in private or public buildings, do you see any
specifications in constructing the toilet and the septic tank
warning signs in the vicinity of septic tanks?
(TSN, November 4, 1983, p. 51). Hence, the toxic gas from
the waste matter could not have leaked out because the
septic tank was air-tight (TSN, ibid, p. 49). The only A There is no warning sign.
indication that the septic tank in the case at bar was full
and needed emptying was when water came out from it Q In residential buildings do you see any warning sign?
(TSN, September 13, 1983, p. 41). Yet, even when the

60
 A There is none. Petitioners further contend that the failure of the market master to
supervise the area where the septic tank is located is a reflection of
ATTY. AMPIG: the negligence of the public respondent.

We submit that the matter is irrelevant and immaterial, We do not think so. The market master knew that work on the septic
Your Honor. tank was still forthcoming. It must be remembered that the bidding
had just been conducted. Although the winning bidder was already
known, the award to him was still to be made by the Committee on
ATTY. ALBAY:
Awards. Upon the other hand, the accident which befell the victims
who are not in any way connected with the winning bidder
But that is in consonance with their cross-examination, happened before the award could be given. Considering that the
your Honor. case was yet no award to commence work on the septic tank, the
duty of the market master or his security guards to supervise the
COURT: work could not have started (TSN, September 13, 1983, p. 40). Also,
the victims could not have been seen working in the area because
Anyway it is already answered. the septic tank was hidden by a garbage storage which is more or
less ten (10) meters away from the comfort room itself (TSN, ibid,
pp. 38-39). The surreptitious way in which the victims did their job
ATTY. ALBAY: without clearance from the market master or any of the security
guards goes against their good faith. Even their relatives or family
Q These warning signs, are these required under the members did not know of their plan to clean the septic tank.
preparation of the plans?
Finally, petitioners' insistence on the applicability of Article 24 of the
A It is not required. New Civil Code cannot be sustained. Said law states:

Q I will just reiterate, Mr. Witness. In residences, for Art. 24. In all contractual, property or other
example like the residence of Atty. Ampig or the residence relations, when one of the parties is at a
of the honorable Judge, would you say that the same disadvantage on account of his moral
principle of the septic tank, from the water closet to the dependence, ignorance, indigence, mental
vault, is being followed? weakness, tender age or other handicap, the
courts must be vigilant for his protection.
A Yes.
We approve of the appellate court's ruling that "(w)hile
ATTY. ALBAY: one of the victims was invited to bid for said project, he
did not win the bid, therefore, there is a total absence of
contractual relations between the victims and the City
That will be all, Your Honor. (TSN, December 6, 1983, pp.
Government of Davao City that could give rise to any
62-63)
contractual obligation, much less, any liability on the part
of Davao City." (Rollo, p. 24) The accident was indeed
In view of this factual milieu, it would appear that an accident such tragic and We empathize with the petitioners. However,
as toxic gas leakage from the septic tank is unlikely to happen unless the herein circumstances lead Us to no other conclusion
one removes its covers. The accident in the case at bar occurred than that the proximate and immediate cause of the death
because the victims on their own and without authority from the of the victims was due to their own negligence.
public respondent opened the septic tank. Considering the nature of Consequently, the petitioners cannot demand damages
the task of emptying a septic tank especially one which has not been from the public respondent.
cleaned for years, an ordinarily prudent person should undoubtedly
be aware of the attendant risks. The victims are no exception; more
ACCORDINGLY, the amended decision of the Court of Appeals dated
so with Mr. Bertulano, an old hand in this kind of service, who is
January 11, 1990 is AFFIRMED. No costs.
presumed to know the hazards of the job. His failure, therefore, and
that of his men to take precautionary measures for their safety was
the proximate cause of the accident. In Culion Ice, Fish and SO ORDERED.
Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held
that when a person holds himself out as being competent to do
things requiring professional skill, he will be held liable for
negligence if he fails to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts to do (emphasis
Ours). The fatal accident in this case would not have happened but
for the victims' negligence. Thus, the appellate court was correct to
observe that:

. . . Could the victims have died if they did not open the
septic tank which they were not in the first place
authorized to open? Who between the passive object
(septic tank) and the active subject (the victims herein)
who, having no authority therefore, arrogated unto
themselves, the task of opening the septic tank which
caused their own deaths should be responsible for such
deaths. How could the septic tank which has been in
existence since the 1950's be the proximate cause of an
accident that occurred only on November 22, 1975? The
stubborn fact remains that since 1956 up to occurrence of
the accident in 1975 no injury nor death was caused by the
septic tank. The only reasonable conclusion that could be
drawn from the above is that the victims' death was
caused by their own negligence in opening the septic tank.
. . . (Rollo, p. 23)

61
 massive brain congestion with petheccial hemorrhage, brain
bilateral pulmonary edema and congestion and endocardial
petecchial hemorrhage and dilation (history of electrocution)."

On 6 February 1985 Caridad O. Bernardo, widow of Jose Bernardo,

and their minor children, Jojo, Jeffrey and Jo-an, all surnamed
Bernardo, filed a complaint against BENECO before the Regional
Trial Court of Baguio City for a sum of money and damages arising
from the electrocution of Jose Bernardo. In the same civil action,
BENECO filed a third-party complaint against Guillermo Canave, Jr.,
the jeepney owner.

In its decision dated 15 August 1994, the trial court ruled in favor of
the Bernardos and ordered BENECO to pay them damages. 2 Both
petitioner and private respondents herein appealed to the Court of
Appeals. On 5 November 1996 the appellate court promulgated its
Decision which BENECO now assails contending inter alia that the
appellate court gravely erred in ordering BENECO to pay damages in
light of the clear evidence that it was third-party defendant Canave's
fault or negligence which was the proximate and sole cause, or at
least the principal cause, of the electrocution and death of Jose
Bernardo.

First, BENECO questions the award of damages by respondent court

notwithstanding a clear showing that the electrocution and death of
Jose Bernardo were directly attributable to the fault and negligence
of jeepney owner Guillermo Canave, Jr.

The records of the case show that respondent court did not commit
any reversible error in affirming the findings of the trial court that
BENECO was solely responsible for the untimely death of Jose
G.R. No. 127326 December 23, 1999 Bernardo through accidental electrocution. According to the trial
court, which we find substantiated by the records — 3
BENGUET ELECTRIC COOPERATIVE, INC., petitioner,
vs. COURT OF APPEALS, CARIDAD O. BERNARDO as Guardian Ad Through Virgilio Cerezo, a registered master electrician
Litem for Minors JOJO, JEFFREY and JO-AN, all surnamed and presently the Chief Electrical Building Inspector of
BERNARDO, and GUILLERMO CANAVE, JR., respondents. the General Services Division of the City of Baguio, who
was tasked to investigate the electrocution of Bernardo,
BELLOSILLO, J.: the plaintiffs adduced proof tending to show that the
defendant BENECO installed a No. 2 high voltage main
This case involves a review on certiorari of the Decision of the Court wire distribution line and a No. 6 service line to provide
of Appeals 1 affirming with modification the decision of the Regional power at the temporary meat market on Hilltop Road. It
Trial Court of Baguio City, and ordering petitioner Benguet Electric put up a three-inch G.I. pipe pole to which the No. 2 main
Cooperative Inc. (BENECO) to pay Caridad O. Bernardo, as line was strung on top of a stall where a service drop line
guardian ad litem of the three (3) minor children of the late Jose was connected. The height of the electrical connection
Bernardo P50,000.00 as indemnity for his death, with interest from the No. 2 line to the service line was barely eight (8)
thereon at the legal rate from February 6, 1985, the date of the filing to nine (9) feet (Exhibit "E"; See Exhibit "D-1") which is in
of the complaint, until fully paid, P100,000.00 for moral damages, violation of the Philippine Electrical Code which requires
P20,000.00 for exemplary damages, another P20,000.00 for a minimum vertical clearance of fourteen (14) feet from
attorney's fees, P864,000.00 for net income loss for the remaining the level of the ground since the wiring crosses a public
thirty (30) years of the life expectancy of the deceased, and to pay street. Another violation according to Cerezo, is that the
the costs of suit. main line connected to the service line was not of rigid
conduit wiring but totally exposed without any safety
protection (Ibid). Worse, the open wire connections were
The appellate court dismissed for lack of merit the counterclaim of
not insulated (Ibid); See Exhibits "D-6", "D-6-A", "D-7").
BENECO against the Bernardos and its third party complaint against
The jeep's antenna which was more than eight (8) feet
Guillermo Canave, Jr., as well as the latter's counterclaim.
high (Exhibit "D-9") from the ground (It is about six to
seven feet long and mounted on the left fender which is
For five (5) years up to the time of his death, Jose Bernardo about three feet above the ground) got entangled with
managed a stall at the Baguio City meat market. On 14 January 1985 the open wire connections (Exhibit "D-8"), thereby
at around 7:50 in the morning, Jose together with other meat electrically charging its handlebars which Bernardo held
vendors went out of their stalls to meet a jeepney loaded with on to enter the vehicle resulting in his electrocution.
slaughtered pigs in order to select the meat they would sell for the
day. Jose was the very first to reach the parked jeepney. Grasping
While Vedasto Augusto, an electrical engineer and the line
the handlebars at the rear entrance of the vehicle, and as he was
superintendent in the electrical department of the
about to raise his right foot to get inside, Jose suddenly stiffened
defendant BENECO, admitted that the allowable vertical
and trembled as though suffering from an epileptic seizure. Romeo
clearance of the service drop line is even 15 feet from the
Pimienta who saw Jose thought he was merely joking but noticed
ground level and not only 14 feet, he and Jose Angeles,
almost in disbelief that he was already turning black. In no time the
then an instrument man or surveyor of the BENECO,
other vendors rushed to Jose and they discovered that the antenna
insisted that BENECO installed (they do not know by whom
of the jeepney bearing the pigs had gotten entangled with an open
in particular) from the Apollo Building nearby a service
electric wire at the top of the roof of a meat stall. Pimienta quickly
drop line carrying 220 volts which was attached to a G.I.
got hold of a broom and pried the antenna loose from the open
pipe pole (Exhibits "1" and "1-A"). The vertical clearance of
wire. But shortly after, Jose released his hold on the handlebars of
the point of attachment of the service drop line on the G.I.
the jeep only to slump to the ground. He died shortly in the hospital.
post to the ground is 15.5 feet (Exhibit "1-B"), which is
Cause of his death was "cardio-respiratory arrest secondary to
more than the allowable 15-foot clearance. To this service

62
 drop line was connected the service entrance conductor earning no less than P150.00 daily after
(Exhibit "1-D") to supply power inside the premises to be deducting personal expenses and household and
serviced through an electric meter. At the lower portion of other family obligations; at the trial she bloated
the splicing or connecting point between the service drop this up to P3,000.00 gross daily or P300.00 profit
line and the service entrance conductor is a three to four- a day or a net income of P200.00 daily after
inch bare wire to serve as a ground. They saw the bare deducting personal and household expenses. But
wire because the splicing point was exposed as it was not inexplicably she could not present the income
covered with tape (Exhibit "1-E"). The antenna of the jeep tax return of her husband for 1983 and 1984
which electrocuted Bernardo got entangled with this although she stated that he had been filing such
exposed splicing point. returns. What she submitted are his income tax
returns for 1981 and 1982 showing a much lower
Augusto claimed that it was not BENECO's job to splice or annual gross income of P12,960.00 and
connect the service entrance conductor to the service P16,120.00, respectively. The Court, therefore,
drop line but rather the owner of the premises to be finds no firm basis for awarding this item of
serviced whose identity they did not, however, determine. damages.

Significantly, on cross-examination, Augusto admitted that In modifying the decision of the trial court, the Court of Appeals
the service drop line that BENECO installed did not end at relied on the testimony of Rosita Noefe, sister of the deceased, that
the point to which it is attached to the G.I. post. Rather, it her brother started as her helper in the several meat stalls she
passed through a spool insulator that is attached to the operated until 1982 when she allowed Jose to operate one of her
post (Exhibit "1-F") and extended down to where the stalls as his own and gave him an initial capital of P15,000.00 to add
service entrance conductor is spliced with the result that to his own. She explained that her brother sold from 100 to 150 kilos
the exposed splicing point (Exhibit "1-E") is only about of pork and 30 to 50 kilos of meat a day earning an income of about
eight (8) feet from the ground level. P150.00 to P200.00 pesos daily. After deducting his personal
expenses and family obligations, Jose earned a daily net income
between P70.00 and P80.00. Jose Bernardo died of electrocution at
There is no question that as an electric cooperative holding the
the age of thirty-three (33). Following the ruling in Villa Rey Transit
exclusive franchise in supplying electric power to the towns of
v. Court of Appeals 7 and Davila v. PAL 8 his life expectancy would
Benguet province, its primordial concern is not only to distribute
allow him thirty and one third (30-1/3) years more. Assuming on the
electricity to its subscribers but also to ensure the safety of the
basis of his P80.00 daily net income translated to P2,400.00 monthly
public by the proper maintenance and upkeep of its facilities. It is
or P28,800.00 yearly, the net income loss for the thirty (30) years
clear to us then that BENECO was grossly negligent in leaving
remaining of his life expectancy would amount to P864,000.00. 9
unprotected and uninsulated the splicing point between the service
drop line and the service entrance conductor, which connection was
only eight (8) feet from the ground level, in violation of the While we are of the opinion that private respondent Bernardo is
Philippine Electrical Code. BENECO's contention that the accident entitled to indemnity for loss of earning capacity of her deceased
happened only on January 14, 1985, around seven (7) years after the husband we however find that a modification is in order. The
open wire was found existing in 1978, far from mitigating its amount corresponding to the loss of earning capacity is based
culpability, betrays its gross neglect in performing its duty to the mainly on two factors: (a) the number of years on the basis of which
public. 4 By leaving an open live wire unattended for years, BENECO the damages shall be computed; and, (b) the rate at which the losses
demonstrated its utter disregard for the safety of the public. Indeed, sustained by the widow and her children should be fixed. 10
Jose Bernardo's death was an accident that was bound to happen in
view of the gross negligence of BENECO. We consider that the deceased was married with three (3) children
and thirty-three (33) years old at the time of his death. By applying
BENECO theorizes in its defense that the death of Jose Bernardo the formula: 2/3 x (80 - 33) = Life Expectancy, the normal life
could be attributed to the negligence of Canave, Jr., in parking his expectancy of the deceased would be thirty-one and one-third (31-
jeepney so close to the market stall which was neither a parking 1/3) years and not thirty (30) as found by the respondent court. By
area nor a loading area, with his antenna so high as to get entangled taking into account the nature and quality of life of a meat vendor, it
with an open wire above the Dimasupil is hard to conceive that Jose would still be working for the full
store. 5 But this line of defense must be discarded. Canave's act of stretch of the remaining thirty-one (31) years of his life; and
parking in an area not customarily used for that purpose was by no therefore it is but reasonable to make allowances and reduce his life
means the independent negligent act adverted to by BENECO in expectancy to twenty-five (25) years. 11
citing Manila Electric Co. v. Ronquillo. 6 Canave was well within his
right to park the vehicle in the said area where there was no Anent the second factor, we are of the view that the Court of
showing that any municipal law or ordinance was violated nor that Appeals was correct in relying on the unrebutted testimony of Rosita
there was any foreseeable danger posed by his act. One thing Noefe concerning the income of Jose, thus providing a basis for
however is sure, no accident would have happened had BENECO fixing the rate of damages incurred by the heirs of the deceased.
installed the connections in accordance with the prescribed vertical Rosita clarified as follows:
clearance of fifteen (15) feet.
Q: Now you said that you brother's stall is just very near,
Second. BENECO avers that the Court of Appeals gravely erred in about 4 to 5 meters away from your stall. Do you know
awarding P864,000.00 as net income loss for the thirty (30) years more or less how your brother was earning by way of
remaining of the life expectancy of the deceased Jose Bernardo, income because the stall belongs also to you and your
albeit the trial court found no firm basis for awarding this item of husband?
damages.
A: Yes, sir (emphasis supplied).
We recall that the trial court disallowed the award for net loss
income in view of the alleged contradictory and untrustworthy Q: How much more or less would you say his daily income
testimony of the deceased's surviving spouse Caridad Bernardo. from the stall, if you know?
Thus —
A: P150 to P200 more, sometimes more than P200.
As to lost earnings. The court finds the
allegations of the plaintiffs, particularly Caridad
Q: What is this? Monthly, daily, or what?
Bernardo contradictory and untrustworthy.
While in the complaint, which she herself
verified, she asseverated that at the time of his A: Daily sir.
death on January 14, 1985, her late husband was
63
 Q: Now, when you said that he earns sometimes 150 or which gives us P675,000.00. Therefore, we deduce that his net
200 in a day can (sic) you tell this court more or less how earning capacity is P675,000.00 computed as follows: 13 Net Earning
many in terms of net or in terms of kilos that he can sell Capacity = Life Expectancy x Gross Annual Income - Necessary Living
with that amount daily? Expenses. Reduced to simpler form:

A: More than one hundred (100) kilos, sir, or one hundred Net Earning = Life x Gross Annual — Necessary
fifty kilos (150). Capacity Expectancy Income Living Expenses
= 2 (80 - 33) x (P54,000 —
Q: By the way what was your brother selling also in that 27,000)
meat stall? ————
3
= 31-1/3
A: Pork and beef, sir.
(reduced to 25) x 27,000 =
675,000.00
Q: In terms of how many slaughter(ed) pigs would that be = P675,000.00 NET INCOME
if you know? 100 to 150 kilo LOSS (as reduced)

A: Two (2) pigs, sir. Third. BENECO contends that exemplary damages should not be
awarded as the amount claimed was not specified in the body nor in
Q: Is this . . . How about meat, I mean aside from pigs? the prayer of the complaint, in contravention of the mandate in Rule
11 of the Interim Rules and Guidelines implementing BP 129 which
A: About thirty (30) to fifty (50) kilos for beef. requires the amount of damages to be specifically alleged
apparently for the purpose of computing the docket fees.

Q: Now, will you tell this court why you know more or less
that this is his daily income? BENECO's contention deserves no merit. The amount of exemplary
damages need not be pleaded in the complaint because the same
cannot be predetermined. One can merely ask that it be fixed by the
A: I know it because I experienced it and I only transferred court as the evidence may warrant and be awarded at its own
this stall to him. discretion. 14 In fact, the amount of exemplary damages need not be
proved because its determination is contingent upon or incidental to
Q: And his income, you said, of 150 daily to 200 for the the amount of compensatory damages that may be awarded to the
sale of pork and meat will you know what are his family claimant. Moreover, this Court in a number of occasions ruled that
expenses being your brother and is living with you in the the amount of docket fees to be paid should be computed on the
same place at the slaughter house? basis of the amount of the damages stated in the complaint. Where
subsequently however the judgment awarded a claim not specified
A: About P70.00 to P80.00 a day. in the pleading, or if specified, the same was left for the
determination of the court, an additional filing fee therefor may be
assessed and considered to constitute a lien on the judgment. 15
Q: And what are the other income that your brother derive
(sic) aside from the meat stall after spending these daily
expenses? We are not unaware of the principle laid down in Tacay v. Regional
Trial Court of Tagum 16 where the trial court was ordered to either
expunge the unspecified claim for exemplary damages or allow the
A: None, sir.
private respondent to amend the complaint within a reasonable
time and specify the amount corresponding docket fees. However,
Contrary to the assertion of BENECO, there is ample basis for the we prefer not to expunge the claim for exemplary damages and
fixing of damages incurred by the heirs of the deceased. pursue the Tacay lead, for to delete the claim for exemplary
Notwithstanding the failure of private respondent Bernardo to damages would be to give premium to BENECO's gross negligence
present documentary evidence to support her claim, the unrebutted while to order the amendment of the complaint would be to
testimony of Rosita Noefe supplied this deficiency. Indeed, there is unjustly delay the proceedings and prolong further the almost
no reason to doubt the veracity of Rosita's testimony considering fifteen-year agony of the intended beneficiaries.
that she owned the very same stall that Jose was operating and
managing before his death. Her testimony on the earning capacity of
Exemplary damages are imposed by way of example or correction
Jose is enough to establish the rationale for the award.
for the public good, in addition to moral, temperate, liquidated or
compensatory damages. It is awarded as a deterrent to socially
The discrepancy between private respondent Bernardo's claims deleterious actions. In quasi-delict, exemplary damages are awarded
regarding her husband's income as contained in the complaint, when the act or omission which caused injury is attended by gross
where she alleged that Jose was earning no less than P150.00 a day, negligence. 17 Gross negligence has been defined as negligence
and her testimony during trial that he earned P300.00 daily, could characterized by the want of even slight care, acting or omitting to
not obviate the fact that at the time of his death Jose was earning a act in a situation where there is duty to act, not inadvertently but
living as a meat vendor. Undoubtedly, his untimely death deprived willfully and intentionally, with a conscious indifference to
his family of his potential earnings. The allegation in the complaint consequences in so far as other persons may be affected. 18
fixing his income at P150.00 a day was corroborated by the
unqualified declaration of Rosita Noefe that he was earning P150.00
In the instant case, there is a clear showing of BENECO's gross
to P200.00 a day. Obviously the bloated figure of P300.00 given by
negligence when it failed to detect, much less to repair, for an
private respondent Bernardo was an afterthought perhaps impelled
inexcusably long period of (7) years the uninsulated connection
by the prospect of being awarded a greater sum.
which caused the death of Jose Bernardo. The gravity of its
ineptitude was compounded when it installed the service drop line
We now fix Jose's daily gross income at P150.00 or his annual gross way below the prescribed minimum vertical clearance of fifteen (15)
income at P54,000.00. After deducting personal expenses, feet. Again, precautionary measures were not taken in wanton
household and other family obligations, we can safely assume that disregard of the possible consequences. Under these circumstances,
his annual net income at the time of death was P27,000.00 or 50% we find no reason to disturb the finding of respondent court
of his yearly gross earnings of P54,000.00. 12 awarding exemplary damages to private respondent Bernardo in the
amount of P20,000.00.
Accordingly, determining the indemnity for the loss of earning
capacity, we multiply the life expectancy of the deceased as reduced Finally, BENECO questions the grant of moral damages and
to twenty-five (25) years by the annual net income of P27,000.00 attorney's fees on the same ground of non-culpability. It is settled
64
that moral damages are not intended to enrich the complainant but MERCURY DRUG CORPORATION, Petitioner,
to serve to obviate his/her spiritual suffering by reason of the vs. SEBASTIAN M. BAKING, Respondent.
culpable action of the defendant. Its award is aimed at the
restoration of the spiritual status quo ante, and it must be DECISION
commensurate to the suffering inflicted. As a result of the accidental
death of Jose, his widow Caridad and their three (3) minor children
SANDOVAL-GUTIERREZ, J.:
had to scrounge for a living in order to keep their heads above
water. Caridad had to depend on the generosity of her relatives
which came intermittently and far between and augment whatever For our resolution is the instant Petition for Review on
she received from them with her meager income from her small Certiorari1 assailing the Decision2 dated May 30, 2002 and
business. She must have agonized over the prospect of raising her Resolution dated November 5, 2002 of the Court of Appeals in CA-
three (3) small children all by herself given her unstable financial G.R. CV No. 57435, entitled "Sebastian M. Baking, plaintiff-appellee,
condition. For the foregoing reasons, we sustain the award of moral versus Mercury Drug Co. Inc., defendant-appellant."
damages by respondent court except as to the amount thereof. In
the instant case, we are of the opinion that moral damages in the The facts are:
amount of P50,000.00 are more in accord with the injury suffered by
private respondent and her children. On November 25, 1993, Sebastian M. Baking, respondent, went to
the clinic of Dr. Cesar Sy for a medical check-up. On the following
As for attorney's fees, we find no legal nor factual basis to overturn day, after undergoing an ECG, blood, and hematology examinations
the ruling of respondent court on the matter; accordingly, the grant and urinalysis, Dr. Sy found that respondent’s blood sugar and
of P20,000.00 attorney's fees to private respondent Bernardo is triglyceride were above normal levels. Dr. Sy then gave respondent
adopted. two medical prescriptions – Diamicron for his blood sugar and
Benalize tablets for his triglyceride.
WHEREFORE, the assailed Decision of the Court of Appeals dated 5
November 1996 ordering petitioner Benguet Electric Cooperative, Respondent then proceeded to petitioner Mercury Drug Corporation
Inc., to pay private respondent Caridad O. Bernardo as guardian ad (Alabang Branch) to buy the prescribed medicines. However, the
litem for the minors Jojo, Jeffrey and Jo-an, all surnamed Bernardo, saleslady misread the prescription for Diamicron as a prescription
P20,000.00 as exemplary damages, another P20,000.00 for for Dormicum. Thus, what was sold to respondent was Dormicum, a
attorney's fees, and P50,000.00 as indemnity for the death of Jose potent sleeping tablet.
Bernardo, is AFFIRMED with the MODIFICATION that the
P864,000.00 as net income loss is reduced to P675,000.00 and the Unaware that what was given to him was the wrong medicine,
P100,000.00 as moral damages is also reduced to P50,000.00. respondent took one pill of Dormicum on three consecutive days –
November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and
Costs against petitioner. November 8 at 7:30 a.m.

SO ORDERED. On November 8 or on the third day he took the medicine,

respondent figured in a vehicular accident. The car he was driving
collided with the car of one Josie Peralta. Respondent fell asleep
while driving. He could not remember anything about the collision
nor felt its impact.

Suspecting that the tablet he took may have a bearing on his

physical and mental state at the time of the collision, respondent
returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr. Sy
was shocked to find that what was sold to respondent was
Dormicum, instead of the prescribed Diamicron.

Thus, on April 14, 1994, respondent filed with the Regional Trial
Court (RTC), Branch 80 of Quezon City a complaint for damages
against petitioner, docketed as Civil Case No. Q-94-20193.

After hearing, the trial court rendered its Decision dated March 18,
1997 in favor of respondent, thus:

WHEREFORE, premises considered, by preponderance of evidence,

the Court hereby renders judgment in favor of the plaintiff and
against the defendant ordering the latter to pay mitigated damages
as follows:

1. ₱250,000.00 as moral damages;

2. ₱20,000.00 as attorney’s fees and litigation expenses;
3. plus ½% of the cost of the suit.

SO ORDERED.

On appeal, the Court of Appeals, in its Decision, affirmed in toto the

RTC judgment. Petitioner filed a motion for reconsideration but it
was denied in a Resolution dated November 5, 2002.

Hence, this petition.

Petitioner contends that the Decision of the Court of Appeals is not

in accord with law or prevailing jurisprudence.
G.R. No. 156037 May 28, 2007
65
Respondent, on the other hand, maintains that the petition lacks The owners and managers of an establishment or enterprise are
merit and, therefore, should be denied. likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
The issues for our resolution are: occasion of their functions.

1. Whether petitioner was negligent, and if so, whether Employers shall be liable for the damages caused by their employees
such negligence was the proximate cause of respondent’s and household helpers acting within the scope of their assigned
accident; and tasks, even though the former are not engaged in any business or
industry.
2. Whether the award of moral damages, attorney’s fees,
litigation expenses, and cost of the suit is justified. xxx

Article 2176 of the New Civil Code provides: The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed the diligence of
a good father of a family to prevent damage.
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 It is thus clear that the employer of a negligent employee is liable for
relation between the parties, is called a quasi-delict and is governed the damages caused by the latter. When an injury is caused by the
by the provisions of this Chapter. negligence of an employee, there instantly arises a presumption of
the law that there has been negligence on the part of the employer,
either in the selection of his employee or in the supervision over
To sustain a claim based on the above provision, the following
him, after such selection. The presumption, however, may be
requisites must concur: (a) damage suffered by the plaintiff; (b) fault
rebutted by a clear showing on the part of the employer that he has
or negligence of the defendant; and, (c) connection of cause and
exercised the care and diligence of a good father of a family in the
effect between the fault or negligence of the defendant and the
selection and supervision of his employee.6 Here, petitioner's failure
damage incurred by the plaintiff.3
to prove that it exercised the due diligence of a good father of a
family in the selection and supervision of its employee will make it
There is no dispute that respondent suffered damages. solidarily liable for damages caused by the latter.

It is generally recognized that the drugstore business is imbued with As regards the award of moral damages, we hold the same to be in
public interest. The health and safety of the people will be put into order. Moral damages may be awarded whenever the defendant’s
jeopardy if drugstore employees will not exercise the highest degree wrongful act or omission is the proximate cause of the plaintiff’s
of care and diligence in selling medicines. Inasmuch as the matter of physical suffering, mental anguish, fright, serious anxiety,
negligence is a question of fact, we defer to the findings of the trial besmirched reputation, wounded feelings, moral shock, social
court affirmed by the Court of Appeals. humiliation, and similar injury in the cases specified or analogous to
those provided in Article 2219 of the Civil Code.7
Obviously, petitioner’s employee was grossly negligent in selling to
respondent Dormicum, instead of the prescribed Diamicron. Respondent has adequately established the factual basis for the
Considering that a fatal mistake could be a matter of life and death award of moral damages when he testified that he suffered mental
for a buying patient, the said employee should have been very anguish and anxiety as a result of the accident caused by the
cautious in dispensing medicines. She should have verified whether negligence of petitioner’s employee.
the medicine she gave respondent was indeed the one prescribed by
his physician. The care required must be commensurate with the
There is no hard-and-fast rule in determining what would be a fair
danger involved, and the skill employed must correspond with the
and reasonable amount of moral damages, since each case must be
superior knowledge of the business which the law
governed by its own peculiar facts. However, it must be
demands.41awphi1.nét
commensurate to the loss or injury suffered.8 Taking into
consideration the attending circumstances here, we are convinced
Petitioner contends that the proximate cause of the accident was that the amount awarded by the trial court is exorbitant. Thus, we
respondent’s negligence in driving his car. reduce the amount of moral damages from ₱250,000.00 to
₱50,000.00 only.
We disagree.
In addition, we also deem it necessary to award exemplary damages.
Proximate cause is defined as any cause that produces injury in a Article 2229 allows the grant of exemplary damages by way of
natural and continuous sequence, unbroken by any efficient example or correction for the public good. As mentioned earlier, the
intervening cause, such that the result would not have occurred drugstore business is affected with public interest. Petitioner should
otherwise. Proximate cause is determined from the facts of each have exerted utmost diligence in the selection and supervision of its
case, upon a combined consideration of logic, common sense, employees. On the part of the employee concerned, she should
policy, and precedent.5 have been extremely cautious in dispensing pharmaceutical
products. Due to the sensitive nature of its business, petitioner must
Here, the vehicular accident could not have occurred had at all times maintain a high level of meticulousness. Therefore, an
petitioner’s employee been careful in reading Dr. Sy’s prescription. award of exemplary damages in the amount of ₱25,000.00 is in
Without the potent effects of Dormicum, a sleeping tablet, it was order.1awphi1.nét
unlikely that respondent would fall asleep while driving his car,
resulting in a collision. On the matter of attorney’s fees and expenses of litigation, it is
settled that the reasons or grounds for the award thereof must be
Complementing Article 2176 is Article 2180 of the same Code which set forth in the decision of the court.9 Since the trial court’s decision
states: did not give the basis of the award, the same must be deleted. In
Vibram Manufacturing Corporation v. Manila Electric Company,10 we
held:
ART. 2180. 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. Likewise, the award for attorney’s fees and litigation expenses
should be deleted. Well-enshrined is that "an award for attorney’s
fees must be stated in the text of the court’s decision and not in the
xxx dispositive portion only" (Consolidated Bank and Trust Corporation
(Solidbank) v. Court of Appeals, 246 SCRA 193 [1995] and Keng Hua
66
Paper Products, Inc. v. Court of Appeals, 286 SCRA 257 [1998]). This To cover the face value of the checks, plaintiff,
is also true with the litigation expenses where the body of the on October 10, 1979, requested PCIB Money
decision discussed nothing for its basis. Shop's manager Mike Potenciano to effect the
withdrawal of P32,000.00 from his savings
WHEREFORE, we DENY the petition. The challenged Decision and account therein and have it deposited with his
Resolution of the Court of Appeals in CA-G.R. CV No. 57435 are current account with Pilipinas Bank (then Filman
AFFIRMED with modification in the sense that (a) the award of moral Bank), Biñan Branch. Roberto Santos was
damages to respondent is reduced from ₱250,000.00 to ₱50,000.00; requested to make the deposit.
(b) petitioner is likewise ordered to pay said respondent exemplary
damages in the amount of ₱25,000.00; and (c) the award of In depositing in the name of FLORENCIO REYES,
attorney’s fees and litigation expenses is deleted. he inquired from the teller the current account
number of Florencio Reyes to complete the
Costs against petitioner. deposit slip he was accomplishing. He was
informed that it was "815" and so this was the
same current account number he placed on the
SO ORDERED.
deposit slip below the depositor's name
FLORENCIO REYES.

Nothing that the account number coincided with

the name Florencio, Efren Alagasi, then Current
Account Bookkeeper of Pilipinas Bank, thought it
was for Florencio Amador who owned the listed
account number. He, thus, posted the deposted
in the latter's account not noticing that the
depositor's surname in the deposit slip was
REYES.

On October 11, 1979, the October 10, check in

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

On October 15, 1979, the October 10, 1979

check was redeposited but was again
dishonored. Likewise, the October 12, 1979
check in favor of Vicente Tui when presented for
payment on that same date met the same fate
but was advised to try the next clearing. Two
days after the October 10 check was again
dishonored, the payee returned the same to
Florencio Reyes and demanded a cash payment
of its face value which he did if only to save his
name. The October 12, 1979 check was
redeposited on October 18, 1979, but again
dishonored for the reason that the check was
G.R. No. 105410 July 25, 1994 drawn against insufficient fund.

PILIPINAS BANK, petitioner, Furious over the incident, he immediately

vs.HON. COURT OF APPEALS AND FLORENCIO REYES, respondents. proceeded to the bank and urged an immediate
verification of his account.
Gella Reyes Danguilan & Associates for petitioner.
Upon verification, the bank noticed the error.
Santos V. Pampolina, Jr. for private respondent. The P32,000.00 deposit posted in the account of
Florencio Amador was immediately transferred
PUNO, J.: to the account of Reyes upon being cleared by
Florencio Amador that he did not effect a
deposit in the amount of P32,000.00. The
This is a petition for review of the Decision of the respondent transfer having been effected, the bank then
court1 in CA-G.R. CV No. 29524 dated May 13, 1992 which ordered honored the October 12, 1979, check (Exh. "C").
petitioner to pay the private respondent the sum of P50,000.00 as
moral damages, P25,000.00 as attorney's fees and cost of suit.
On the basis of these facts, the trial court ordered petitioner to pay
to the private respondent: (1) P200,000.00 as compensatory
The facts as found both by the trial court2 and the respondent court damages; (2) P100,000.00 as moral damages; (3) P25,000.00 as
are: attorney's fees, and (4) the costs of suit. On appeal to the
respondent court, the judgment was modified as aforestated.
As payments for the purchased shoe materials
and rubber shoes, Florencio Reyes issued In this petition for review, petitioner argues:
postdated checks to Winner Industrial
Corporation for P20,927.00 and Vicente Tui, for
P11,419.50, with due dates on October 10 and I. Respondent Court of Appeals erred on a
12, 1979, respectively. matter of law, in not applying the first sentence
of Article 2179, New Civil Code, in view of its
own finding that respondent Reyes' own

67
 representative committed the mistake in writing "petty thing," like the incorrect account number
down the correct account number; that the bank teller wrote on the initial deposit
slip for the newly-opened joint current account
II. Respondent Court of Appeals erred, on a of the Canlas spouses, that sparked this half-a-
matter of law, in holding that respondent Reyes million-peso damage suit against the bank.
has the right to recover moral damages and in
awarding the amount of P50,000.00, when there While the bank's negligence may not have been
is no legal nor factual basis for it; attended with malice and bad faith,
nevertheless, it caused serious anxiety,
III. The Honorable Court of Appeals erred, on a embarrassment and humiliation to the private
matter of law, in holding petitioner liable for respondents for which they are entitled to
attorney's fees in the amount of P20,000.00, recover reasonable moral damages (American
when there is no legal nor factual basis for it. Express International, Inc. IAC, 167 SCRA 209).
The award of reasonable attorney's fees is
proper for the private respondent's were
We find no merit in the petition.
compelled to litigate to protect their interest
(Art. 2208, Civil Code). However, the absence of
First. For Article 21793 of the Civil Code to apply, it must be malice and bad faith renders the award of
established that private respondent's own negligence was the exemplary damages improper (Globe Mackay
immediate and proximate cause of his injury. The concept of Cable and Radio Corp. vs. Court of Appeals, 176
proximate cause is well defined in our corpus of jurisprudence as SCRA 778).
"any cause which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the result complained of
IN VIEW WHEREOF, the petition is denied there being no reversible
and without which would not have occurred and from which it ought
error in the Decision of the respondent court. Cost against
to have been forseen or reasonably anticipated by a person of
petitioner.
ordinary case that the injury complained of or some similar injury,
would result therefrom as a natural and probable consequence."4 In
the case at bench, the proximate cause of the injury is the SO ORDERED
negligence of petitioner's employee in erroneously posting the cash
deposit of private respondent in the name of another depositor who
had a similar first name. As held by the trial court:

xxx xxx xxx

Applying the test, the bank employee is, on that

basis, deemed to have failed to exercise the G.R. No. 130068 October 1, 1998
degree of care required in the performance of
his duties. As earlier stated, the bank employee
FAR EASTERN SHIPPING COMPANY, petitioner,
posted the cash deposit in the account of
vs. COURT OF APPEALS and PHILIPPINE PORTS
Florencio Amador from his assumption that the
AUTHORITY, respondents.
name Florencio appearing on the ledger without,
however, going through the full name, is the
same Florencio stated in the deposit slip. He G.R. No. 130150 October, 1998
should have continuously gone beyond mere
assumption, which was proven to be erroneous, MANILA PILOTS ASSOCIATION, petitioner,
and proceeded with clear certainty, considering vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING
the amount involved and the repercussions it COMPANY, respondents.
would create on the totality of the person
notable of which is the credit standing of the REGALADO, J.:
person involved should a mistake happen. The
checks issued by the plaintiff in the course of his
business were dishonored by the bank because These consolidated petitions for review on certiorari seek in unison
the ledger of Florencio Reyes indicated a balance to annul and set aside the decision1 of respondent Court of Appeals
insufficient to cover the face value of checks. of November 15, 1996 and its resolution 2 dated July 31, 1997 in CA-
G.R. CV No. 24072, entitled "Philippine Ports Authority, Plaintiff-
Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and
Second. In light of this negligence, the liability of petitioner for moral Manila Pilots' Association, Defendants-Appellants," which affirmed
damages cannot be impugned. So we held in Bank of the Philippine with modification the judgment of the trial court holding the
Islands vs. IAC, et al.5 defendants-appellants therein solidarily liable for damages in favor
of herein private respondent.
The bank is not expected to be infallible but, as
correctly observed by respondent Appellate There is no dispute about the facts as found by the appellate court,
Court, in this instance, it must bear the blame for thus —
not discovering the mistake of its teller despite
the established procedure requiring the papers
and bank books to pass through a battery of . . . On June 20, 1980, the M/V PAVLODAR, flying under the
bank personnel whose duty it is to check and flagship of the USSR, owned and operated by the Far
countercheck them for possible errors. Eastern Shipping Company (FESC for brevity's sake),
Apparently, the officials and employees tasked arrived at the Port of Manila from Vancouver, British
to do that did not perform their duties with due Columbia at about 7:00 o'clock in the morning. The vessel
care, as may be gathered from the testimony of was assigned Berth 4 of the Manila International Port, as
the bank's lone witness, Antonio Enciso, who its berthing space. Captain Roberto Abellana was tasked by
casually declared that "the approving officer the Philippine Port Authority to supervise the berthing of
does not have to see the account numbers and the vessel. Appellant Senen Gavino was assigned by the
all those things. Those are very petty things for Appellant Manila Pilots' Association (MPA for brevity's
the approving manager to look into" (p. 78, sake) to conduct docking maneuvers for the safe berthing
Record on Appeal). Unfortunately, it was a of the vessel to Berth No. 4.

68
 Gavino boarded the vessel at the quarantine anchorage Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy
and stationed himself in the bridge, with the master of the with the decision of the Court of Appeals and both of them elevated
vessel, Victor Kavankov, beside him. After a briefing of their respective plaints to us via separate petitions for review
Gavino by Kavankov of the particulars of the vessel and its on certiorari.
cargo, the vessel lifted anchor from the quarantine
anchorage and proceeded to the Manila International In G. R. No. 130068, which was assigned to the Second Division of
Port. The sea was calm and the wind was ideal for docking this Court, FESC imputed that the Court of Appeals seriously erred:
maneuvers.
1. in not holding Senen C. Gavino and the Manila Pilots'
When the vessel reached the landmark (the big church by Association as the parties solely responsible for the
the Tondo North Harbor) one-half mile from the pier, resulting damages sustained by the pier deliberately
Gavino ordered the engine stopped. When the vessel was ignoring the established jurisprudence on the matter;
already about 2,000 feet from the pier, Gavino ordered
the anchor dropped. Kavankov relayed the orders to the
2. in holding that the master had not exercised the
crew of the vessel on the bow. The left anchor, with two
required diligence demanded from him by the
(2) shackles, were dropped. However, the anchor did not
circumstances at the time the incident happened;
take hold as expected. The speed of the vessel did not
slacken. A commotion ensued between the crew
members. A brief conference ensued between Kavankov 3. in affirming the amount of damages sustained by the
and the crew members. When Gavino inquired what was respondent Philippine Ports Authority despite a strong and
all the commotion about, Kavankov assured Gavino that convincing evidence that the amount is clearly exorbitant
there was nothing to it. and unreasonable;

After Gavino noticed that the anchor did not take hold, he 4. in not awarding any amount of counterclaim prayed for
ordered the engines half-astern. Abellana, who was then by the petitioner in its answer; and
on the pier apron, noticed that the vessel was approaching
the pier fast. Kavankov likewise noticed that the anchor 5. in not granting herein petitioner's claim against pilot
did not take hold. Gavino thereafter gave the "full-astern" Senen C. Gavino and Manila Pilots' Association in the event
code. Before the right anchor and additional shackles that it be held
could be dropped, the bow of the vessel rammed into the liable. 9
apron of the pier causing considerable damage to the pier.
The vessel sustained damage too, (Exhibit "7-Far Eastern Petitioner asserts that since the MV PAVLODAR was under
Shipping). Kavankov filed his sea protest (Exhibit "1- compulsory pilotage at the time of the incident, it was the
Vessel"). Gavino submitted his report to the Chief Pilot compulsory pilot, Capt. Gavino, who was in command and had
(Exhibit "1-Pilot") who referred the report to the Philippine complete control in the navigation and docking of the vessel. It is the
Ports Authority (Exhibit 2-Pilot"). Abellana likewise pilot who supersedes the master for the time being in the command
submitted his report of the incident (Exhibit "B"). and navigation of a ship and his orders must be obeyed in all
respects connected with her navigation. Consequently, he was solely
Per contract and supplemental contract of the Philippine responsible for the damage caused upon the pier apron, and not the
Ports Authority and the contractor for the rehabilitation of owners of the vessel. It claims that the master of the boat did not
the damaged pier, the same cost the Philippine Ports commit any act of negligence when he failed to countermand or
Authority the amount of P1,126,132.25 (Exhibits "D" and overrule the orders of the pilot because he did not see any
"E").3 justifiable reason to do so. In other words, the master cannot be
faulted for relying absolutely on the competence of the compulsory
On January 10, 1983, the Philippine Ports Authority (PPA, for pilot. If the master does not observe that a compulsory pilot is
brevity), through the Solicitor General, filed before the Regional Trial incompetent or physically incapacitated, the master is justified in
Court of Manila, Branch 39, a complaint for a sum of money against relying on the pilot. 10
Far Eastern Shipping Co., Capt. Senen C. Gavino and the Manila
Pilots' Association, docketed as Civil Case No. 83-14958,4 praying Respondent PPA, in its comment, predictably in full agreement with
that the defendants therein be held jointly and severally liable to the ruling of respondent court on the solidary liability of FESC, MPA
pay the plaintiff actual and exemplary damages plus costs of suit. In and Capt. Gavino, stresses the concurrent negligence of Capt.
a decision dated August 1, 1985, the trial court ordered the Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of
defendants therein jointly and severally to pay the PPA the amount MV Pavlodar, as the basis of their solidary liability for damages
of P1,053,300.00 representing actual damages and the costs of suit.5 sustained by PPA. It posits that the vessel was being piloted by Capt.
Gavino with Capt. Kabankov beside him all the while on the bridge of
The defendants appealed to the Court of Appeals and raised the the vessel, as the former took over the helm of MV Pavlodar when it
following issues: (1) Is the pilot of a commercial vessel, under rammed and damaged the apron of the pier of Berth No. 4 of the
compulsory pilotage, solely liable for the damage caused by the Manila International Port. Their concurrent negligence was the
vessel to the pier, at the port of destination, for his negligence? and immediate and proximate cause of the collision between the vessel
(2) Would the owner of the vessel be liable likewise if the damage is and the pier — Capt. Gavino, for his negligence in the conduct of
caused by the concurrent negligence of the master of the vessel and docking maneuvers for the safe berthing of the vessel; and Capt.
the pilot under a compulsory pilotage? Kabankov, for failing to countermand the orders of the harbor pilot
and to take over and steer the vessel himself in the face of imminent
danger, as well as for merely relying on Capt. Gavino during the
As stated at the outset, respondent appellate court affirmed the
berthing procedure. 11
findings of the court a quo except that if found no employer-
employee relationship existing between herein private respondents
Manila Pilots' Association (MPA, for short) and Capt. Gavino.6 This On the other hand, in G.R. No. 130150, originally assigned to the
being so, it ruled instead that the liability of MPA is anchored, not on Court's First Division and later transferred to the Third Division.
Article 2180 of the Civil Code, but on the provisions of Customs MPA, now as petitioner in this case, avers that respondent court's
Administrative Order No. 15-65, 7 and accordingly modified said errors consisted in disregarding and misinterpreting Customs
decision of the trial court by holding MPA, along with its co- Administrative Order No. 15-65 which limits the liability of MPA.
defendants therein, still solidarily liable to PPA but entitled MPA to Said pilots' association asseverates that it should not be held
reimbursement from Capt. Gavino for such amount of the adjudged solidarily liable with Capt. Gavino who, as held by respondent court
pecuniary liability in excess of the amount equivalent to seventy-five is only a member, not an employee, thereof. There being no
percent (75%) of its prescribed reserve employer-employee relationship, neither can MPA be held liable for
fund. 8 any vicarious liability for the respective exercise of profession by its

69
members nor be considered a joint tortfeasor as to be held jointly aforesaid courts and other tribunal or agency
and severally liable. 12 It further argues that there was erroneous thereof within five (5) days therefrom. (Emphasis
reliance on Customs Administrative Order No. 15-65 and the ours.)
constitution and by-laws of MPA, instead of the provisions of the
Civil Code on damages which, being a substantive law, is higher in For petitions for review filed before the Supreme Court,
category than the aforesaid constitution and by-laws of a Section 4(e), Rule 45 specifically requires that such petition
professional organization or an administrative order which bears no shall contain a sworn certification against forum shopping
provision classifying the nature of the liability of MPA for the as provided in the last paragraph of Section 2, Rule 42.
negligence its member pilots. 13
The records show that the law firm of Del Rosario and Del Rosario
As for Capt. Gavino, counsel for MPA states that the former had through its associate, Atty. Herbert A. Tria, is the counsel of record
retired from active pilotage services since July 28, 1994 and has for FESC in both G.R. No. 130068 and G.R. No. 130150.
ceased to be a member of petitioner pilots' association. He is not
joined as a petitioner in this case since his whereabouts are
G.R. No. 130068, which is assigned to the Court's Second Division,
unknown. 14
commenced with the filing by FESC through counsel on August 22,
1997 of a verified motion for extension of time to file its petition for
FESC's comment thereto relied on the competence of the Court of thirty (30) days from August 28, 1997 or until September 27,
Appeals in construing provisions of law or administrative orders as 1997. 20 Said motion contained the following certification against
bases for ascertaining the liability of MPA, and expressed full accord forum shopping 21 signed by Atty. Herbert A. Tria as affiant:
with the appellate court's holding of solidary liability among itself,
MPA and Capt. Gavino. It further avers that the disputed provisions
CERTIFICATION
of Customs Administrative Order No. 15-65 clearly established
MPA's solidary liability. 15
AGAINST FORUM SHOPPING
On the other hand, public respondent PPA, likewise through
representations by the Solicitor General, assumes the same I/we hereby certify that I/we have not
supportive stance it took in G.R. No. 130068 in declaring its total commenced any other action or proceeding
accord with the ruling of the Court of Appeals that MPA is solidarily involving the same issues in the Supreme Court,
liable with Capt. Gavino and FESC for damages, and in its application the Court of Appeals, or any other tribunal or
to the fullest extent of the provisions of Customs Administrative agency; that to the best of my own knowledge,
Order No. 15-65 in relation to MPA's constitution and by-laws which no such action or proceeding is pending in the
spell out the conditions of and govern their respective liabilities. Supreme Court, the Court of Appeals, or any
These provisions are clear and unambiguous as regards MPA's other tribunal or agency; that if I/we should
liability without need for interpretation or construction. Although thereafter learn that a similar action or
Customs Administrative Order No. 15-65 is a mere regulation issued proceeding has been filed or is pending before
by an administrative agency pursuant to delegated legislative the Supreme Court, the Court of Appeals, or any
authority to fix details to implement the law, it is legally binding and other tribunal or agency, I/we undertake to
has the same statutory force as any valid statute. 16 report that fact within five (5) days therefrom to
this Honorable Court.
Upon motion 17 by FESC dated April 24, 1998 in G.R. No. 130150,
said case was consolidated with G.R. No. 130068. 18 This motion having been granted, FESC subsequently filed
its petition on September 26, 1997, this time bearing a
"verification and certification against forum-shopping"
Prefatorily, on matters of compliance with procedural requirements,
executed by one Teodoro P. Lopez on September 24,
it must be mentioned that the conduct of the respective counsel for
1997, 22 to wit:
FESC and PPA leaves much to be desired, to the displeasure and
disappointment of this Court.
VERIFICATION AND CERTIFICATION
Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure 19 incorporates
the former Circular No. 28-91 which provided for what has come to AGAINST FORUM SHOPPING
be known as the certification against forum shopping as an
additional requisite for petitions filed with the Supreme Court and in compliance with Section 4(e), Rule 45 in relation
the Court of Appeals, aside from the other requirements contained
in pertinent provisions of the Rules of Court therefor, with the end to Section 2, Rule 42 of the Revised Rules of Civil Procedure
in view of preventing the filing of multiple complaints involving the
same issues in the Supreme Court, Court of Appeals or different
divisions thereof or any other tribunal or agency. I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
More particularly, the second paragraph of Section 2, Rule 42
provides: 1. That I am the Manager, Claims Department of Filsov
Shipping Company, the local agent of petitioner in this
case.
xxx xxx xxx

2. That I have caused the preparation of this Petition for

The petitioner shall also submit together with Review on Certiorari.
the petition a certification under oath that he
has not theretofore commenced any other
action involving the same issues in the Supreme 3. That I have read the same and the allegations therein
Court, the Court of Appeals or different divisions contained are true and correct based on the records of this
thereof, or any other tribunal or agency; if there case.
is such other action or proceeding, he must state
the status of the same; and if he should 4. That I certify that petitioner has not commenced any
thereafter learn that a similar action or other action or proceeding involving the same issues in the
proceeding has been filed or is pending before Supreme Court or Court of Appeals, or any other tribunal
the Supreme Court, the Court of Appeals or or agency, that to the best of my own knowledge, no such
different divisions thereof, or any other tribunal action or proceeding is pending in the Supreme Court, the
or agency, he undertakes to promptly inform the Court of Appeals or any other tribunal or agency, that if I

70
 should thereafter learn that a similar action or proceeding therefore, to exert every effort and consider it his duty to assist in
has been filed or is pending before the Supreme Court, the the speedy and efficient administration of justice. 31 Being an officer
Court of Appeals, or any other tribunal or agency, I of the court, a lawyer has a responsibility in the proper
undertake to report the fact within five (5) days therefrom administration of justice. Like the court itself, he is an instrument to
to this Honorable Court. (Italics supplied for emphasis.) advance its ends — the speedy, efficient, impartial, correct and
inexpensive adjudication of cases and the prompt satisfaction of
Reviewing the records, we find that the petition filed by MPA in G.R. final judgments. A lawyer should not only help attain these
No. 130150 then pending with the Third Division was duly filed on objectives but should likewise avoid any unethical or improper
August 29, 1997 with a copy thereof furnished on the same date by practices that impede, obstruct or prevent their realization, charged
registered mail to counsel for FESC. 23 Counsel of record for MPA. as he is with the primary task of assisting in the speedy and efficient
Atty. Jesus P. Amparo, in his verification accompanying said petition administration of justice.32
dutifully revealed to the Court that —
Sad to say, the members of said law firm sorely failed to observe
xxx xxx xxx their duties as responsible members of the Bar. Their actuations are
indicative of their predisposition to take lightly the avowed duties of
officers of the Court to promote respect for law and for legal
3. Petitioner has not commenced any other action or
processes. 33 We cannot allow this state of things to pass judicial
proceeding involving the same issues in this Honorable
muster.
Court, the Court of Appeals or different Divisions thereof,
or any other tribunal or agency, but to the best of his
knowledge, there is an action or proceeding pending in this In view of the fact that at around the time these petitions were
Honorable Court, entitled Far Eastern Shipping Co., commenced, the 1997 Rules of Civil Procedure had just taken effect,
Petitioner, vs. Philippine Ports Authority and Court of the Court treated infractions of the new Rules then with relative
Appeals with a Motion for Extension of time to file Petition liberality in evaluating full compliance therewith. Nevertheless, it
For Review by Certiorari filed sometime on August 18, would do well to remind all concerned that the penal provisions of
1987. If undersigned counsel will come to know of any Circular No. 28-91 which remain operative provides, inter alia:
other pending action or claim filed or pending he
undertakes to report such fact within five (5) days to this 3. Penalties. —
Honorable Court.24 (Emphasis supplied.)
xxx xxx xxx
Inasmuch as MPA's petition in G.R. No. 130150 was posted by
registered mail on August 29, 1997 and taking judicial notice of the (c) The submission of a false certification under
average period of time it takes local mail to reach its destination, by Par. 2 of the Circular shall likewise constitute
reasonable estimation it would be fair to conclude that when FESC contempt of court, without prejudice to the filing
filed its petition in G.R. No. 130068 on September 26, 1997, it would of criminal action against the guilty party. The
already have received a copy of the former and would then have lawyer may also be subjected to disciplinary
knowledge of the pendency of the other petition initially filed with proceedings.
the First Division. It was therefore incumbent upon FESC to inform
the Court of that fact through its certification against forum
It must be stressed that the certification against forum shopping
shopping. For failure to make such disclosure, it would appear that
ordained under the Rules is to be executed by the petitioner, and
the aforequoted certification accompanying the petition in G.R. No.
not by counsel. Obviously it is the petitioner, and not always the
130068 is defective and could have been a ground for dismissal
counsel whose professional services have been retained for a
thereof.
particular case, who is in the best position to know whether he or it
actually filed or caused the filing of a petition in that case. Hence, a
Even assuming that FESC had not yet received its copy of MPA's certification against forum shopping by counsel is a defective
petition at the time it filed its own petition and executed said certification. It is clearly equivalent to non-compliance with the
certification, its signatory did state "that if I should thereafter learn requirement under Section 2, Rule 42 in relation to Section 4, Rule
that a similar action or proceeding has been filed or is pending 45, and constitutes a valid cause for dismissal of the petition.
before the Supreme Court, the Court of Appeals or any other
tribunal or agency, I undertake to report the fact within five (5) days
Hence, the initial certification appended to the motion for extension
therefrom to this Honorable Court." 25 Scouring the records page by
of time to file petition in G.R. No. 130068 executed in behalf of FESC
page in this case, we find that no manifestation concordant with
by Atty. Tria is procedurally deficient. But considering that it was a
such undertaking was then or at any other time thereafter ever filed
superfluity at that stage of the proceeding, it being unnecessary to
by FESC nor was there any attempt to bring such matter to the
file such a certification with a mere motion for extension, we shall
attention of the Court. Moreover, it cannot feign non-knowledge of
disregard such error. Besides, the certification subsequently
the existence of such other petition because FESC itself filed the
executed by Teodoro P. Lopez in behalf of FESC cures that defect to
motion for consolidation in G.R. No. 130150 of these two cases on
a certain extent, despite the inaccuracies earlier pointed out. In the
April 24, 1998.
same vein, we shall consider the verification signed in behalf of MPA
by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial
It is disturbing to note that counsel for FESC, the law firm of Del compliance inasmuch as it served the purpose of the Rules of
Rosario and Del Rosario, displays an unprofessional tendency of informing the Court of the pendency of another action or
taking the Rules for granted, in this instance exemplified by its pro proceeding involving the same issues.
forma compliance therewith but apparently without full
comprehension of and with less than faithful commitment to its
It bears stressing that procedural rules are instruments in the speedy
undertakings to this Court in the interest of just, speedy and orderly
and efficient administration of justice. They should be used to
administration of court proceedings.
achieve such end and not to derail it. 34

As between the lawyer and the courts, a lawyer owes candor,

Counsel for PPA did not make matters any better. Despite the fact
fairness and good faith to the court. 26 He is an officer of the court
that, save for the Solicitor General at the time, the same legal team
exercising a privilege which is indispensable in the administration of
of the Office of the Solicitor General (OSG, for short) composed of
justice. 27 Candidness, especially towards the courts, is essential for
Assistant Solicitor General Roman G. Del Rosario and Solicitor Luis F.
the expeditious administration of justice. Courts are entitled to
Simon, with the addition of Assistant Solicitor General Pio C.
expect only complete honesty from lawyers appearing and pleading
Guerrero very much later in the proceedings, represented PPA
before them. 28 Candor in all dealings is the very essence of
throughout the appellate proceedings in both G.R. No. 130068 and
honorable membership in the legal profession. 29 More specifically, a
G.R. No. 130150 and was presumably fully acquainted with the facts
lawyer is obliged to observe the rules of procedure and not to
and issues of the case, it took the OSG an inordinately and almost
misuse them to defeat the ends of justice. 30 It behooves a lawyer,
71
unreasonably long period of time to file its comment, thus unduly their official tasks. 43 These ethical duties are rendered even more
delaying the resolution of these cases. It took several changes of exacting as to them because, as government counsel, they have the
leadership in the OSG — from Silvestre H. Bello III to Romeo C. dela added duty to abide by the policy of the State to promote a high
Cruz and, finally, Ricardo P. Galvez — before the comment in behalf standard of ethics in public service. 44 Furthermore, it is incumbent
of PPA was finally filed. upon the OSG, as part of the government bureaucracy, to perform
and discharge its duties with the highest degree of professionalism,
In G.R. No. 130068, it took eight (8) motions for extension of time intelligence and skill 45 and to extend prompt, courteous and
totaling 210 days, a warning that no further extensions shall be adequate service to the public. 46
granted, and personal service on the Solicitor General himself of the
resolution requiring the filing of such comment before the OSG Now, on the merits of the case. After a judicious examination of the
indulged the Court with the long required comment on July 10, records of this case, the pleadings filed, and the evidence presented
1998. 35 This, despite the fact that said office was required to file its by the parties in the two petitions, we find no cogent reason to
comment way back on November 12, 1997. 36 A closer scrutiny of reverse and set aside the questioned decision. While not entirely a
the records likewise indicates that petitoner FESC was not even case of first impression, we shall discuss the issues seriatim and,
furnished a copy of said comment as required by Section 5, Rule 42. correlatively by way of a judicial once-over, inasmuch as the matters
Instead, a copy thereof was inadvertently furnished to MPA which, raised in both petitions beg for validation and updating of well-worn
from the point of view of G.R. No. 130068, was a non-party. 37 The maritime jurisprudence. Thereby, we shall write finis to the endless
OSG fared slightly better in G.R. No. 130150 in that it took only six finger-pointing in this shipping mishap which has been stretched
(6) extensions, or a total of 180 days, before the comment was beyond the limits of judicial tolerance.
finally filed. 38 And while it properly furnished petitioner MPA with a
copy of its comment, it would have been more desirable and The Port of Manila is within the Manila Pilotage District which is
expedient in this case to have furnished its therein co-respondent under compulsory pilotage pursuant to Section 8, Article III of
FESC with a copy thereof, if only as a matter of professional Philippine Ports Authority Administrative Order No. 03-85, 47 which
courtesy. 39 provides that:

This undeniably dilatory disinclination of the OSG to seasonably file Sec. 8. Compulsor Pilotage Service. — For entering a
required pleadings constitutes deplorable disservice to the tax- harbor and anchoring thereat, or passing through rivers or
paying public and can only be categorized as censurable inefficiency straits within a pilotage district, as well as docking and
on the part of the government law office. This is most certainly undocking at any pier/wharf, or shifting from one berth or
professionally unbecoming of the OSG. another, every vessel engaged in coastwise and foreign
trade shall be under compulsory pilotage. . . .
Another thing that baffles the Court is why the OSG did not take the
inititive of filing a motion for consolidation in either G.R. No. 130068 In case of compulsory pilotage, the respective duties and
or G.R. No. 130150, considering its familiarity with the background responsibilities of the compulsory pilot and the master have been
of the case and if only to make its job easier by having to prepare specified by the same regulation in this wise:
and file only one comment. It could not have been unaware of the
pendency of one or the other petition because, being counsel for
Sec. 11. Control of vessels and liability for damage. — On
respondent in both cases, petitioner is required to furnish it with a
compulsory pilotage grounds, the Harbor Pilot providing
copy of the petition under pain of dismissal of the petition for failure
the service to a vessel shall be responsible for the damage
otherwise. 40
caused to a vessel or to life and property at ports due to
his negligence or fault. He can only be absolved from
Besides, in G.R. 130068, it prefaces its discussions thus — liability if the accident is caused by force majeure or
natural calamities provided he has exercised prudence and
Incidentally, the Manila Pilots' Association (MPA), one of extra diligence to prevent or minimize damage.
the defendants-appellants in the case before the
respondent Court of Appeals, has taken a separate appeal The Master shall retain overall command of the vessel
from the said decision to this Honorable Court, which was even on pilotage grounds whereby he can countermand or
docketed as G.R. No. 130150 and entitled "Manila Pilots' overrule the order or command of the Harbor Pilot on
Association, Petitioner, versus Philippine Ports Authority beard. In such event, any damage caused to a vessel or to
and Far Eastern Shipping Co., Respondents." 41 life and property at ports by reason of the fault or
negligence of the Master shall be the responsibility and
Similarly, in G.R. No. 130150, it states — liability of the registered owner of the vessel concerned
without prejudice to recourse against said Master.
Incidentally, respondent Far Eastern Shipping Co. (FESC)
had also taken an appeal from the said decision to this Such liability of the owner or Master of the vessel or its
Honorable Court, docketed as G.R. No. 130068, entitled pilots shall be determined by competent authority in
"Far Eastern Shipping Co. vs. Court of Appeals and appropriate proceedings in the light of the facts and
Philippine Ports Authority." 42 circumstances of each particular case.

We find here a lackadaisical attitude and complacency on the part of Sec. 32. Duties and responsibilities of the Pilot or Pilots'
the OSG in the handling of its cases and an almost reflexive Association. — The duties and responsibilities of the
propensity to move for countless extensions, as if to test the Harbor Pilot shall be as follows:
patience of the Court, before favoring it with the timely submission
of required pleadings. xxx xxx xxx

It must be emphasized that the Court can resolve cases only as fast f) a pilot shall be held responsible for the direction of a
as the respective parties in a case file the necessary pleadings. The vessel from the time he assumes his work as a pilot
OSG, by needlessly extending the pendency of these cases through thereof until he leaves it anchored or berthed
its numerous motions for extension, came very close to exhausting safely; Provided, however, that his responsibility shall
this Court's forbearance and has regrettably fallen short of its duties cease at the moment the Master neglects or refuses to
as the People's Tribune. carry out hisorder.

The OSG is reminded that just like other members of the Bar, the Customs Administrative Order No. 15-65 issued twenty years earlier
canons under the Code of Professional Responsibility apply with likewise provided in Chapter I thereof for the responsibilities of
equal force on lawyers in government service in the discharge of pilots:
72
 Par. XXXIX. — A Pilot shall be held responsible vice and should give all directions as to speed, course, stopping and
for the direction of a vessel from the time he reversing anchoring, towing and the like. And when a licensed pilot
assumes control thereof until he leaves it is employed in a place where pilotage is compulsory, it is his duty to
anchored free from shoal: Provided, That his insist on having effective control of the vessel, or to decline to act as
responsibility shall cease at the moment the pilot. Under certain systems of foreign law, the pilot does not take
master neglects or refuses to carry out his entire charge of the vessel, but is deemed merely the adviser of the
instructions. master, who retains command and control of the navigation even in
localities where pilotage is compulsory. 55
xxx xxx xxx
It is quite common for states and localities to provide for
Par. XLIV. — Pilots shall properly and safely compulsory pilotage, and safety laws have been enacted requiring
secure or anchor vessels under their control vessels approaching their ports, with certain exceptions, to take on
when requested to do so by the master of such board pilots duly licensed under local law. The purpose of these laws
vessels. is to create a body of seamen thoroughly acquainted with the
harbor, to pilot vessels seeking to enter or depart, and thus protect
life and property from the dangers of navigation. 56
I. G.R. No. 130068

In line with such established doctrines, Chapter II of Customs

Petitioner FESC faults the respondent court with serious error in not
Administrative Order No. 15-65 prescribes the rules for compulsory
holding MPA and Capt. Gavino solely responsible for the damages
pilotage in the covered pilotage districts, among which is the Manila
cause to the pier. It avers that since the vessel was under
Pilotage District,
compulsory pilotage at the time with Capt. Gavino in command and
viz. —
having exclusive control of the vessel during the docking maneuvers,
then the latter should be responsible for damages caused to the
pier. 48 It likewise holds the appellate court in error for holding that PARAGRAPH I. — Pilotage for entering a harbor and
the master of the ship, Capt. Kabankov, did not exercise the required anchoring thereat, as well as docking and undocking in any
diligence demanded by the circumstances. 49 pier or shifting from one berth to another shall be
compulsory, except Government vessels and vessels of
foreign governments entitled to courtesy, and other
We start our discussion of the successive issues bearing in mind the
vessels engaged solely in river or harbor work, or in a daily
evidentiary rule in American jurisprudence that there is a
ferry service between ports which shall be exempt from
presumption of fault against a moving vessel that strikes a stationary
compulsory pilotage provisions of these
object such as a dock or navigational aid. In admiralty, this
regulations: provided, however, that compulsory pilotage
presumption does more than merely require the ship to go forward
shall not apply in pilotage districts whose optional pilotage
and produce some evidence on the presumptive matter. The moving
is allowed under these regulations.
vessel must show that it was without fault or that the collision was
occasioned by the fault of the stationary object or was the result of
inevitable accident. It has been held that such vessel must exhaust Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar
every reasonable possibility which the circumstances admit and into Berth 4 of the Manila International Port. Upon assuming such
show that in each, they did all that reasonable care required. 50 In office as compulsory pilot, Capt. Gavino is held to the universally
the absence of sufficient proof in rebuttal, the presumption of fault accepted high standards of care and diligence required of a pilot,
attaches to a moving vessel which collides with a fixed object and whereby he assumes to have skill and knowledge in respect to
makes a prima facie case of fault against the vessel. 51 Logic and navigation in the particular waters over which his license extends
experience support this presumption: superior to and more to be trusted than that of the master. 57 A pilot
57 should have a thorough knowledge of general and local
regulations and physical conditions affecting the vessel in his charge
The common sense behind the rule makes the
and the waters for which he is licensed, such as a particular harbor
burden a heavy one. Such accidents simply do
or river.
not occur in the ordinary course of things unless
the vessel has been mismanaged in some way. It
is nor sufficient for the respondent to produce He is not held to the highest possible degree of skill and care, but
witnesses who testify that as soon as the danger must have and exercise the ordinary skill and care demanded by the
became apparent everything possible was done circumstances, and usually shown by an expert in his profession.
to avoid an accident. The question remains, How Under extraordinary circumstancesm, a pilot must exercise
then did the collision occur? The answer must be extraordinary care. 58
either that, in spite of the testimony of the
witnesses, what was done was too little or too In Atlee vs. The Northwesrern Union Packet Company. 59 Mr. Justice
late or, if not, then the vessel was at fault for Miller spelled out in great detail the duties of a pilot:
being in a position in which an unavoidable
collision would occur. 52 . . . (T)he pilot of a river steamer, like the harbor pilot, is
selected for his personal knowledge of the topography
The task, therefore, in these cases is to pinpoint who was through which he steers his vessel. In the long course of a
negligent — the master of the ship, the harbor pilot or thousand miles in one of these rivers, he must be familiar
both. with the appearance of the shore on each side of the river
as he goes along. Its banks, towns, its landings, its houses
A pilot, in maritime law, is a person duly qualified, and licensed, to and trees, are all landmarks by which he steers his vessel.
conduct a vessel into or out of ports, or in certain waters. In a broad The compass is of little use to him. He must know where
sense, the term "pilot" includes both (1) those whose duty it is to the navigable channel is, in its relation to all these external
guide vessels into or out of ports, or in particular waters and (2) objects, especially in the night. He must also be familiar
those entrusted with the navigation of vessels on the high with all dangers that are permanently located in the
seas. 53 However, the term "pilot" is more generally understood as a course of the river, as sand-bars, snags, sunken rocks or
person taken on board at a particular place for the purpose of trees or abandoned vessels orbarges. All this he must
conducting a ship through a river, road or channel, or from a port. 54 know and remember and avoid. To do this, he must be
constantly informed of the changes in the current of the
river, of the sand-bars newly made,of logs or snags, or
Under English and American authorities, generally speaking, the
other objects newly presented, against which his vessel
pilot supersedes the master for the time being in the command and
might be injured.
navigation of the ship, and his orders must be obeyed in all matters
connected with her navigation. He becomes the master pro hac

73
 xxx xxx xxx precisely." Hence, the Court cannot give much
weight or consideration to this portion of
It may be said that this is exacting a very high order of Gavino's testimony." 61
ability in a pilot. But when we consider the value of the
lives and property committed to their control, for in this An act may be negligent if it is done without the competence that a
they are absolute masters, the high compensation they reasonable person in the position of the actor would recognize as
receive, the care which Congress has taken to secure by necessary to prevent it from creating an unreasonable risk of harm
rigid and frequent examinations and renewal of licenses, to another. 62 Those who undertake any work calling for special skills
this very class of skill, we do not think we fix the standard are required not only to exercise reasonable care in what they do
too high. but also possess a standard minimum of special knowledge and
ability. 63
Tested thereby, we affirm respondent court's finding that Capt.
Gavino failed to measure up to such strict standard of care and Every man who offers his services to another, and is employed,
diligence required of pilots in the performance of their duties. assumes to exercise in the employment such skills he possesses,
Witness this testimony of Capt. Gavino: with a reasonable degree of diligence. In all these employments
where peculiar skill is requisite, if one offers his services he is
Court: You have testified before that the reason why the understood as holding himself out to the public as possessing the
vessel bumped the pier was because the anchor was not degree of skill commonly possessed by others in the same
released immediately or as soon as you have given the employment, and if his pretensions are unfounded he commits a
order. Do you remember having srated that? species of fraud on every man who employs him in reliance on his
public profession. 64
A Yes, your Honor.
Furthermore, there is an obligation on all persons to take the care
which, under ordinary circumstances of the case, a reasonable and
Q And you gave this order to the captain of the vessel?
prudent man would take, and the omission of that care constitutes
negligence. 65 Generally, the degree of care required is graduated
A Yes, your Honor. according to the danger a person or property attendant upon the
activity which the actor pursues or the instrumentality which he
Q By that testimony, you are leading the Court to uses. The greater the danger the greater the degree of care
understand that if that anchor was released immediately required. What is ordinary under extraordinary of conditions is
at the time you gave the order, the incident would not dictated by those conditions; extraordinary risk demands
have happened. Is that correct? extraordinary care. Similarly, the more imminent the danger, the
higher the degree of care. 66
A Yes, sir, but actually it was only a presumption on my
part because there was a commotion between the officers We give our imprimatur to the bases for the conclusion of the Court
who are in charge of the dropping of the anchor and the of Appeals that Capt. Gavino was indeed negligent in the
captain. I could not understand their language, it was in performance of his duties:
Russian, so I presumed the anchor was not dropped on
time. xxx xxx xxx

Q So, you are not sure whether it was really dropped on . . . As can be gleaned from the logbook, Gavino
time or not? ordered the left anchor and two (2) shackles
dropped at 8:30 o'clock in the morning. He
A I am not sure, your Honor. ordered the engines of the vessel stopped at
8:31 o'clock. By then,Gavino must have realized
xxx xxx xxx that the anchor did not hit a hard object and was
not clawed so as to reduce the momentum of
the vessel. In point of fact, the vessel continued
Q You are not even sure what could have caused the travelling towards the pier at the same speed.
incident. What factor could have caused the incident? Gavino failed to react, At 8:32 o'clock, the two
(2) tugboats began to push the stern part of the
A Well, in this case now, because either the anchor was vessel from the port side bur the momentum of
not dropped on time or the anchor did not hold, that was the vessel was not contained. Still, Gavino did
the cause of the incident, your Honor. 60 not react. He did not even order the other
anchor and two (2) more shackles dropped to
It is disconcertingly riddled with too much incertitude and manifests arrest the momentum of the vessel. Neither did
a seeming indifference for the possibly injurious consequences his he order full-astern. It was only at 8:34
commands as pilot may have. Prudence required that he, as pilot, o'clock, or four (4) minutes, after the anchor was
should have made sure that his directions were promptly and strictly dropped that Gavino reacted. But his reaction
followed. As correctly noted by the trial court — was even (haphazard) because instead of
arresting fully the momentum of the vessel with
the help of the tugboats, Gavino ordered merely
Moreover, assuming that he did indeed give the
"half-astern". It took Gavino another minute to
command to drop the anchor on time, as pilot he
order a "full-astern". By then, it was too late. The
should have seen to it that the order was carried
vessel's momentum could no longer be arrested
out, and he could have done this in a number of
and, barely a minute thereafter, the bow of the
ways, one of which was to inspect the bow of
vessel hit the apron of the pier. Patently, Gavino
the vessel where the anchor mechanism was
miscalculated. He failed to react and undertake
installed. Of course, Captain Gavino makes
adequate measures to arrest fully the
reference to a commotion among the crew
momentum of the vessel after the anchor failed
members which supposedly caused the delay in
to claw to the seabed. When he reacted, the
the execution of the command. This account was
same was even (haphazard). Gavino failed to
reflected in the pilot's report prepared four
reckon the bulk of the vessel, its size and its
hours later, but Capt. Kavankov, while not
cargo. He erroneously believed that only one (1)
admitting whether or not such a commotion
anchor would suffice and even when the anchor
occurred, maintained that the command to drop
failed to claw into the seabed or against a hard
anchor was followed "immediately and
74
 object in the seabed, Gavino failed to order the particular, he is bound to see that there is sufficient watch on deck,
other anchor dropped immediately. His claim and that the men are attentive to their duties, also that engines are
that the anchor was dropped when the vessel stopped, towlines cast off, and the anchors clear and ready to go at
was only 1,000 feet from the pier is but a the pilot's order. 72
belated attempt to extricate himself from the
quagmire of his own insouciance and negligence. A perusal of Capt. Kabankov's testimony makes it apparent that he
In sum, then, Appellants' claim that the incident was remiss in the discharge of his duties as master of the ship,
was caused by "force majeure" is barren of leaving the entire docking procedure up to the pilot, instead of
factual basis. maintaining watchful vigilance over this risky maneuver:

xxx xxx xxx Q Will you please tell us whether you have the right to
intervene in docking of your ship in the harbor?
The harbor pilots are especially trained for this
job. In the Philippines, one may not be a harbor A No sir, I have no right to intervene in time of docking,
pilot unless he passed the required examination only in case there is imminent danger to the vessel and to
and training conducted then by the Bureau of the pier.
Custom, under Customs Administrative Order
No. 15-65, now under the Philippine Ports
Q Did you ever intervene during the time that your ship
Authority under PPA Administrative Order 63-85,
was being docked by Capt. Gavino?
Paragraph XXXIX of the Customs Administrative
Order No. 15-65 provides that "the pilot shall be
held responsible for the direction of the vessel A No sir, I did not intervene at the time when the pilot was
from the time he assumes control thereof, until docking my ship.
he leaves it anchored free from shoal: Provided,
that his responsibility shall cease at the.moment Q Up to the time it was actually docked at the pier, is that
the master neglects or refuse(s) to carry out his correct?
instructions." The overall direction regarding the
procedure for docking and undocking the vessel A No sir, I did not intervene up to the very moment when
emanates from the harbor pilot. In the present the vessel was docked.
recourse, Gavino failed to live up to his
responsibilities and exercise reasonable care or
that degree of care required by the exigencies of xxx xxx xxx
the occasion. Failure on his part to exercise the
degree of care demanded by the circumstances Atty. Del Rosario (to the witness)
is negligence (Reese versus Philadelphia & RR Co.
239 US 363, 60 L ed. 384, 57 Am Jur, 2d page Q Mr. Witness, what happened, if any, or was there
418). 67 anything unusual that happened during the docking?

This affirms the findings of the trial court regarding Capt. Gavino's A Yes sir, our ship touched ihe pier and the pier was
negligence: damaged.

This discussion should not however, divert the Court (to the witness)
court from the fact that negligence in
manuevering the vessel must be attributed to
Q When you said touched the pier, are you leading the
Capt. Senen Gavino. He was an experienced pilot
court to understand that your ship bumped the pier?
and by this time should have long familiarized
himself with the depth of the port and the
distance he could keep between the vessel and A I believe that my vessel only touched the pier but the
port in order to berth safely. 68 impact was very weak.

The negligence on the part of Capt. Gavino is evident; but Capt. Q Do you know whether the pier was damaged as a result
Kabancov is no less responsible for the allision. His unconcerned of that slight or weak impact?
lethargy as master of the ship in the face of troublous exigence
constitutes negligence. A Yes sir, after the pier was damaged.

While it is indubitable that in exercising his functions a pilot is in sole xxx xxx xxx
command of the ship 69 and supersedes the master for the time
being in the command and navigation of a ship and that he becomes Q Being most concerned with the safety of your vessel, in
master pro hac vice of a vessel piloted by him, 70 there is the maneuvering of your vessel to the port, did you
overwhelming authority to the effect that the master does not observe anything irregular in the maneuvering by Capt.
surrender his vessel to the pilot and the pilot is not the master. The Gavino at the time he was trying to cause the vessel to be
master is still in command of the vessel notwithstanding the docked at the pier?
presence of a pilot. There are occasions when the master may and
should interfere and even displace the pilot, as when the pilot is
A You mean the action of Capt. Gavino or his condition?
obviously incompetent or intoxicated and the circumstances may
require the master to displace a compulsory pilot because of
incompetency or physical incapacity. If, however, the master does Court:
nor observe that a compulsory pilot is incompetent or physically
incapacitated, the master is justified in relying on the pilot, but not Q Not the actuation that conform to the safety maneuver
blindly. 71 of the ship to the harbor?

The master is not wholly absolved from his duties while a pilot is on A No sir, it was a usual docking.
board his vessel, and may advise with or offer suggestions to him.
He is still in command of the vessel, except so far as her navigation is
concerned, and must cause the ordinary work of the vessel to be
properly carried on and the usual precaution taken. Thus, in
75
Q By that statement of yours, you are leading the court to Solicitor Abad (to the witness)
understand that there was nothing irregular in the docking
of the ship? Q Now, you were standing with the pilot on the bridge of
the vessel before the inicident happened, were you not?
A Yes sir, during the initial period of the docking, there was
nothing unusual that happened. A Yes sir, all the time, I was standing with the pilot.

Q What about in the last portion of the docking of the Q And so whatever the pilot saw, you could also see from
ship, was there anything unusual or abnormal that that point of view?
happened?
A That is right.
A None Your Honor, I believe that Capt. Gavino thought
that the anchor could keep or hold the vessel.
Q Whatever the piler can read from the panel of the
bridge, you also could read, is that correct?
Q You want us to understand, Mr. Witness, that the
dropping of the anchor of the vessel was nor timely?
A What is the meaning of panel?

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

Q All indications necessary for men on the bridge to be
anchor was dropped earlier and with more shackles, there
informed of the movements of the ship?
could not have been an incident.

A That is right.
Q So you could not precisely tell the court that the
dropping of the anchor was timery because you are not
well aware of the seabed, is that correct? Q And whatever sound the captain . . . Capt. Gavino would
hear from the bridge, you could also hear?
A Yes sir, that is right.
A That is right.
xxx xxx xxx
Q Now, you said that when the command to lower the
anchor was given, it was obeyed, is that right?
Q Alright, Capt. Kavankov, did you come to know later
whether the anchor held its ground so much so that the
vessel could not travel? A This command was executed by the third mate and
boatswain.
A It is difficult for me to say definitely. I believe that the
anchor did not hold the ship. Court (to the witness)

Q You mean you don't know whether the anchor blades Q Mr. Witness, earlier in today's hearing, you said that you
stuck to the ground to stop the ship from further moving? did not intervene with the duties of the pilot and that, in
your opinion, you can only intervene if the ship is placed in
imminent danger, is that correct?
A Yes sir, it is possible.

A That is right, I did say that.

Q What is possible?

Q In your observation before the incident actually

A I think, the 2 shackles were not enough to hold the
happened, did you observe whether or not the ship,
vessel.
before the actual incident, the ship was placed in
imminent danger?
Q Did you know that the 2 shackles were dropped?
A No sir, I did not observe.
A Yes sir, I knew that.
Q By that answer, are you leading the court to understand
Q If you knew that the shackles were not enough to hold that because you did not intervene and because you
the ship, did you not make any protest to the pilot? believed that it was your duty to intervene when the
vessel is placed in imminent danger to which you did not
A No sir, after the incident, that was my assumption. observe any imminent danger thereof, you have not
intervened in any manner to the command of the pilot?
Q Did you come to know later whether that presumption is
correct? A That is right, sir.

A I still don't know the ground in the harbor or the depths. xxx xxx xxx

Q So from the beginning, you were not competent Q Assuminp that you disagreed with the pilot regarding
whether the 2 shackles were also dropped to hold the the step being taken by the pilot in maneuvering the
ship? vessel, whose command will prevail, in case of imminent
danger to the vessel?
A No sir, at the beginning, I did not doubt it because I
believe Capt. Gavino to be an experienced pilot and he A I did nor consider the situation as having an imminent
should be more aware as to the depths of the harbor and danger. I believed that the vessel will dock alongside the
the ground and I was confident in his actions. pier.

xxx xxx xxx Q You want us to understand that you did not see an
imminent danger to your ship, is that what you mean?

76
A Yes sir, up to the very last moment, I believed that there A Yes sir, because the anchor dragged on the ground later.
was no imminent danger.
Q And after a few moments when the anchor should have
Q Because of that, did you ever intervene in the command taken hold the seabed bur not done (sic), as you expected,
of the pilot? you already were alerted that there was danger to the
ship, is that correct?
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct. A Yes sir, I was alerted but there was no danger.

Solicitor Abad (to the witness) Q And you were alerted that somebody was wrong?

Q As a captain of M/V Pavlodar, you consider docking A Yes sir, I was alerted.
maneuvers a serious matter, is it not?
Q And this alert vou assumed was the ordinary alertness
A Yes sir, that is right. that you have for normal docking?

Q Since it affects not only the safety of the port or pier, A Yes sir, I mean that it was usual condition of any man in
but also the safety of the vessel and the cargo, is it not? time of docking to be alert.

A That is right. Q And that is the same alertness when the anchor did not
hold onto the ground, is that correct?
Q So that, I assume that you were watching Capt. Gavino
very closely at the time he was making his commands? A Yes sir, me and Capt. Gavino (thought) that the anchor
will hold the ground.
A I was close to him, I was hearing his command and being
executed. Q Since, as you said that you agreed all the while with the
orders of Capt. Gavino, you also therefore agreed with him
Q And that you were also alert for any possible mistakes in his failure to take necessary precaution against the
he might commit in the maneuvering of the vessel? eventuality that the anchor will not hold as expected?

A Yes sir, that is right. Atty. Del Rosario:

Q But at no time during the maneuver did you issue order May I ask that the question . . .
contrary to the orders Capt. Gavino made?
Solicitor Abad:
A No sir.
Never mind, I will reform the question.
Q So that you were in full accord with all of Capt. Gavino's
orders? xxx xxx xxx

A Yes sir. Solicitor Abad (to the witness)

Q Because, otherwise, you would have issued order that Q Is it not a fact that the vessel bumped the pier?
would supersede his own order?
A That is right, it bumped the pier.
A In that case, I should t,ke him away from his command
or remove the command from him. Q For the main reason that the anchor of the vessel did
not hold the ground as expected?
Court (to the witness)
A Yes sir, that is my opinion. 73
Q You were in full accord with the steps being taken by
Capt. Gavino because you relied on his knowledge, on his Further, on redirect examination, Capt. Kabankov fortified his
familiarity of the seabed and shoals and other apathetic assessment of the situation:
surroundings or conditions under the sea, is that correct?
Q Now, after the anchor was dropped, was there any point
A Yes sir, that is right. in time that you felt that the vessel was in imminent
danger.
xxx xxx xxx
A No, at that time, the vessel was not in imminent, danger,
Solicitor Abad (to the witness) sir. 74

Q And so after the anchors were ordered dropped and This cavalier appraisal of the event by Capt. Kabankov is disturbingly
they did not take hold of the seabed, you were alerted antipodal to Capt. Gavino's anxious assessment of the situation:
that there was danger already on hand?
Q When a pilot is on board a vessel, it is the piler's
A No sir, there was no imminent danger to the vessel. command which should be followed at that moment until
the vessel is, or goes to port or reaches port?
Q Do you mean to tell us that even if the anchor was
supposed to take hold of the bottom and it did not, there A Yes, your Honor, but it does not take away from the
was no danger to the ship? Captain his prerogative to countermand the pilot.

77
 Q In what way? pilot, and even maneuver the vessel himself, in
case of imminent danger to the vessel and the
A In any case, which he thinks the pilot is not maneuvering port.
correctly, the Captain always has the prerogative to
countermand the pilot's order. In fact, in his testimony, Capt. Kavankov
admitted that all throughour the man(eu)vering
Q But insofar as competence, efficiency and functional procedures he did not notice anything was going
knowledee of the seabed which are vital or decisive in the wrong, and even observed that the order given
safety (sic) bringing of a vessel to the port, he is not to drop the anchor was done at the proper time.
competent? He even ventured the opinion that the accident
occurred because the anchor failed to take hold
but that this did not alarm him because.there
A Yes, your Honor. That is why they hire a pilot in an
was still time to drop a second anchor.
advisory capacity, but still, the safety of the vessel rest(s)
upon the Captain, the Master of the vessel.
Under normal circumstances, the
abovementioned facts would have caused the
Q In this case, there was not a disagreement between you
master of a vessel to take charge of the situation
and the Captain of the vessel in the bringing of the vessel
and see to the man(eu)vering of the vessel
to port?
himself. Instead, Capt. Kavankov chose to rely
blindly upon his pilot, who by this time was
A No, your Honor. proven ill-equipped to cope with the situation.

Court: xxx xxx xxx

May proceed. It is apparent that Gavino was negligent but Far

Eastern's employee Capt. Kavankov was no lesss
Atty. Catris: responsible for as master of the vessel he stood
by the pilot during the man(eu)vering
In fact, the Master of the vessel testified here that he was procedures and was privy to every move the
all along in conformity with the orders you, gave to him, latter made, as well as the vessel's response to
and, as matter of fact, as he said, he obeyed all your each of the commands. His choice to rely blindly
orders. Can you tell, if in the course of giving such normal upon the pilot's skills, to the point that despite
orders for the saf(e) docking of the MV Pavlodar, do you being appraised of a notice of alert he continued
remember of any instance that the Master of the vessel to relinquish control of the vessel to Gavino,
did not obey your command for the safety docking of the shows indubitably that he was not performing
MV Pavlodar? his duties with the diligence required of him and
therefore may be charged with negligence along
with defend;int Gavino. 76
Atty. del Rosario:
As correctly affirmed by the Court of Appeals —
Already answered, he already said yes sir.
We are in full accord with the findings and
Court: disquisitions of the Court a quo.

Yes, he has just answered yes sir to the Court that there In the present recourse, Captain Viktor Kavankov
was no disagreement insofar as the bringing of the vessel had been a mariner for thirty-two years before
safely to the port. the incident. When Gavino was (in) the
command of the vessel, Kavankov was beside
Atty. Catris: Gavino, relaying the commands or orders of
Gavino to the crewmembers-officers of the
But in this instance of docking of the MV Pavlodar, do you vessel concerned. He was thus fully aware of the
remember of a time during the course of the docking that docking maneuvers and procedure Gavino
the MV Pavlodar was in imminent danger of bumping the undertook to dock the vessel. Irrefragably,
pier? Kavankov was fully aware of the bulk and size of
the vessel and its cargo as well as the weight of
the vessel. Kavankov categorically admitted that,
A When we were about more than one thousand meters
when the anchor and two (2) shackles were
from the pier, I think, the anchor was not holding, so I
dropped to the sea floor, the claws of the anchor
immediately ordered to push the bow at a fourth quarter,
did not hitch on to any hard object in the
at the back of the vessel in order to swing the bow away
seabed. The momentum of the vessel was not
from the pier and at the same time, I ordered for a full
arrested. The use of the two (2) tugboats was
astern of the engine. 75
insufficient. The momentum of the vessel,
although a little bit arrested, continued (sic) the
These conflicting reactions can only imply, at the very vessel going straightforward with its bow
least, unmindful disregard or, worse, neglectful towards the port (Exhibit "A-1 ). There was thus
relinquishment of duty by the shipmaster, tantamount to a need for the vessel to move "full-astern" and
negligence. to drop the other anchor with another shackle or
two (2), for the vessel to avoid hitting the pier.
The findings of the trial court on this aspect is noteworthy: Kavankov refused to act even as Gavino failed to
act. Even as Gavino gave mere "half-astern"
For, while the pilot Gavino may indeed have order, Kavankov supinely stood by. The vessel
been charged with the task of docking the vessel was already about twenty (20) meters away
in the berthing space, it is undisputed that the from the pier when Gavino gave the "full-astern"
master of the vessel had the corresponding duty order. Even then, Kavankov did nothing to
to countermand any of the orders made by the prevent the vessel from hitting the pier simply
because he relied on the competence and plan
78
 of Gavino. While the "full-astern'' maneuver The authority of the master of a vessel is not in
momentarily arrested the momentum of the complete abeyance while a pilot, who is required
vessel, it was, by then, too late. All along, by law to be accepted, is in discharge of his
Kavankov stood supinely beside Gavino, doing functions. . . . It is the duty of the master to
nothing but relay the commands of Gavino. interfere in cases of the pilot's intoxication or
Inscrutably, then, Kavankov was negligent. manifest incapacity, in cases of danger which he
does not foresee, and in all cases of great
xxx xxx xxx necessity. The master has the same power to
displace the pilot that he has to remove any
subordinate officer of the vessel. He may
The stark incompetence of Kavankov is
exercise it, or not, according to his discretion.
competent evidence to prove the
There was evidence to support findings that
unseaworthiness of the vessel. It has been held
piaintiff's injury was due to the negligent
that the incompetence of the navigator, the
operation of the Atenas, and that the master of
master of the vessel or its crew makes the vessel
that vessel was negligent in failing to take action
unseaworthy (Tug Ocean Prince versus United
to avoid endangering a vessel situated as the
States of America, 584 F. 2nd, page 1151).
City of Canton was and persons or property
Hence, the Appellant FESC is likewise liable for
thereon.
the damage sustained by the Appellee. 77

A phase of the evidence furnished support for

We find strong and well-reasoned support in time-tested American
the inferences . . . that he negligently failed to
maritime jurisprudence, on which much of our laws and
suggest to the pilot the danger which was
jurisprudence on the matter are based, for the conclusions of the
disclosed, and means of avoiding such danger;
Court of Appeals adjudging both Capt. Gavino and Capt. Kabankov
and that the master's negligence in failing to give
negligent.
timelt admonition to the pilot proximately
contributed to the injury complained of. We are
As early as 1869, the U.S. Supreme Court declared, through Mr. of opinion that the evidence mentioned tended
Justice Swayne, in The Steamship China vs. Walsh, 78 that it is the to prove conduct of the pilot, known to the
duty of the master to interfere in cases of the pilot's intoxication or master, giving rise to a case of danger or great
manifest incapacity, in cases of danger which he does not foresee, necessity, calling for the intervention of the
and in all cases of great necessity. The master has the same power master. A master of a vessel is not without fault
to displace the pilot that he has to remove any subordinate officer of in acquiescing in canduct of a pilot which
the vessel, at his discretion. involves apparent and avoidable danger,
whether such danger is to the vessel upon which
In 1895, the U.S. Supreme Court, this time through Mr. Justice the pilot is, or to another vessel, or persons or
Brown, emphatically ruled that: property thereon or on shore. (Emphasis ours.)

Nor are rye satisfied with the conduct of the Still in another case involving a nearly identical setting, the captain
master in leaving the pilot in sole charge of the of a vessel alongside the compulsory pilot was deemed to be
vessel. While the pilot doubtless supersedes the negligent, since, in the words of the court, "he was in a position to
master for the time being in the command and exercise his superior authority if he had deemed the speed excessive
navigation of the ship, and his orders must be on the occasion in question. I think it was clearly negligent of him
obeyed in all matters connected with her not to have recognized the danger to any craft moored at Gravell
navigation, the master is not wholly absolved Dock and that he should have directed the pilot to reduce his speed
from his duties while the pilot is on board, and as required by the local governmental regulations. His failure
may advise with him, and even displace him in amounted to negligence and renders the respondent
case he is intoxicated or manifestly incompetent. liable." 81 (Emphasis supplied.) Though a compulsory pilot might be
He is still in command of the vessel, except so far regarded as an independent contractor, he is at all times subject to
as her navigation is concerned, and bound to see the ultimate control of the ship's master. 82
that there is a sufficient watch on deck, and that
the men are attentive to their duties. In sum, where a compulsory pilot is in charge of a ship, the master
being required to permit him to navigate it, if the master observes
. . . (N)orwithstanding the pilot has charge, it is that the pilot is incompetent or physically incapable, then it is the
the duty of the master to prevent accident, and dury of the master to refuse to permit the pilot to act. But if no such
not to abandon the vessel entirely to the pilot; reasons are present, then the master is justified in relying upon the
but that there are certain duties he has to pilot, but not blindly. Under the circumstances of this case, if a
discharge (notwithstanding there is a pilot on situation arose where the master, exercising that reasonable
board) for the benefit of the owners. . . . that in vigilance which the master of a ship should exercise, observed, or
well conducted ships the master does not regard should have observed, that the pilot was so navigating the vessel
the presence of a duly licensed pilot in that she was going, or was likely to go, into danger, and there was in
compulsory pilot waters as freeing him from the exercise of reasonable care and vigilance an opportunity for the
every, obligation to attend to the safety of the master to intervene so as to save the ship from danger, the master
vessel; but that, while the master sees that his should have acted accordingly. 83 The master of a vessel must
officers and crew duly attend to the pilot's exercise a degree of vigilance commensurate with the
orders, he himself is bound to keep a vigilant eye circumstances. 84
on the navigation of the vessel, and, when
exceptional circumstances exist, not only to urge Inasmuch as the matter of negligence is a question of fact, 85 we
upon the pilot to use every precaution, but to defer to the findings of the trial court, especially as this is affirmed
insist upon such being taken. 79 (Italics for by the Court of Appeals. 86 But even beyond that, our own
emphasis.) evaluation is that Capt. Kabankov's shared liability is due mainly to
the fact that he failed to act when the perilous situation should have
In Jure vs. United Fruit Co., 80 which, like the present petitions, spurred him into quick and decisive action as master of the ship. In
involved compulsory pilotage, with a similar scenario where at and the face of imminent or actual danger, he did not have to wait for
prior to the time of injury, the vessel was in the charge of a pilot the happenstance to occur before countermanding or overruling the
with the master on the bridge of the vessel beside said pilot, the pilot. By his own admission, Capt. Kabankov concurred with Capt.
court therein ruled: Gavino's decisions, and this is precisely the reason why he decided
not to countermand any of the latter's orders. Inasmuch as both
79
lower courts found Capt. Gavino negligent, by expressing full The pilot in the case at bar having deviated from
agreement therewith Capt. Kabankov was just as negligent as Capt. the usual and ordinary course followed by
Gavino. navigators in passing through the strait in
question, without a substantial reason, was
In general, a pilot is personally liable for damages caused by his own guilty of negligence, and that negligence having
negligence or default to the owners of the vessel, and to third been the proximate cause of the damages, he is
parties for damages sustained in a collision. Such negligence of the liable for such damages as usually and naturally
pilot in the performance of duty constitutes a maritime tort. 87 At flow therefrom. . . .
common law, a shipowner is not liable for injuries inflicted
exclusively by the negligence of a pilot accepted by a vessel . . . (T)he defendant should have known of the
compulsorily. 88 The exemption from liability for such negligence existence and location of the rock upon which
shall apply if the pilot is actually in charge and solely in fault. Since, a the vessel struck while under his control and
pilot is responsible only for his own personal negligence, he cannot management. . . . .
be held accountable for damages proximately caused by the default
of others, 89 or, if there be anything which concurred with the fault Consistent with the pronouncements in these two earlier cases, but
of the pilot in producing the accident, the vessel master and owners on a slightly different tack, the Court in Yap Tico & Co. exonerated
are liable. the pilot from liability for the accident where the orders of the pilot
in the handling of the ship were disregarded by the officers and crew
Since the colliding vessel is prima facie responsible, the burden of of the ship. According to the Court, a pilot is ". . . responsible for a
proof is upon the party claiming benefit of the exemption from full knowledge of the channel and the navigation only so far as he
liability. It must be shown affirmatively that the pilot was at fault, can accomplish it through the officers and crew of the ship, and I
and that there was no fault on the part of the officers or crew, which don't see chat he can be held responsible for damage when the
might have been conducive to the damage. The fact that the law evidence shows, as it does in this case, that the officers and crew of
compelled the master to take the pilot does not exonerate the the ship failed to obey his orders." Nonetheless, it is possible for a
vessel from liability. The parties who suffer are entitled to have their compulsory pilot and the master of the vessel to
remedy against the vessel that occasioned the damage, and are not be concurrently negligent and thus share the blame for the resulting
under necessity to look to the pilot from whom redress is not always damage as joint tortfeasors, 98 but only under the circumstances
had for compensation. The owners of the vessel are responsible to obtaining in and demonstrated by the instant petitions.
the injured party for the acts of the pilot, and they must be left to
recover the amount as well as they can against him. It cannot be It may be said, as a general rule, that negligence in order to render a
maintained that the circumstance of having a pilot on board, and person liable need not be the sole cause of an injury. It is sufficient
acting in conformity to his directions operate as a discharge of that his negligence, concurring with one or more efficient causes
responsibility of the owners. 90 Except insofar as their liability is other than piaintiff's, is the proximate cause of the injury.
limited or exempted by statute, the vessel or her owner are liable Accordingly, where several causes combine to produce injuries, a
for all damages caused by the negligence or other wrongs of the person is not relieved from liability because he is responsible for
owners or those in charge of the vessel. Where the pilot of a vessel only one of them, it being sufficient that the negligence of the
is not a compulsory one in the sense that the owner or master of the person charged with injury is an efficient cause without which the
vessel are bound to accept him, but is employed voluntarily, the injury would not have resulted to as great an extent, and that such
owners of the vessel are, all the more, liable for his negligent act. 91 cause is not attributable to the person injured. It is no defense to
one of the concurrent tortfeasors that the injury would not have
In the United States, the owners of a vessel are not personally liable resulted from his negligence alone, without the negligence or
for the negligent acts of a compulsory pilot, but by admiralty law, wrongful acts of the other concurrent rortfeasor. 99 Where several
the fault or negligence of a compulsory pilot is imputable to the causes producing an injury are concurrent and each is an efficient
vessel and it may be held liable therefor in rem. Where, however, by cause without which the injury would not have happened, the injury
the provisions of the statute the pilot is compulsory only in the may be attributed to all or any of the causes and recovery may be
sense that his fee must be paid, and is not in compulsory charge of had against any or all of the responsible persons although under the
the vessel, there is no exemption from liability. Even though the pilot circumstances of the case, it may appear that one of them was more
is compulsory, if his negligence was not the sole cause of the injury, culpable, and that the duty owed by them to the injured person was
but the negligence of the master or crew contributed thereto, the not the same. No actor's negligence ceases to be a proximate cause
owners are liable. 92 But the liability of the ship in rem does not merely because it does not exceed the negligence of other actors.
release the pilot from the consequences of his own Each wrongdoer is responsible for the entire result and is liable as
negligence. 93 The rationale for this rule is that the master is not though his acts were the sole cause of the injury. 100
entirely absolved of responsibility with respect to navigation when a
compulsory pilot is in charge. 94 There is no contribution between joint tortfeasors whose liability is
solidary since both of them are liable for the total damage. Where
By way of validation and in light of the aforecited guidepost rulings the concurrent or successive negligent acts or omissions of two or
in American maritime cases, we declare that our rulings during the more persons, although acting independently, are in combination
early years of this century in City of Manila vs. Gambe, 95 China the direct and proximate cause of a single injury to a third person, it
Navigation Co., Ltd. vs. Vidal, 96 and Yap Tica & Co. vs. Anderson, et is impossible to determine in what proportion each contributed to
al. 97 have withstood the proverbial test of time and remain good the injury and either of them is responsible for the whole injury.
and relevant case law to this day. Where their concurring negligence resulted in injury or damage to a
third party, they become joint tortfeasors and are solidarily liable for
City of Manila stands for the doctrine that the pilot who was in the resulting damage under Article 2194 101 of the Civil Code. 102
command and complete control of a vessel, and not the owners,
must be held responsible for an accident which was solely the result As for the amount of damages awarded by the trial court, we find
of the mistake of the pilot in not giving proper orders, and which did the same to be reasonable. The testimony of Mr. Pascual Barral,
not result from the failure of the owners to equip the vessel with the witness for PPA, on cross and redirect examination, appears to be
most modern and improved machinery. In China Navigation Co., the grounded on practical considerations:
pilot deviated from the ordinary and safe course, without heeding
the warnings of the ship captain. It was this careless deviation that Q So that the cost of the two additional piles as well as the
caused the vessel to collide with a pinnacle rock which, though (two) square meters is already included in this
uncharted, was known to pilots and local navigators. Obviously, the P1,300,999.77.
captain was blameless. It was the negligence of the pilot alone which
was the proximate cause of the collision. The Court could not but
A Yes sir, everything. It is (the) final cost already.
then rule that —

80
Q For the eight piles. We quote the findings of the lower court with approval.

A Including the reduced areas and other reductions. With regards to the amount of damages that is
to be awarded to plaintiff, the Court finds that
Q (A)nd the two square meters. the amount of P1,053,300.00 is justified. Firstly,
the doctrine of res ipsa loquitur best expounded
upon in the landmark case of Republic vs. Luzon
A Yes sir.
Stevedoring Corp. (21 SCRA 279) establishes the
presumption that in the ordinary course of
Q In other words, this P1,300,999.77 does not represent events the ramming of the dock would not have
only for the six piles that was damaged as well as the occurred if proper care was used.
corresponding two piles.
Secondly, the various estimates and plans justify
A The area was corresponding, was increased by almost the cost of the port construction price. The new
two in the actual payment. That was why the contract was structure constructed not only replaced the
decreased, the real amount was P1,124,627.40 and the damaged one but was built of stronger materials
final one is P1,300,999.77. to forestall the possibility of any similar
accidents in the future.
Q Yes, but that P1,300,999.77 included the additional two
new posts. The Court inevitably finds that the plaintiff is
entitled to an award of P1,053,300.00 which
A It was increased. represents actual damages caused by the
damage to Berth 4 of the Manila International
Q Why was it increased? Port. Co-defendants Far Eastern Shipping, Capt.
Senen Gavino and Manila Pilots Association are
solidariiy liable to pay this amount to plaintiff. 104
A The original was 48 and the actual was 46.
The Solicitor General rightly commented that the
Q Now, the damage was somewhere in 1980. It took place adjudicated amount of damages represents the
in 1980 and you started the repair and reconstruction in proportional cost of repair and rehabilitation of the
1982, that took almost two years? damaged section of the pier. 105

A Yes sir. Except insofar as their liability is limited or exempted by statute, the
vessel or her owners are liable for all damages caused by the
Q May it not happen that by natural factors, the existing negligence or other wrongs of the owners or those in charge of the
damage in 1980 was aggravated for the 2 year period that vessel. As a general rule, the owners or those in possession and
the damage portion was not repaired? control of a vessel and the vessel are liable for all natural and
proximate damages caused to persons or property by reason of her
A I don't think so because that area was at once marked negligent management or navigation. 106
and no vehicles can park, it was closed.
FESC's imputation of PPA's failure to provide a safe and reliable
Q Even if or even natural elements cannot affect the berthing place is obtuse, not only because it appears to be a mere
damage? afterthought, being tardily raised only in this petition, but also
because there is no allegation or evidence on record about Berth
No. 4 being unsafe and unreliable, although perhaps it is a modest
A Cannot, sir.
pier by international standards. There was, therefore, no error on
the part of the Court of Appeals in dismissing FESC's counterclaim.
xxx xxx xxx
II. G.R. No. 130150
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
This consolidated case treats on whether the Court of Appeals erred
reconstruction of the pier, PPA drove and constructed 8
in holding MPA jointly and solidarily liable with its member pilot.
piles. Will you explain to us why there was change in the
Capt. Gavino, in the absence of employer-employee relationship and
number of piles from the original number?
in applying Customs Administrative Order No. 15-65, as basis for the
adjudged solidary liability of MPA and Capt. Gavino.
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You have
The pertinent provisions in Chapter I of Customs Administrative
to redesign the driving of the piles. We cannot drive the
Order No. 15-65 are:
piles at the same point where the piles are broken or
damaged or pulled out. We have to redesign, and you will
note that in the reconstruction, we redesigned such that it PAR. XXVII. — In all pilotage districts where
necessitated 8 plies. pilotage is compulsory, there shall be created
and maintained by the pilots or pilots'
association, in the manner hereinafter
Q Why not, why could you not drive the same number of
prescribed, a reserve fund equal to P1,000.00 for
piles and on the same spot?
each pilot thereof for the purpose of paying
claims for damages to vessels or property caused
A The original location was already disturbed. We cannot through acts or omissions of its members while
get required bearing capacity. The area is already rendered in compulsory pilotage service. In
disturbed. Manila, the reserve fund shall be P2,000.00 for
each pilot.
Q Nonetheless, if you drove the original number of piles,
six, on different places, would not that have sustained the PAR. XXVIII. — A pilots' association shall not be
same load? liable under these regulations for damage to any
vessel, or other property, resulting from acts of a
A It will not suffice, sir. 103 member of an association in the actual
81
 performance of his duty for a greater amount duties and the excess shall be paid from the
than seventy-five per centum (75%) of its personal funds of the member concerned.
prescribed reserve fund; it being understood
that if the association is held liable for an xxx xxx xxx
amount greater than the amount above-stated,
the excess shall be paid by the personal funds of
5) If payment is made from the reserve fund
the member concerned.
of an Association on account of damage
caused by a member thereof who is found
PAR. XXXI. — If a payment is made from the at fault, he shall reimburse the Association
reserve fund of an association on account of in the amount so paid as soon as
damages caused by a member thereof, and he practicable; and for this purpose, not less
shall have been found at fault, such member than twenty-five percentum (25 %) of his
shall reimburse the association in the amount so dividend shall be retained each month until
paid as soon as practicable; and for this purpose, the full amount has been returned to the
not less than twenty-five per centum of his reserve fund. Thereafter, the pilot involved
dividends shall be retained each month until the shall be entitled to his full dividend.
full amount has been returned to the reserve
fund.
6) When the reimbursement has been
completed as prescribed in the preceding
PAR. XXXIV. — Nothing in these regulations shall paragraph, the ten percentum (10%) and
relieve any pilots' association or members the interest withheld from the shares of the
thereof, individually or collectively, from civil other pilots in accordance with paragraph
responsibility for damages to life or property (4) hereof shall be returned to them.
resulting from the acts of members in the
performance of their duties.
c) Liability of Pilots' Association — Nothing in
these regulations shall relieve any Pilots'
Correlatively, the relevant provisions of PPA Administrative Order Association or members thereof, individually or
No. 03-85, which timery amended this applicable maritime collectively, from any civil, administrative and/or
regulation, state: criminal responsibility for damages to life or
property resulting from the individual acts of its
Art. IV members as well as those of the Association's
employees and crew in the performance of their
Sec. 17. Pilots' Association — The Pilots in a Pilotage duties.
District shall organize themselves into a Pilots' Association
or firm, the members of which shall promulgate their own The Court of Appeals, while affirming the trial court's finding of
By-Laws not in conflict with the rules and regulations solidary liability on the part of FESC, MPA and Capt. Gavino,
promulgated by the Authority. These By-Laws shall be correctly based MPA' s liability not on the concept of employer-
submitted not later than one (1) month after the employee relationship between Capt. Gavino and itself, but on the
organization of the Pilots' Association for approval by the provisions of Customs Administrative Order No. 15-65:
General Manager of the Authority. Subsequent
amendments thereto shall likewise be submitted for The Appellant MPA avers that, contrary to the findings and
approval. disquisitions of the Court a quo, the Appellant Gavino was
not and has never been an employee of the MPA but was
Sec. 25. Indemnity Insurance and Reserve Fund — only a member thereof. The Court a quo, it is noteworthy,
did not state the factual basis on which it anchored its
a) Each Pilots' Association shall collectively finding that Gavino was the employee of MPA. We are in
insure its membership at the rate of P50,000.00 accord with MPA's pose. Case law teaches Us that, for an
each member to cover in whole or in part any employer-employee relationship to exist, the confluence
liability arising from any accident resulting in of the following elements must be established: (1)
damage to vessel(s), port facilities and other selection and engagement of employees; (2) the payment
properties and/or injury to persons or death of wages; (3) the power of dismissal; (4) the employer's
which any member may have caused in the power to control the employees with respect to the means
course of his performance of pilotage duties. . . . and method by which the work is to be performed (Ruga
. versus NLRC, 181 SCRA 266).

b) The Pilotage Association shall likewise set up xxx xxx xxx

and maintain a reserve fund which shall answer
for any part of the liability referred to in the The liability of MPA for damages is not anchored on Article
immediately preceding paragraph which is left 2180 of the New Civil Code as erroneously found and
unsatisfied by the insurance proceeds, in the declared by the Court a quo but under the provisions of
following manner: Customs Administrative Order No. 15-65, supra, in tandem
with the by-laws of the MPA. 107
1) Each pilot in the Association shall
contribute from his own account an amount There being no employer-employee relationship, clearly Article
of P4,000.00 (P6,000.00 in the Manila 2180 108 of the Civil Code is inapplicable since there is no vicarious
Pilotage District) to the reserve fund. This liability of an employer to speak of. It is so stated in American law, as
fund shall not be considered part of the follows:
capital of the Association nor charged as an
expense thereof. The well established rule is that pilot associations are
immune to vicarious liability for the tort of their members.
2) Seventy-five percent (75 %) of the They are not the employer of their members and exercise
reserve fund shall be set aside for use in the no control over them once they take the helm of the
payment of damages referred to above vessel. They are also not partnerships because the
incurred in the actual performance of pilots' members do not function as agents for the association or
for each other. Pilots' associations are also not liable for
82
 negligently assuring the competence of their members reimbursed by the offending member pilot for the
because as professional associations they made no excess. 113
guarantee of the professional conduct of their members to
the general public. 109 WHEREFORE, in view of all of the foregoing, the consolidated
petitions for review are DENIED and the assailed decision of the
Where under local statutes and regulations, pilot associations lack Court of Appeals is AFFIRMED in toto.
the necessary legal incidents of responsibility, they have been held
not liable for damages caused by the default of a member Counsel for FESC, the law firm of Del Rosario and Del Rosario,
pilot. 110 Whether or not the members of a pilots' association are in specifically its associate, Atty. Herbert A. Tria, is REPRIMANDED and
legal effect a copartnership depends wholly on the powers and WARNED that a repetition of the same or similar acts of heedless
duties of the members in relation to one another under the disregard of its undertakings under the Rules shall be dealt with
provisions of the governing statutes and regulations. The relation of more severely.
a pilot to his association is not that of a servant to the master, but of
an associate assisting and participating in a common purpose.
The original members of the legal team of the Office of the Solicitor
Ultimately, the rights and liabilities between a pilots' association and
General assigned to this case, namely, Assistant Solicitor General
an individual member depend largely upon the constitution, articles
Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED
or by-laws of the association, subject to appropriate government
and WARNED that a repetition of the same or similar acts of unduly
regulations. 111
delaying proceedings due to delayed filing of required pleadings
shall also be dealt with more stringently.
No reliance can be placed by MPA on the cited American rulings as
to immunity from liability of a pilots' association in ljght of existing
The Solicitor Genral is DIRECTED to look into the circumstances of
positive regulation under Philippine law. The Court of Appeals
this case and to adopt provident measures to avoid a repetition of
properly applied the clear and unequivocal provisions of Customs
this incident and which would ensure prompt compliance with
Administrative Order No. 15-65. In doing so, it was just being
orders of this Court regarding the timely filing of requisite pleadings,
consistent with its finding of the non-existence of employer-
in the interest of just, speedy and orderly administration of justice.
employee relationship between MPA and Capt. Gavino which
precludes the application of Article 2180 of the Civil Code.
Let copies of this decision be spread upon the personal records of
the lawyers named herein in the Office of the Bar Confidant.
True. Customs Administrative Order No. 15-65 does not categorically
characterize or label MPA's liability as solidary in nature.
Nevertheless, a careful reading and proper analysis of the correlated SO ORDERED.
provisions lead to the conclusion that MPA is solidarily liable for the
negligence of its member pilots, without prejudice to subsequent
reimbursement from the pilot at fault.

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

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

mere rule and regulation issued by an administrative
agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set out
in the law itself. Nonetheless, said administrative order,
which adds to the procedural or enforcing provisions of
substantive law, is legally binding and receives the same
statutory force upon going into effect. In that sense, it has
equal, not lower, statutory force and effect as a regular
statute passed by the legislature. 112

MPA's prayer for modification of the appellate court's decision

under review by exculpating petitioner MPA "from liability beyond
seventy-five percent (75 %) of Reserve Fund" is unnecessary because
the liability of MPA under Par. XXVIII of Customs Administrative
Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its
prescribed reserve fund, any amount of liability beyond that being
for the personal account of the erring pilot and subject to
reimbursement in case of a finding of fault by the member
concerned. This is clarified by the Solicitor General:

Moreover, contrary to petitioner's pretensions, the

provisions of Customs Administrative Order No. 15-65 do
not limit the liability of petitioner as a pilots' association to
an absurdly small amount of seventy-five per centum (75
%) of the member pilots' contribution of P2,000.00 to the
reserve fund. The law speaks of the entire reserve fund
required to be maintained by the pilots' association to
answer (for) whatever liability arising from the tortious act
of its members. And even if the association is held liable
for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be
liable only up to seventy-five per centum (75 %) of the
reserve fund because in such instance it has the right to be
83
 Julio says that at that juncture the throat latch of the bridle was
broken. Be this as it may, we are of the opinion that the mere fact
that the defendant interfered with the carromata by stopping the
horse in the manner stated would not make him liable for the death
of Proceso Gayetano; because it is admitted by Julio Pagnaya that he
afterwards got out of the carromata and went to the horse's head to
fix the bridle. The evidence is furthermore convincing to the effect
that, after Julio Pagnaya alighted, the horse was conducted to the
curb and that an appreciable interval of time elapsed — same
G.R. No. L-15674 October 17, 1921 witnesses say several minutes — before the horse started on his
career up the street. 1awph!l.net
CONSOLACION GABETO, in her own right and as guardian ad litem
of her three children, plaintiff-appellee, It is therefore evident that the stopping of the rig by Agaton Araneta
vs. AGATON ARANETA, defendant-appellant. in the middle of the street was too remote from the accident that
presently ensued to be considered the legal or proximate cause
Jose E. Locsin for appellant. thereof. Moreover, by getting out and taking his post at the head of
Block, Johnston and Greenbaum for appellee. the horse, the driver was the person primarily responsible for the
control of the animal, and the defendant cannot be charged with
liability for the accident resulting from the action of the horse
STREET, J.: thereafter.

This action was instituted in the Court of First Instance of Iloilo by Julio Pagnaya testifies to one fact which, if it were fully accredited,
Consolacion Gabeto, in her own right as widow of Proceso would possibly put a different complexion on the case; for he says
Gayetano, and as guardian ad litem of the three children, Conchita that when the horse was pulled over to the curb, the defendant, by
Gayetano, Rosita Gayetano, and Fermin Gayetano, for the purpose way of emphasizing his verbal denunciation of Pagnaya, gesticulated
of recovering damages incurred by the plaintiff as a result of the with one of his arms and incidentally brought his hand down on the
death of the said Proceso Gayetano, supposedly cause by the horse's nose. This, according to Pagnaya, is what made the horse run
wrongful act of the defendant Agaton Araneta. Upon hearing the away. There is no other witness who testifies to this; and it is
evidence, his Honor, Judge L. M. Southworth, awarded damages to noteworthy that Basilio Ilano does not mention it. A decided
the plaintiff in the amount of P3,000, from which judgment the preponderance of the evidence in our opinion is against it.
defendant appealed.
The evidence indicates that the bridle was old, and the leather of
It appears in evidence that on August 4, 1918. Basilio Ilano and which it was made was probably so weak as to be easily broken.
Proceso Gayetano took a carromata near Plaza Gay, in the City of Julio Pagnaya had a natural interest in refuting this fact, as well as in
Iloilo, with a view to going to a cockpit on Calle Ledesma in the same exculpating himself in other respects; and we are of the opinion that
City. When the driver of the carromata had turned his horse and the several witnesses who testified for the defendant gave a more
started in the direction indicated, the defendant, Agaton Araneta, credible account of the affair than the witnesses for the plaintiff.
stepped out into the street, and laying his hands on the reins, According to the witnesses for the defendant, it was Julio who
stopped the horse, at the same time protesting to the driver that he jerked the rein, thereby causing the bit it come out of the horse's
himself had called this carromata first. The driver, one Julio Pagnaya, mouth; and they say that Julio, after alighting, led the horse over to
replied to the effect that he had not heard or seen the call of the curb, and proceeded to fix the bridle; and that in so doing the
Araneta, and that he had taken up the two passengers then in the bridle was slipped entirely off, when the horse, feeling himself free
carromata as the first who had offered employment. At or about the from control, started to go away as previously stated.
same time Pagnaya pulled on the reins of the bridle to free the
horse from the control of Agaton Araneta, in order that the vehicle
might pass on. Owing, however, to the looseness of the bridle on the Upon the whole we are constrained to hold that the defendant is
horse's head or to the rottenness of the material of which it was not legally responsible for the death of Proceso Gayetano; and
made, the bit came out of the horse's mouth; and it became though reluctant to interfere with the findings of fact of a trial court
necessary for the driver to get out, which he did, in order to find the when there is a conflict of testimony, the evidence in this case so
bridle. The horse was then pulled over to near the curb, by one or clearly preponderates in favor of the defendant, that we have no
the other — it makes no difference which — and Pagnaya tried to fix recourse but to reverse the judgment.
the bridle.
The judgment will therefore be reversed, and the defendant will be
While he was thus engaged, the horse, being free from the control absolved from the complaint; and it is so ordered, without express
of the bit, became disturbed and moved forward, in doing which he finding as to costs of either instance. So ordered.
pulled one of the wheels of the carromata up on the sidewalk and
pushed Julio Pagnaya over. After going a few years further the side Johnson, Araullo, Avanceña and Villamor, JJ., concur.
of the carromata struck a police telephone box which was fixed to a
post on the sidewalk, upon which the box came down with a crash
and frightened the horse to such an extent that he set out at full
speed up the street.

Meanwhile one of the passengers, to wit. Basilio Ilano, had alighted

while the carromata was as yet alongside the sidewalk; but the
other, Proceso Gayetano, had unfortunately retained his seat, and
after the runaway horse had proceeded up the street to a point in
front of the Mission Hospital, the said Gayetano jumped or fell from
the rig, and in so doing received injuries from which he soon died.

As to the facts above stated the evidence cannot be said to be

materially in conflict; but there is decided conflict upon the point of
the exact relation of the defendant Agaton Araneta, to the runaway.
The evidence for the plaintiff on this point consists chiefly of the
testimony of Julio Pagnaya and of Basilio Ilano. They both say that
while yet in the middle of the street, the defendant jerked the
bridle, which caused the bit to come out of the horse's mouth, and

84
 “The electric wire in question was an exposed, uninsulated primary
wire stretched between poles on the street and carrying a charge of
3,600 volts. It was installed there some two years before Peñaloza’s
house was constructed. The record shows that during the
construction of said house a similar incident took place, although
fortunate]y with much less tragic consequences. A piece of wood
which a carpenter was holding happened to come in contact with
the same wire, producing some sparks. The owner of the house
forthwith complained to Defendant about the danger which the wire
presented, and as a result Defendant moved one end of the wire
farther from the house by means of a brace, but left the other end
where it was.
“At any rate, as revealed by the ocular inspection of the premises
ordered by the trial court, the distance from the electric wire to the
edge of the ‘media agua’ on which the deceased was making repairs
was only 30 inches or 2 1/2 feet. Regulations of the City of Manila
required that ‘all wires be kept three feet from the
building.’ Appellant contends that in applying said regulations to the
case at bar the reckoning should not be from the edge of the ‘media
agua’ but from the side of the house and that, thus measured, the
distance was almost 7 feet, or more then the minimum prescribed.
This contention is manifestly groundless, for not only is a ‘media
agua’ an integral part of the building to which it is attached but to
exclude it in measuring the distance would defeat the purpose of
the regulation. Appellant points out, nevertheless, that even
assuming that the distance, within the meaning of the city
regulations, should be measured from the edge of the ‘media agua’,
the fact that in the case of the house involved herein such distance
was actually less than 3 feet was due to the fault of the owner of
said house, because the city authorities gave him a permit to
construct a ‘media agua’ only one meter or 39 1/2 inches wide, but
instead he built one having a width of 65 3/4 inches, 17 3/8 inches
more than the width permitted by the authorities, thereby reducing
the distance to the electric wire to less than the prescribed
minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in
the permit given to him by the city authorities for the construction
of the ‘media agua’, and that if he had not done so Appellants wire
would have been 11 3/8 (inches) more than the required distance of
three feet from the edge of the ‘media agua’. It is also a fact,
however, that after the ‘media agua’ was constructed the owner
[G.R. No. L-8328. May 18, 1956.] was given a final permit of occupancy of the house cralaw .
MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO “ cralaw The wire was an exposed, high tension wire carrying a load
REMOQUILLO, in his own behalf and as guardian of the minors of 3,600 volts. There was, according to Appellant, no insulation that
MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE could have rendered it safe, first, because there is no insulation
and AURORA, all surnamed MAGNO, SALUD MAGNO, and the material in commercial use for such kind of wire; chan
COURT OF APPEALS (Second Division), Respondents. roblesvirtualawlibraryand secondly, because the only insulation
material that may be effective is still in the experimental stage of
development and, anyway, its costs would be prohibitive… ”
DECISION
The theory followed by the appellate court in finding for
MONTEMAYOR, J.: the Plaintiff is that although the owner of the house in constructing
On August 22, 1950, Efren Magno went to the 3-story house of the “media agua” in question exceeded the limits fixed in the
Antonio Peñaloza, his stepbrother, located on Rodriguez Lanuza permit, still, after making that “media agua”, its construction though
Street, Manila, to repair a “media agua” said to be in a leaking illegal, was finally approved because he was given a final permit to
condition. The “media agua” was just below the window of the third occupy the house; chan roblesvirtualawlibrarythat it was the
story. Standing on said “media agua”, Magno received from his son company that was at fault and was guilty of negligence because
thru that window a 3’ X 6’ galvanized iron sheet to cover the leaking although the electric wire in question had been installed long before
portion, turned around and in doing so the lower end of the iron the construction of the house and in accordance with the ordinance
sheet came into contact with the electric wire of the Manila Electric fixing a minimum of 3 feet, mere compliance with the regulations
Company (later referred to as the Company) strung parallel to the does not satisfy the requirement of due diligence nor avoid the need
edge of the “media agua” and 2 1/2 feet from it, causing his death for adopting such other precautionary measures as may be
by electrocution. His widow and children fled suit to recover warranted; chan roblesvirtualawlibrarythat negligence cannot be
damages from the company. After hearing, the trial court rendered determined by a simple matter of inches; chan
judgment in their favor — P10,000 as compensatory damages; chan roblesvirtualawlibrarythat all that the city did was to prescribe
roblesvirtualawlibraryP784 as actual damages; chan certain minimum conditions and that just because the ordinance
roblesvirtualawlibraryP2,000 as moral and exemplary damages; chan required that primary electric wires should be not less than 3 feet
roblesvirtualawlibraryand P3,000 as attorney’s fees, with costs. On from any house, the obligation of due diligence is not fulfilled by
appeal to the Court of Appeals, the latter affirmed the judgment placing such wires at a distance of 3 feet and one inch, regardless of
with slight modification by reducing the attorney’s fees from P3,000 other factors. The appellate court, however, refrained from stating
to P1,000 with costs. The electric company has appealed said or suggesting what other precautionary measures could and should
decision to us. have been adopted.

The findings of fact made by the Court of Appeals which are After a careful study and discussion of the case and the
conclusive are stated in the following portions of its decision which circumstances surrounding the same, we are inclined to agree to the
we reproduce below:chanroblesvirtuallawlibrary contention of Petitioner Company that the death of Magno was
primarily caused by his own negligence and in some measure by the
85
too close proximity of the “media agua” or rather its edge to the that without much difficulty or exertion, a person by stretching his
electric wire of the company by reason of the violation of the hand out could touch them. A boy named Astudillo, placing one foot
original permit given by the city and the subsequent approval of said on a projection, reached out and actually grasped the electric wire
illegal construction of the “media agua”. We fail to see how the and was electrocuted. The person electrocuted in said case was a
Company could be held guilty of negligence or as lacking in due boy who was in no position to realize the danger. In the present
diligence. Although the city ordinance called for a distance of 3 feet case, however, the wires were well high over the street where there
of its wires from any building, there was actually a distance of 7 feet was no possible danger to pedestrians. The only possible danger was
and 2 3/4 inches of the wires from the side of the house of Peñaloza. to persons standing on the “media agua”, but a “media agua” can
Even considering said regulation distance of 3 feet as referring not hardly be considered a public place where persons usually gather.
to the side of a building, but to any projecting part thereof, such as a Moreover, a person standing on the “media agua” could not have
“media agua”, had the house owner followed the terms of the reached the wires with his hands alone. It was necessary as was
permit given him by the city for the construction of his “media done by Magno to hold something long enough to reach the wire.
agua”, namely, one meter or 39 3/8 inches wide, the distance from Furthermore, Magno was not a boy or a person immature but the
the wires to the edge of said “media agua” would have been 3 feet father of a family, supposedly a tinsmith trained and experienced in
and 11 3/8 inches. In fixing said one meter width for the “media the repair of galvanized iron roofs and “media agua”. Moreover, in
agua” the city authorities must have wanted to preserve the that very case of Astudillo vs. Manila Electric Co., supra, the court
distance of at least 3 feet between the wires and any portion of a said that although it is a well- established rule that the liability of
building. Unfortunately, however, the house owner disregarding the electric companies for damages or personal injuries is governed by
permit, exceeded the one meter fixed by the same by 17 3/8 inches the rules of negligence, nevertheless such companies are not
and leaving only a distance of 2 1/2 feet between the “Media agua” insurers of the safety of the public.
as illegally constructed and the electric wires. And added to this
But even assuming for a moment that under the facts of the present
violation of the permit by the house owner, was its approval by the
case the Defendant electric company could be considered negligent
city through its agent, possibly an inspector. Surely we cannot lay
in installing its electric wires so close to the house and “media agua”
these serious violations of a city ordinance and permit at the door of
in question, and in failing to properly insulate those wires (although
the Company, guiltless of breach of any ordinance or regulation. The
according to the unrefuted claim of said company it was impossible
Company cannot be expected to be always on the lookout for any
to make the insulation of that kind of wire), nevertheless to hold
illegal construction which reduces the distance between its wires
the Defendant liable in damages for the death of Magno, such
and said construction, and after finding that said distance of 3 feet
supposed negligence of the company must have been the proximate
had been reduced, to change the stringing or installation of its wires
and principal cause of the accident, because if the act of Magno in
so as to preserve said distance. It would be much easier for the City,
turning around and swinging the galvanized iron sheet with his
or rather it is its duty, to be ever on the alert and to see to it that its
hands was the proximate and principal cause of the electrocution,
ordinances are strictly followed by house owners and to condemn or
then his heirs may not recover. Such was the holding of this Court in
disapprove all illegal constructions. Of course, in the present case,
the case of Taylor vs. Manila Electric Railroad and Light Company, 16
the violation of the permit for the construction of the “media agua”
Phil., 8. In that case, the electric company was found negligent in
was not the direct cause of the accident. It merely contributed to it.
leaving scattered on its premises fulminating caps which Taylor, a
Had said “media agua” been only one meter wide as allowed by the
15- year old boy found and carried home. In the course of
permit, Magno standing on it, would instinctively have stayed closer
experimenting with said fulminating caps, he opened one of them,
to or hugged the side of the house in order to keep a safe margin
held it out with his hands while another boy applied a lighted match
between the edge of the “media agua” and the yawning 2-story
to it, causing it to explode and injure one of his eyes eventually
distance or height from the ground, and possibly if not probably
causing blindness in said eye. Said this Tribunal in denying recovery
avoided the fatal contact between the lower end of the iron sheet
for the injury:chanroblesvirtuallawlibrary
and the wires.
“ cralaw, so that while it may be true that these injuries would not
We realize that the presence of the wires in question quite close to
have been incurred but for the negligent act of the Defendant in
the house or its “media agua” was always a source of danger
leaving the caps exposed on its premises, nevertheless Plaintiff’s
considering their high voltage and uninsulated as they were, but the
own act was the proximate and principal cause of the accident
claim of the company and the reasons given by it for not insulating
which inflicted the injury.”
said wires were unrefuted as we gather from the findings of the
Court of Appeals, and so we have to accept them as satisfactory. To us it is clear that the principal and proximate cause of the
Consequently, we may not hold said company as guilty of negligence electrocution was not the electric wire, evidently a remote cause,
or wanting in due diligence in failing to insulate said wires. As to but rather the reckless and negligent act of Magno in turning around
their proximity to the house it is to be supposed that distance of 3 and swinging the galvanized iron sheet without taking any
feet was considered sufficiently safe by the technical men of the city precaution, such as looking back toward the street and at the wire
such as its electrician or engineer. Of course, a greater distance of to avoid its contacting said iron sheet, considering the latter’s length
say 6 feet or 12 feet would have increased the margin of safety but of 6 feet. For a better understanding of the rule on remote and
other factors had to be considered such as that the wires could not proximate cause with respect to injuries, we find the following
be strung or the posts supporting them could not be located too far citation helpful:chanroblesvirtuallawlibrary
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 “A prior and remote cause cannot be made the basis of an action if
he was called by his stepbrother to repair the “media agua” just such remote cause did nothing more than furnish the condition or
below the third story window, it is to be presumed that due to his give rise to the occasion by which the injury was made possible, if
age and experience he was qualified to do so. Perhaps he was a there intervened between such prior or remote cause and the injury
tinsmith or carpenter and had training and experience for the job. a distinct, successive, unrelated, and efficient cause of the injury,
So, he could not have been entirely a stranger to electric wires and even though such injury would not have happened but for such
the danger lurking in them. But unfortunately, in the instant care, his condition or occasion. If no danger existed in the condition except
training and experience failed him, and forgetting where he was because of the independent cause, such condition was not the
standing, holding the 6-feet iron sheet with both hands and at arms proximate cause. And if an independent negligent act or defective
length, evidently without looking, and throwing all prudence and condition sets into operation the circumstances which result in
discretion to the winds, he turned around swinging his arms with the injury because of the prior defective condition, such subsequent act
motion of his body, thereby causing his own electrocution. or condition is the proximate cause.” (45 C.J. pp. 931-332.).

In support of its theory and holding that Defendant-Appellant was We realize that the stringing of wires of such high voltage (3,600
liable for damages the Court of Appeals cites the case of Astudillo vs. volts), uninsulated and so close to houses is a constant source of
Manila Electric Co., 55 Phil., 427. We do not think the case is exactly danger, even death, especially to persons who having occasion to be
applicable. There, the premises involved was that elevated portion near said wires, do not adopt the necessary precautions. But may
or top of the walls of Intramuros, Manila, just above the Sta. Lucia be, the City of Manila authorities and the electric company could get
Gate. In the words of the Court, it was “a public place where persons together and devise means of minimizing this danger to the public.
come to stroll, to rest and to enjoy themselves”. The electric Just as the establishment of pedestrian lanes in city thoroughfares
company was clearly negligent in placing its wires so near the place may greatly minimize danger to pedestrians because drivers of
86
motor vehicles may expect danger and slow down or even stop and IN VIEW OF THE FOREGOING considerations the defendant
take other necessary precaution upon approaching said lanes, so, a Philippine Long Distance Telephone Company is hereby
similar way may possibly be found. Since these high voltage wires ordered (A) to pay the plaintiff Gloria Esteban the sum of
cannot be properly insulated and at reasonable cost, they might P20,000.00 as moral damages and P5,000.00 exemplary
perhaps be strung only up to the outskirts of the city where there damages; to plaintiff Antonio Esteban the sum of
are few houses and few pedestrians and there step-down to a P2,000.00 as moral damages and P500.00 as exemplary
voltage where the wires carrying the same to the city could be damages, with legal rate of interest from the date of the
properly insulated for the better protection of the public. filing of the complaint until fully paid. The defendant is
hereby ordered to pay the plaintiff the sum of P3,000.00
In view of all the foregoing, the appealed decision of the Court of
as attorney's fees.
Appeals is hereby reversed and the complaint filed against the
Company is hereby dismissed. No costs.
(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
G.R. No. L-57079 September 29, 1989 was received by respondent spouses on February 22, 1980.11

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, On February 29, 1980, respondent Court of Appeals received private
vs. COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and respondents' motion for leave of court to file a second motion for
GLORIA ESTEBAN, respondents. reconsideration, dated February 27, 1980. 12 On March 11, 1980,
respondent court, in a resolution likewise penned by Justice Agrava,
REGALADO, J.: 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,
This case had its inception in an action for damages instituted in the
private respondents had already filed their second motion for
former Court of First Instance of Negros Occidental 1 by private
reconsideration on March 7, 1980. 14
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 On April 30,1980 petitioner PLDT filed an opposition to and/or
mound of earth and fell into an open trench, an excavation allegedly motion to dismiss said second motion for reconsideration. 15 The
undertaken by PLDT for the installation of its underground conduit Court of Appeals, in view of the divergent opinions on the resolution
system. The complaint alleged that respondent Antonio Esteban of the second motion for reconsideration, designated two additional
failed to notice the open trench which was left uncovered because justices to form a division of five.16 On September 3, 1980, said
of the creeping darkness and the lack of any warning light or signs. division of five promulgated its resolution, penned by Justice
As a result of the accident, respondent Gloria Esteban allegedly Mariano A. Zosa, setting aside the decision dated September 25,
sustained injuries on her arms, legs and face, leaving a permanent 1979, as well as the resolution dated, January 24,1980, and
scar on her cheek, while the respondent husband suffered cut lips. affirming in toto the decision of the lower court.17
In addition, the windshield of the jeep was shattered.2
On September 19, 1980, petitioner PLDT filed a motion to set aside
PLDT, in its answer, denies liability on the contention that the and/or for reconsideration of the resolution of September 3, 1980,
injuries sustained by respondent spouses were the result of their contending that the second motion for reconsideration of private
own negligence and that the entity which should be held respondent spouses was filed out of time and that the decision of
responsible, if at all, is L.R. Barte and Company (Barte, for short), an September 25, 1979 penned by Justice Agrava was already final. It
independent contractor which undertook the construction of the further submitted therein that the relationship of Barte and
manhole and the conduit system.3 Accordingly, PLDT filed a third- petitioner PLDT should be viewed in the light of the contract
party complaint against Barte alleging that, under the terms of their between them and, under the independent contractor rule, PLDT is
agreement, PLDT should in no manner be answerable for any not liable for the acts of an independent contractor.18 On May 11,
accident or injuries arising from the negligence or carelessness of 1981, respondent Court of Appeals promulgated its resolution
Barte or any of its employees.4 In answer thereto, Barte claimed that denying said motion to set aside and/or for reconsideration and
it was not aware nor was it notified of the accident involving affirming in toto the decision of the lower court dated October 1,
respondent spouses and that it had complied with the terms of its 1974. 19
contract with PLDT by installing the necessary and appropriate
standard signs in the vicinity of the work site, with barricades at Coming to this Court on a petition for review on certiorari, petitioner
both ends of the excavation and with red lights at night along the assigns the following errors:
excavated area to warn the traveling public of the presence of
excavations.5 1. Respondent Court of Appeals erred in not denying private
respondents' second motion for reconsideration on the ground that
On October 1, 1974, the trial court rendered a decision in favor of the decision of the Special Second Division, dated September 25,
private respondents, the decretal part of which reads: 1979, and the resolution of the Special Ninth Division, dated January

87
24, 1980, are already final, and on the additional ground that said The consequential result is that the resolution of respondent court
second motion for reconsideration is pro forma. of March 11, 1980 granting private respondents' aforesaid motion
for leave and, giving them an extension of ten (10) days to file a
2. Respondent court erred in reversing the aforesaid decision and second motion for reconsideration, is null and void. The period for
resolution and in misapplying the independent contractor rule in filing a second motion for reconsideration had already expired when
holding PLDT liable to respondent Esteban spouses. 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
A convenient resume of the relevant proceedings in the respondent
file their second motion for reconsideration was of no legal
court, as shown by the records and admitted by both parties, may
consequence since it was given when there was no more period to
be graphically presented as follows:
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
(a) September 25, 1979, a decision was rendered by the extended. 24 Necessarily, the discretion of respondent court to grant
Court of Appeals with Justice Agrava as ponente; said extension for filing a second motion for reconsideration is
(b) October 10, 1979, a copy of said decision was received conditioned upon the timeliness of the motion seeking the same.
by private respondents;
(c) October 25, 1979, a motion for reconsideration was
No appeal having been taken seasonably, the respondent court's
filed by private respondents;
decision, dated September 25, 1979, became final and executory on
(d) January 24, 1980, a resolution was issued denying said
March 9, 1980. The subsequent resolutions of respondent court,
motion for reconsideration;
dated March 11, 1980 and September 3, 1980, allowing private
(e) February 22, 1980, a copy of said denial resolution was
respondents to file a second motion for reconsideration and
received by private respondents;
reversing the original decision are null and void and cannot disturb
(f) February 29, 1980, a motion for leave to file a second
the finality of the judgment nor restore jurisdiction to respondent
motion for reconsideration was filed by private
court. This is but in line with the accepted rule that once a decision
respondents
has become final and executory it is removed from the power and
(g) March 7, 1980, a second motion for reconsideration
jurisdiction of the court which rendered it to further alter or amend,
was filed by private respondents;
much less revoke it.25 The decision rendered anew is null and
(h) March 11, 1980, a resolution was issued allowing
void.26 The court's inherent power to correct its own errors should
respondents to file a second motion for
be exercised before the finality of the decision or order sought to be
reconsideration within ten (10) days from receipt;
corrected, otherwise litigation will be endless and no question could
and
be considered finally settled. Although the granting or denial of a
(i) September 3, 1980, a resolution was issued, penned by
motion for reconsideration involves the exercise of discretion,27 the
Justice Zosa, reversing the original decision dated
same should not be exercised whimsically, capriciously or arbitrarily,
September 25, 1979 and setting aside the resolution
but prudently in conformity with law, justice, reason and equity.28
dated January 24, 1980.

Prescinding from the aforesaid procedural lapses into the

From the foregoing chronology, we are convinced that both the
substantive merits of the case, we find no error in the findings of the
motion for leave to file a second motion for reconsideration and,
respondent court in its original decision that the accident which
consequently, said second motion for reconsideration itself were
befell private respondents was due to the lack of diligence of
filed out of time.
respondent Antonio Esteban and was not imputable to negligent
omission on the part of petitioner PLDT. Such findings were reached
Section 1, Rule 52 of the Rules of Court, which had procedural after an exhaustive assessment and evaluation of the evidence on
governance at the time, provided that a second motion for record, as evidenced by the respondent court's resolution of January
reconsideration may be presented within fifteen (15) days from 24, 1980 which we quote with approval:
notice of the order or judgment deducting the time in which the first
motion has been pending. 20 Private respondents having filed their
First. Plaintiff's jeep was running along the inside lane of
first motion for reconsideration on the last day of the reglementary
Lacson Street. If it had remained on that inside lane, it
period of fifteen (15) days within which to do so, they had only one
would not have hit the ACCIDENT MOUND.
(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 Exhibit B shows, through the tiremarks, that the ACCIDENT
denying their first motion for reconsideration, private respondents MOUND was hit by the jeep swerving from the left that is,
had two remedial options. On February 23, 1980, the remaining one swerving from the inside lane. What caused the swerving
(1) day of the aforesaid reglementary period, they could have filed a is not disclosed; but, as the cause of the accident,
motion for leave of court to file a second motion for defendant cannot be made liable for the damages suffered
reconsideration, conceivably with a prayer for the extension of the by plaintiffs. The accident was not due to the absence of
period within which to do so. On the other hand, they could have warning signs, but to the unexplained abrupt swerving of
appealed through a petition for review on certiorari to this Court the jeep from the inside lane. That may explain plaintiff-
within fifteen (15) days from February 23, 1980. 22 Instead, they filed husband's insistence that he did not see the ACCIDENT
a motion for leave to file a second motion 'for reconsideration on MOUND for which reason he ran into it.
February 29, 1980, and said second motion for reconsideration on
March 7, 1980, both of which motions were by then time-barred. Second. That plaintiff's jeep was on the inside lane before
it swerved to hit the ACCIDENT MOUND could have been
Consequently, after the expiration on February 24, 1980 of the corroborated by a picture showing Lacson Street to the
original fifteen (15) day period, the running of which was suspended south of the ACCIDENT MOUND.
during the pendency of the first motion for reconsideration, the
Court of Appeals could no longer validly take further proceedings on It has been stated that the ditches along Lacson Street had
the merits of the case, much less to alter, modify or reconsider its already been covered except the 3 or 4 meters where the
aforesaid decision and/or resolution. The filing of the motion for ACCIDENT MOUND was located. Exhibit B-1 shows that the
leave to file a second motion for reconsideration by herein ditches on Lacson Street north of the ACCIDENT MOUND
respondents on February 29, 1980 and the subsequent filing of the had already been covered, but not in such a way as to
motion itself on March 7, 1980, after the expiration of the allow the outer lane to be freely and conveniently
reglementary period to file the same, produced no legal effects. passable to vehicles. The situation could have been worse
Only a motion for re-hearing or reconsideration filed in time shall to the south of the ACCIDENT MOUND for which reason no
stay the final order or judgment sought to be re-examined. 23 picture of the ACCIDENT MOUND facing south was taken.

88
 Third. Plaintiff's jeep was not running at 25 kilometers an As aptly observed by respondent court in its aforecited extended
hour as plaintiff-husband claimed. At that speed, he could resolution of January 24, 1980 —
have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the (a) There was no third party eyewitness of the accident. As
ACCIDENT MOUND several feet as indicated by the to how the accident occurred, the Court can only rely on
tiremarks in Exhibit B. The jeep must have been running the testimonial evidence of plaintiffs themselves, and such
quite fast. If the jeep had been braked at 25 kilometers an evidence should be very carefully evaluated, with
hour, plaintiff's would not have been thrown against the defendant, as the party being charged, being given the
windshield and they would not have suffered their injuries. benefit of any doubt. Definitely without ascribing the same
motivation to plaintiffs, another person could have
Fourth. If the accident did not happen because the jeep deliberately engineered a similar accident in the hope and
was running quite fast on the inside lane and for some expectation that the Court can grant him substantial moral
reason or other it had to swerve suddenly to the right and and exemplary damages from the big corporation that
had to climb over the ACCIDENT MOUND, then plaintiff- defendant is. The statement is made only to stress the
husband had not exercised the diligence of a good father disadvantageous position of defendant which would have
of a family to avoid the accident. With the drizzle, he extreme difficulty in contesting such person's claim. If
should not have run on dim lights, but should have put on there were no witness or record available from the police
his regular lights which should have made him see the department of Bacolod, defendant would not be able to
ACCIDENT MOUND in time. If he was running on the determine for itself which of the conflicting testimonies of
outside lane at 25 kilometers an hour, even on dim lights, plaintiffs is correct as to the report or non-report of the
his failure to see the ACCIDENT MOUND in time to brake accident to the police department.32
the car was negligence on his part. The ACCIDENT MOUND
was relatively big and visible, being 2 to 3 feet high and 1- A person claiming damages for the negligence of another has the
1/2 feet wide. If he did not see the ACCIDENT MOUND in burden of proving the existence of such fault or negligence causative
time, he would not have seen any warning sign either. He thereof. The facts constitutive of negligence must be affirmatively
knew of the existence and location of the ACCIDENT established by competent evidence.33 Whosoever relies on
MOUND, having seen it many previous times. With negligence for his cause of action has the burden in the first instance
ordinary precaution, he should have driven his jeep on the of proving the existence of the same if contested, otherwise his
night of the accident so as to avoid hitting the ACCIDENT action must fail.
MOUND.29
WHEREFORE, the resolutions of respondent Court of Appeals, dated
The above findings clearly show that the negligence of respondent March 11, 1980 and September 3,1980, are hereby SET ASIDE. Its
Antonio Esteban was not only contributory to his injuries and those original decision, promulgated on September 25,1979, is hereby
of his wife but goes to the very cause of the occurrence of the REINSTATED and AFFIRMED.
accident, as one of its determining factors, and thereby precludes
their right to recover damages.30 The perils of the road were known
SO ORDERED.
to, hence appreciated and assumed by, private respondents. By
exercising reasonable care and prudence, respondent Antonio
Esteban could have avoided the injurious consequences of his act,
even assuming arguendo that there was some alleged negligence on
the part of petitioner.

The presence of warning signs could not have completely prevented

the accident; the only purpose of said signs was to inform and warn
the public of the presence of excavations on the site. The private
respondents already knew of the presence of said excavations. It
was not the lack of knowledge of these excavations which caused
the jeep of respondents to fall into the excavation but the
unexplained sudden swerving of the jeep from the inside lane
towards the accident mound. As opined in some quarters, the
omission to perform a duty, such as the placing of warning signs on
the site of the excavation, constitutes the proximate cause only G.R. No. L-12986 March 31, 1966
when the doing of the said omitted act would have prevented the
injury.31 It is basic that private respondents cannot charge PLDT for
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the
their injuries where their own failure to exercise due and reasonable
HEIRS OF DOMINGA ONG, petitioners-appellants,
care was the cause thereof. It is both a societal norm and necessity
vs.CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
that one should exercise a reasonable degree of caution for his own
APPEALS, respondents-appellees.
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 Ross, Selph, Carrascoso and Janda for the respondents.
Lacson Street, he passed on that street almost everyday and had Bernabe Africa, etc. for the petitioners.
knowledge of the presence and location of the excavations there. It
was his negligence that exposed him and his wife to danger, hence MAKALINTAL., J.:
he is solely responsible for the consequences of his imprudence.
This case is before us on a petition for review of the decision of the
Moreover, we also sustain the findings of respondent Court of Court of Appeals, which affirmed that of the Court of First Instance
Appeals in its original decision that there was insufficient evidence of Manila dismissing petitioners' second amended complaint against
to prove any negligence on the part of PLDT. We have for respondents.
consideration only the self-serving testimony of respondent Antonio
Esteban and the unverified photograph of merely a portion of the The action is for damages under Articles 1902 and 1903 of the old
scene of the accident. The absence of a police report of the incident Civil Code. It appears that in the afternoon of March 18, 1948 a fire
and the non-submission of a medical report from the hospital where broke out at the Caltex service station at the corner of Antipolo
private respondents were allegedly treated have not even been street and Rizal Avenue, Manila. It started while gasoline was being
satisfactorily explained. hosed from a tank truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several neighboring houses,

89
including the personal properties and effects inside them. Their facts mentioned in his alleged report (signed by Detective Zapanta).
owners, among them petitioners here, sued respondents Caltex All he said was that he was one of those who investigated "the
(Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the location of the fire and, if possible, gather witnesses as to the
station and the second as its agent in charge of operation. occurrence, and that he brought the report with him. There was
Negligence on the part of both of them was attributed as the cause nothing, therefore, on which he need be cross-examined; and the
of the fire. contents of the report, as to which he did not testify, did not
thereby become competent evidence. And even if he had testified,
The trial court and the Court of Appeals found that petitioners failed his testimony would still have been objectionable as far as
to prove negligence and that respondents had exercised due care in information gathered by him from third persons was concerned.
the premises and with respect to the supervision of their employees.
Petitioners maintain, however, that the reports in themselves, that
The first question before Us refers to the admissibility of certain is, without further testimonial evidence on their contents, fall within
reports on the fire prepared by the Manila Police and Fire the scope of section 35, Rule 123, which provides that "entries in
Departments and by a certain Captain Tinio of the Armed Forces of official records made in the performance of his duty by a public
the Philippines. Portions of the first two reports are as follows: officer of the Philippines, or by a person in the performance of a
duty specially enjoined by law, are prima facie evidence of the facts
therein stated."
1. Police Department report: —

There are three requisites for admissibility under the rule just
Investigation disclosed that at about 4:00 P.M.
mentioned: (a) that the entry was made by a public officer, or by
March 18, 1948, while Leandro Flores was
another person specially enjoined by law to do so; (b) that it was
transferring gasoline from a tank truck, plate No.
made by the public officer in the performance of his duties, or by
T-5292 into the underground tank of the Caltex
such other person in the performance of a duty specially enjoined by
Gasoline Station located at the corner of Rizal
law; and (c) that the public officer or other person had sufficient
Avenue and Antipolo Street, this City, an
knowledge of the facts by him stated, which must have been
unknown Filipino lighted a cigarette and threw
acquired by him personally or through official information (Moran,
the burning match stick near the main valve of
Comments on the Rules of Court, Vol. 3 [1957] p. 398).
the said underground tank. Due to the gasoline
fumes, fire suddenly blazed. Quick action of
Leandro Flores in pulling off the gasoline hose Of the three requisites just stated, only the last need be considered
connecting the truck with the underground tank here. Obviously the material facts recited in the reports as to the
prevented a terrific explosion. However, the cause and circumstances of the fire were not within the personal
flames scattered due to the hose from which the knowledge of the officers who conducted the investigation. Was
gasoline was spouting. It burned the truck and knowledge of such facts, however, acquired by them through official
the following accessorias and residences. information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as
an employee at the gas station were the fire occurred; to Leandro
2. The Fire Department report: —
Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and
In connection with their allegation that the premises was to respondent Mateo Boquiren, who could not, according to Exhibit
(sic) subleased for the installation of a coca-cola and V-Africa, give any reason as to the origin of the fire. To qualify their
cigarette stand, the complainants furnished this Office a statements as "official information" acquired by the officers who
copy of a photograph taken during the fire and which is prepared the reports, the persons who made the statements not
submitted herewith. it appears in this picture that there only must have personal knowledge of the facts stated but must
are in the premises a coca-cola cooler and a rack which have the duty to give such statements for record.1
according to information gathered in the neighborhood
contained cigarettes and matches, installed between the
The reports in question do not constitute an exception to the
gasoline pumps and the underground tanks.
hearsay rule; the facts stated therein were not acquired by the
reporting officers through official information, not having been given
The report of Captain Tinio reproduced information given by a by the informants pursuant to any duty to do so.
certain Benito Morales regarding the history of the gasoline station
and what the chief of the fire department had told him on the same
The next question is whether or not, without proof as to the cause
subject.
and origin of the fire, the doctrine of res ipsa loquitur should apply
so as to presume negligence on the part of appellees. Both the trial
The foregoing reports were ruled out as "double hearsay" by the court and the appellate court refused to apply the doctrine in the
Court of Appeals and hence inadmissible. This ruling is now assigned instant case on the grounds that "as to (its) applicability ... in the
as error. It is contended: first, that said reports were admitted by Philippines, there seems to he nothing definite," and that while the
the trial court without objection on the part of respondents; rules do not prohibit its adoption in appropriate cases, "in the case
secondly, that with respect to the police report (Exhibit V-Africa) at bar, however, we find no practical use for such doctrine." The
which appears signed by a Detective Zapanta allegedly "for Salvador question deserves more than such summary dismissal. The doctrine
Capacillo," the latter was presented as witness but respondents has actually been applied in this jurisdiction, in the case of Espiritu
waived their right to cross-examine him although they had the vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R,
opportunity to do so; and thirdly, that in any event the said reports September 20, 1949), wherein the decision of the Court of Appeals
are admissible as an exception to the hearsay rule under section 35 was penned by Mr. Justice J.B.L. Reyes now a member of the
of Rule 123, now Rule 130. Supreme Court.

The first contention is not borne out by the record. The transcript of The facts of that case are stated in the decision as follows:
the hearing of September 17, 1953 (pp. 167-170) shows that the
reports in question, when offered as evidence, were objected to by
In the afternoon of May 5, 1946, while the plaintiff-
counsel for each of respondents on the ground that they were
appellee and other companions were loading grass
hearsay and that they were "irrelevant, immaterial and
between the municipalities of Bay and Calauan, in the
impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5
province of Laguna, with clear weather and without any
and X-6 were admitted without objection; the admission of the
wind blowing, an electric transmission wire, installed and
others, including the disputed ones, carried no such explanation.
maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly
On the second point, although Detective Capacillo did take the parted, and one of the broken ends hit the head of the
witness stand, he was not examined and he did not testify as to the plaintiff as he was about to board the truck. As a result,
90
 plaintiff received the full shock of 4,400 volts carried by reversed this judgment, on the ground the testimony
the wire and was knocked unconscious to the ground. The failed to show with reasonable certainty any negligence on
electric charge coursed through his body and caused the part of the Shell Petroleum Corporation or any of its
extensive and serious multiple burns from skull to legs, agents or employees. Plaintiff applied to this Court for a
leaving the bone exposed in some parts and causing Writ of Review which was granted, and the case is now
intense pain and wounds that were not completely healed before us for decision.1äwphï1.ñët
when the case was tried on June 18, 1947, over one year
after the mishap. In resolving the issue of negligence, the Supreme Court of Louisiana
held:
The defendant therein disclaimed liability on the ground that the
plaintiff had failed to show any specific act of negligence, but the Plaintiff's petition contains two distinct charges of
appellate court overruled the defense under the doctrine of res ipsa negligence — one relating to the cause of the fire and the
loquitur. The court said: other relating to the spreading of the gasoline about the
filling station.
The first point is directed against the sufficiency of
plaintiff's evidence to place appellant on its defense. While Other than an expert to assess the damages caused
it is the rule, as contended by the appellant, that in case of plaintiff's building by the fire, no witnesses were placed on
noncontractual negligence, or culpa aquiliana, the burden the stand by the defendant.
of proof is on the plaintiff to establish that the proximate
cause of his injury was the negligence of the defendant, it
Taking up plaintiff's charge of negligence relating to the
is also a recognized principal that "where the thing which
cause of the fire, we find it established by the record that
caused injury, without fault of the injured person, is under
the filling station and the tank truck were under the
the exclusive control of the defendant and the injury is
control of the defendant and operated by its agents or
such as in the ordinary course of things does not occur if
employees. We further find from the uncontradicted
he having such control use proper care, it affords
testimony of plaintiff's witnesses that fire started in the
reasonable evidence, in the absence of the explanation,
underground tank attached to the filling station while it
that the injury arose from defendant's want of care."
was being filled from the tank truck and while both the
tank and the truck were in charge of and being operated
And the burden of evidence is shifted to him to establish by the agents or employees of the defendant, extended to
that he has observed due care and diligence. (San Juan the hose and tank truck, and was communicated from the
Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) burning hose, tank truck, and escaping gasoline to the
This rule is known by the name of res ipsa loquitur (the building owned by the plaintiff.
transaction speaks for itself), and is peculiarly applicable to
the case at bar, where it is unquestioned that the plaintiff
Predicated on these circumstances and the further
had every right to be on the highway, and the electric wire
circumstance of defendant's failure to explain the cause of
was under the sole control of defendant company. In the
the fire or to show its lack of knowledge of the cause,
ordinary course of events, electric wires do not part
plaintiff has evoked the doctrine of res ipsa loquitur. There
suddenly in fair weather and injure people, unless they are
are many cases in which the doctrine may be successfully
subjected to unusual strain and stress or there are defects
invoked and this, we think, is one of them.
in their installation, maintenance and supervision; just as
barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was Where the thing which caused the injury complained of is
negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. shown to be under the management of defendant or his
Reprint 299, the leading case that established that rule). servants and the accident is such as in the ordinary course
Consequently, in the absence of contributory negligence of things does not happen if those who have its
(which is admittedly not present), the fact that the wire management or control use proper care, it affords
snapped suffices to raise a reasonable presumption of reasonable evidence, in absence of explanation by
negligence in its installation, care and maintenance. defendant, that the accident arose from want of care. (45
Thereafter, as observed by Chief Baron Pollock, "if there C.J. #768, p. 1193).
are any facts inconsistent with negligence, it is for the
defendant to prove." This statement of the rule of res ipsa loquitur has been
widely approved and adopted by the courts of last resort.
It is true of course that decisions of the Court of Appeals do not lay Some of the cases in this jurisdiction in which the doctrine
down doctrines binding on the Supreme Court, but we do not has been applied are the following, viz.: Maus v. Broderick,
consider this a reason for not applying the particular doctrine of res 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice,
ipsa loquitur in the case at bar. Gasoline is a highly combustible etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St.
material, in the storage and sale of which extreme care must be Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So.
taken. On the other hand, fire is not considered a fortuitous event, 892; Bents v. Page, 115 La. 560, 39 So. 599.
as it arises almost invariably from some act of man. A case strikingly
similar to the one before Us is Jones vs. Shell Petroleum The principle enunciated in the aforequoted case applies with equal
Corporation, et al., 171 So. 447: force here. The gasoline station, with all its appliances, equipment
and employees, was under the control of appellees. A fire occurred
Arthur O. Jones is the owner of a building in the city of therein and spread to and burned the neighboring houses. The
Hammon which in the year 1934 was leased to the Shell persons who knew or could have known how the fire started were
Petroleum Corporation for a gasoline filling station. On appellees and their employees, but they gave no explanation
October 8, 1934, during the term of the lease, while thereof whatsoever. It is a fair and reasonable inference that the
gasoline was being transferred from the tank wagon, also incident happened because of want of care.
operated by the Shell Petroleum Corporation, to the
underground tank of the station, a fire started with In the report submitted by Captain Leoncio Mariano of the Manila
resulting damages to the building owned by Jones. Alleging Police Department (Exh. X-1 Africa) the following appears:
that the damages to his building amounted to $516.95,
Jones sued the Shell Petroleum Corporation for the Investigation of the basic complaint disclosed that the
recovery of that amount. The judge of the district court, Caltex Gasoline Station complained of occupies a lot
after hearing the testimony, concluded that plaintiff was approximately 10 m x 10 m at the southwest corner of
entitled to a recovery and rendered judgment in his favor Rizal Avenue and Antipolo. The location is within a very
for $427.82. The Court of Appeals for the First Circuit busy business district near the Obrero Market, a railroad
91
 crossing and very thickly populated neighborhood where a relieve a wrongdoer from consequences of negligence, if such
great number of people mill around until gasoline ever be negligence directly and proximately cooperates with the
theWactjvities of these peopleor lighting a cigarette independent cause in the resulting injury." (MacAfee, et al. vs.
cannot be excluded and this constitute a secondary hazard Traver's Gas Corporation, 153 S.W. 2nd 442.)
to its operation which in turn endangers the entire
neighborhood to conflagration. The next issue is whether Caltex should be held liable for the
damages caused to appellants. This issue depends on whether
Furthermore, aside from precautions already taken by its Boquiren was an independent contractor, as held by the Court of
operator the concrete walls south and west adjoining the Appeals, or an agent of Caltex. This question, in the light of the facts
neighborhood are only 2-1/2 meters high at most and not controverted, is one of law and hence may be passed upon by
cannot avoid the flames from leaping over it in case of fire. this Court. These facts are: (1) Boquiren made an admission that he
was an agent of Caltex; (2) at the time of the fire Caltex owned the
Records show that there have been two cases of fire which gasoline station and all the equipment therein; (3) Caltex exercised
caused not only material damages but desperation and control over Boquiren in the management of the state; (4) the
also panic in the neighborhood. delivery truck used in delivering gasoline to the station had the
name of CALTEX painted on it; and (5) the license to store gasoline
at the station was in the name of Caltex, which paid the license fees.
Although the soft drinks stand had been eliminated, this
(Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6
gasoline service station is also used by its operator as a
Africa; Exhibit Y-Africa).
garage and repair shop for his fleet of taxicabs numbering
ten or more, adding another risk to the possible outbreak
of fire at this already small but crowded gasoline station. In Boquiren's amended answer to the second amended complaint,
he denied that he directed one of his drivers to remove gasoline
from the truck into the tank and alleged that the "alleged driver, if
The foregoing report, having been submitted by a police officer in
one there was, was not in his employ, the driver being an employee
the performance of his duties on the basis of his own personal
of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It
observation of the facts reported, may properly be considered as an
is true that Boquiren later on amended his answer, and that among
exception to the hearsay rule. These facts, descriptive of the location
the changes was one to the effect that he was not acting as agent of
and objective circumstances surrounding the operation of the
Caltex. But then again, in his motion to dismiss appellants' second
gasoline station in question, strengthen the presumption of
amended complaint the ground alleged was that it stated no cause
negligence under the doctrine of res ipsa loquitur, since on their face
of action since under the allegations thereof he was merely acting as
they called for more stringent measures of caution than those which
agent of Caltex, such that he could not have incurred personal
would satisfy the standard of due diligence under ordinary
liability. A motion to dismiss on this ground is deemed to be an
circumstances. There is no more eloquent demonstration of this
admission of the facts alleged in the complaint.
than the statement of Leandro Flores before the police investigator.
Flores was the driver of the gasoline tank wagon who, alone and
without assistance, was transferring the contents thereof into the Caltex admits that it owned the gasoline station as well as the
underground storage when the fire broke out. He said: "Before equipment therein, but claims that the business conducted at the
loading the underground tank there were no people, but while the service station in question was owned and operated by Boquiren.
loading was going on, there were people who went to drink coca- But Caltex did not present any contract with Boquiren that would
cola (at the coca-cola stand) which is about a meter from the hole reveal the nature of their relationship at the time of the fire. There
leading to the underground tank." He added that when the tank was must have been one in existence at that time. Instead, what was
almost filled he went to the tank truck to close the valve, and while presented was a license agreement manifestly tailored for purposes
he had his back turned to the "manhole" he, heard someone shout of this case, since it was entered into shortly before the expiration of
"fire." the one-year period it was intended to operate. This so-called
license agreement (Exhibit 5-Caltex) was executed on November 29,
1948, but made effective as of January 1, 1948 so as to cover the
Even then the fire possibly would not have spread to the
date of the fire, namely, March 18, 1948. This retroactivity provision
neighboring houses were it not for another negligent omission on
is quite significant, and gives rise to the conclusion that it was
the part of defendants, namely, their failure to provide a concrete
designed precisely to free Caltex from any responsibility with
wall high enough to prevent the flames from leaping over it. As it
respect to the fire, as shown by the clause that Caltex "shall not be
was the concrete wall was only 2-1/2 meters high, and beyond that
liable for any injury to person or property while in the property
height it consisted merely of galvanized iron sheets, which would
herein licensed, it being understood and agreed that LICENSEE
predictably crumple and melt when subjected to intense heat.
(Boquiren) is not an employee, representative or agent of LICENSOR
Defendants' negligence, therefore, was not only with respect to the
(Caltex)."
cause of the fire but also with respect to the spread thereof to the
neighboring houses.
But even if the license agreement were to govern, Boquiren can
hardly be considered an independent contractor. Under that
There is an admission on the part of Boquiren in his amended
agreement Boquiren would pay Caltex the purely nominal sum of
answer to the second amended complaint that "the fire was caused
P1.00 for the use of the premises and all the equipment therein. He
through the acts of a stranger who, without authority, or permission
could sell only Caltex Products. Maintenance of the station and its
of answering defendant, passed through the gasoline station and
equipment was subject to the approval, in other words control, of
negligently threw a lighted match in the premises." No evidence on
Caltex. Boquiren could not assign or transfer his rights as licensee
this point was adduced, but assuming the allegation to be true —
without the consent of Caltex. The license agreement was supposed
certainly any unfavorable inference from the admission may be
to be from January 1, 1948 to December 31, 1948, and thereafter
taken against Boquiren — it does not extenuate his negligence. A
until terminated by Caltex upon two days prior written notice. Caltex
decision of the Supreme Court of Texas, upon facts analogous to
could at any time cancel and terminate the agreement in case
those of the present case, states the rule which we find acceptable
Boquiren ceased to sell Caltex products, or did not conduct the
here. "It is the rule that those who distribute a dangerous article or
business with due diligence, in the judgment of Caltex. Termination
agent, owe a degree of protection to the public proportionate to
of the contract was therefore a right granted only to Caltex but not
and commensurate with a danger involved ... we think it is the
to Boquiren. These provisions of the contract show the extent of the
generally accepted rule as applied to torts that 'if the effects of the
control of Caltex over Boquiren. The control was such that the latter
actor's negligent conduct actively and continuously operate to bring
was virtually an employee of the former.
about harm to another, the fact that the active and substantially
simultaneous operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in bringing about Taking into consideration the fact that the operator owed
the harm, does not protect the actor from liability.' (Restatement of his position to the company and the latter could remove
the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The him or terminate his services at will; that the service
intention of an unforeseen and unexpected cause, is not sufficient to station belonged to the company and bore its tradename

92
 and the operator sold only the products of the company; Footnotes
that the equipment used by the operator belonged to the
company and were just loaned to the operator and the
company took charge of their repair and maintenance;
that an employee of the company supervised the operator
and conducted periodic inspection of the company's
gasoline and service station; that the price of the products
sold by the operator was fixed by the company and not by
the operator; and that the receipts signed by the operator
indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the
company and not an independent contractor should not
be disturbed.

To determine the nature of a contract courts do not have

or are not bound to rely upon the name or title given it by
the contracting parties, should thereby a controversy as to
what they really had intended to enter into, but the way
the contracting parties do or perform their respective
obligations stipulated or agreed upon may be shown and
inquired into, and should such performance conflict with
the name or title given the contract by the parties, the
former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of
Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the

purpose of creating the apparent relationship of employer
and independent contractor, and of avoiding liability for
the negligence of the employees about the station; but the
company was not satisfied to allow such relationship to
exist. The evidence shows that it immediately assumed
control, and proceeded to direct the method by which the
work contracted for should be performed. By reserving the
right to terminate the contract at will, it retained the
means of compelling submission to its orders. Having
elected to assume control and to direct the means and
methods by which the work has to be performed, it must
be held liable for the negligence of those performing
service under its direction. We think the evidence was
sufficient to sustain the verdict of the jury. (Gulf Refining
Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station

belonged to Boquiren. But no cash invoices were presented to show
that Boquiren had bought said gasoline from Caltex. Neither was
there a sales contract to prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80,

after deducting the amount of P2,000.00 collected by them on the
insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code,
which provides for the subrogation of the insurer to the rights of the
insured, was not yet in effect when the loss took place. However,
G.R. No. L-52732 August 29, 1988
regardless of the silence of the law on this point at that time, the
amount that should be recovered be measured by the damages
actually suffered, otherwise the principle prohibiting unjust F.F. CRUZ and CO., INC., petitioner,
enrichment would be violated. With respect to the claim of the heirs vs. THE COURT OF APPEALS, GREGORIO MABLE as substituted by
of Ong P7,500.00 was adjudged by the lower court on the basis of his wife LUZ ALMONTE MABLE and children DOMING, LEONIDAS,
the assessed value of the property destroyed, namely, P1,500.00, LIGAYA, ELENA, GREGORIO, JR., SALOME, ANTONIO, and
disregarding the testimony of one of the Ong children that said BERNARDO all surnamed MABLE, respondents.
property was worth P4,000.00. We agree that the court erred, since
it is of common knowledge that the assessment for taxation Luis S. Topacio for petitioner.
purposes is not an accurate gauge of fair market value, and in this
case should not prevail over positive evidence of such value. The Mauricio M. Monta for respondents.
heirs of Ong are therefore entitled to P10,000.00.
CORTES, J.:
Wherefore, the decision appealed from is reversed and
respondents-appellees are held liable solidarily to appellants, and
This petition to review the decision of the Court of Appeals puts in
ordered to pay them the aforesaid sum of P9,005.80 and
issue the application of the common law doctrine of res ipsa
P10,000.00, respectively, with interest from the filing of the
loquitur.
complaint, and costs.

The essential facts of the case are not disputed.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera,
Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

93
The furniture manufacturing shop of petitioner in Caloocan City was 1980. After the parties filed their memoranda, the case was
situated adjacent to the residence of private respondents. Sometime submitted for decision on January 21, 1981.
in August 1971, private respondent Gregorio Mable first approached
Eric Cruz, petitioner's plant manager, to request that a firewall be Petitioner contends that the Court of Appeals erred:
constructed between the shop and private respondents' residence.
The request was repeated several times but they fell on deaf ears. In
1. In not deducting the sum of P35,000.00, which private
the early morning of September 6, 1974, fire broke out in
respondents recovered on the insurance on their house, from the
petitioner's shop. Petitioner's employees, who slept in the shop
award of damages.
premises, tried to put out the fire, but their efforts proved futile. The
2. In awarding excessive and/or unproved damages.
fire spread to private respondents' house. Both the shop and the
3. In applying the doctrine of res ipsa loquitur to the facts of the
house were razed to the ground. The cause of the conflagration was
instant case.
never discovered. The National Bureau of Investigation found
specimens from the burned structures negative for the presence of
inflammable substances. The pivotal issue in this case is the applicability of the common law
doctrine of res ipsa loquitur, the issue of damages being merely
consequential. In view thereof, the errors assigned by petitioner
Subsequently, private respondents collected P35,000.00 on the
shall be discussed in the reverse order.
insurance on their house and the contents thereof.

1. The doctrine of res ipsa loquitur, whose application to the instant

On January 23, 1975, private respondents filed an action for
case petitioner objects to, may be stated as follows:
damages against petitioner, praying for a judgment in their favor
awarding P150,000.00 as actual damages, P50,000.00 as moral
damages, P25,000.00 as exemplary damages, P20,000.00 as Where the thing which caused the injury complained of is
attorney's fees and costs. The Court of First Instance held for private shown to be under the management of the defendant or
respondents: his servants and the accident is such as in the ordinary
course of things does not happen if those who have its
management or control use proper care, it affords
WHEREFORE, the Court hereby renders
reasonable evidence, in the absence of explanation by the
judgment, in favor of plaintiffs, and against the
defendant, that the accident arose from want of care.
defendant:
[Africa v. Caltex (Phil.), Inc., G.R. No. L-12986, March 31,
1966, 16 SCRA 448.]
1. Ordering the defendant to pay to the plaintiffs
the amount of P80,000.00 for damages suffered
Thus, in Africa, supra, where fire broke out in a Caltex service station
by said plaintiffs for the loss of their house, with
while gasoline from a tank truck was being unloaded into an
interest of 6% from the date of the filing of the
underground storage tank through a hose and the fire spread to and
Complaint on January 23, 1975, until fully paid;
burned neighboring houses, this Court, applying the doctrine of res
ipsa loquitur, adjudged Caltex liable for the loss.
2. Ordering the defendant to pay to the plaintiffs
the sum of P50,000.00 for the loss of plaintiffs'
The facts of the case likewise call for the application of the doctrine,
furnitures, religious images, silverwares,
considering that in the normal course of operations of a furniture
chinawares, jewelries, books, kitchen utensils,
manufacturing shop, combustible material such as wood chips,
clothing and other valuables, with interest of 6%
sawdust, paint, varnish and fuel and lubricants for machinery may
from date of the filing of the Complaint on
be found thereon.
January 23, 1975, until fully paid;

It must also be noted that negligence or want of care on the part of

3. Ordering the defendant to pay to the plaintiffs
petitioner or its employees was not merely presumed. The Court of
the sum of P5,000.00 as moral damages,
Appeals found that petitioner failed to construct a firewall between
P2,000.00 as exemplary damages, and P5,000.00
its shop and the residence of private respondents as required by a
as and by way of attorney's fees;
city ordinance; that the fire could have been caused by a heated
motor or a lit cigarette; that gasoline and alcohol were used and
4. With costs against the defendant; stored in the shop; and that workers sometimes smoked inside the
shop [CA Decision, p. 5; Rollo, p. 33.]
5. Counterclaim is ordered dismissed, for lack of
merit. [CA Decision, pp. 1-2; Rollo, pp. 29-30.] Even without applying the doctrine of res ipsa loquitur, petitioner's
failure to construct a firewall in accordance with city ordinances
On appeal, the Court of Appeals, in a decision promulgated on would suffice to support a finding of negligence.
November 19, 1979, affirmed the decision of the trial court but
reduced the award of damages: Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent
WHEREFORE, the decision declaring the omission on the part of defendants, namely, their failure
defendants liable is affirmed. The damages to be to provide a concrete wall high enough to prevent the
awarded to plaintiff should be reduced to flames from leaping over it. As it was the concrete wall
P70,000.00 for the house and P50,000.00 for the was only 2-1/2 meters high, and beyond that height it
furniture and other fixtures with legal interest consisted merely of galvanized iron sheets, which would
from the date of the filing of the complaint until predictably crumble and melt when subjected to intense
full payment thereof. [CA Decision, p. 7; Rollo, p. heat. Defendant's negligence, therefore, was not only with
35.] respect to the cause of the fire but also with respect to the
spread thereof to the neighboring houses. [Africa v. Caltex
A motion for reconsideration was filed on December 3, 1979 but was (Phil.), Inc., supra; Emphasis supplied.]
denied in a resolution dated February 18, 1980. Hence, petitioner
filed the instant petition for review on February 22, 1980. After the In the instant case, with more reason should petitioner be found
comment and reply were filed, the Court resolved to deny the guilty of negligence since it had failed to construct a firewall
petition for lack of merit on June 11, 1980. between its property and private respondents' residence which
sufficiently complies with the pertinent city ordinances. The failure
However, petitioner filed a motion for reconsideration, which was to comply with an ordinance providing for safety regulations had
granted, and the petition was given due course on September 12, been ruled by the Court as an act of negligence [Teague v.
Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]
94
The Court of Appeals, therefore, had more than adequate basis to Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
find petitioner liable for the loss sustained by private respondents.

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

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

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

3. While this Court finds that petitioner is liable for damages to

private respondents as found by the Court of Appeals, the fact that
private respondents have been indemnified by their insurer in the
amount of P35,000.00 for the damage caused to their house and its
contents has not escaped the attention of the Court. Hence, the
Court holds that in accordance with Article 2207 of the Civil Code
the amount of P35,000.00 should be deducted from the amount
awarded as damages. Said article provides:

Art. 2207. If the plaintiffs property has been insured, and

he has received indemnity from the insurance company
for the injury or loss arising out of the wrong or breach of
contract complained of, the insurance company is
subrogated to the rights of the insured against the
wrongdoer or the person who violated the contract. If the
amount paid by the insurance company does not fully
cover the injury or loss, the aggrieved party shall be
G.R. No. 137873 April 20, 2001
entitled to recover the deficiency from the person causing
the loss or injury. (Emphasis supplied.]
D. M. CONSUNJI, INC., petitioner,
vs.
The law is clear and needs no interpretation. Having been
COURT OF APPEALS and MARIA J. JUEGO, respondents.
indemnified by their insurer, private respondents are only entitled
to recover the deficiency from petitioner.
KAPUNAN, J.:
On the other hand, the insurer, if it is so minded, may seek
reimbursement of the amount it indemnified private respondents At around 1:30 p.m., November 2, 1990, Jose Juego, a construction
from petitioner. This is the essence of its right to be subrogated to worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance
the rights of the insured, as expressly provided in Article 2207. Upon Tower, Pasig City to his death.
payment of the loss incurred by the insured, the insurer is entitled to
be subrogated pro tanto to any right of action which the insured PO3 Rogelio Villanueva of the Eastern Police District investigated the
may have against the third person whose negligence or wrongful act tragedy and filed a report dated November 25, 1990, stating that:
caused the loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc.,
G.R. No. L-27427, April 7, 1976, 70 SCRA 323.] x x x. [The] [v]ictim was rushed to [the] Rizal Medical
Center in Pasig, Metro Manila where he was pronounced
Under Article 2207, the real party in interest with regard to the dead on arrival (DOA) by the attending physician, Dr. Errol
indemnity received by the insured is the insurer [Phil. Air Lines, Inc. de Yzo[,] at around 2:15 p.m. of the same date.
v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the
insurer should exercise the rights of the insured to which it had been Investigation disclosed that at the given time, date and
subrogated lies solely within the former's sound discretion. Since the place, while victim Jose A. Juego together with Jessie
insurer is not a party to the case, its identity is not of record and no Jaluag and Delso Destajo [were] performing their work as
claim is made on its behalf, the private respondent's insurer has to carpenter[s] at the elevator core of the 14th floor of the
claim his right to reimbursement of the P35,000.00 paid to the Tower D, Renaissance Tower Building on board a
insured. [p]latform made of channel beam (steel) measuring 4.8
meters by 2 meters wide with pinulid plywood flooring
WHEREFORE, in view of the foregoing, the decision of the Court of and cable wires attached to its four corners and hooked at
Appeals is hereby AFFIRMED with the following modifications as to the 5 ton chain block, when suddenly, the bolt or pin
the damages awarded for the loss of private respondents' house, which was merely inserted to connect the chain block with
considering their receipt of P35,000.00 from their insurer: (1) the the [p]latform, got loose xxx causing the whole [p]latform
damages awarded for the loss of the house is reduced to assembly and the victim to fall down to the basement of
P35,000.00; and (2) the right of the insurer to subrogation and thus the elevator core, Tower D of the building under
seek reimbursement from petitioner for the P35,000.00 it had paid construction thereby crushing the victim of death, save his
private respondents is recognized. two (2) companions who luckily jumped out for safety.

SO ORDERED.

95
 It is thus manifest that Jose A. Juego was crushed to death underneath the bare untested assertion of a witness, may be best
when the [p]latform he was then on board and performing brought to light and exposed by the test of cross-examiantion.7 The
work, fell. And the falling of the [p]latform was due to the hearsay rule, therefore, excludes evidence that cannot be tested by
removal or getting loose of the pin which was merely cross-examination.8
inserted to the connecting points of the chain block and
[p]latform but without a safety lock.1 The Rules of Court allow several exceptions to the rule,9 among
which are entries in official records. Section 44, Rule 130 provides:
On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional
Trial Court (RTC) of Pasig a complaint for damages against the Entries in official records made in the performance of his
deceased’s employer, D.M. Consunji, Inc. The employer raised, duty made in the performance of his duty by a public
among other defenses, the widow’s prior availment of the benefits officer of the Philippines, or by a person in the
from the State Insurance Fund. performance of a duty specially enjoined by law are prima
facie evidence of the facts therein stated.
After trial, the RTC rendered a decision in favor of the widow Maria
Juego. The dispositive portion of the RTC decision reads: In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the
work of Chief Justice Moran, enumerated the requisites for
WHEREFORE, judgment is hereby rendered ordering admissibility under the above rule:
defendant to pay plaintiff, as follows:
(a) that the entry was made by a public officer or by
1. P50,000.00 for the death of Jose A. Juego. another person specially enjoined by law to do so;
2. P10,000.00 as actual and compensatory
damages. (b) that it was made by the public officer in the
3. P464,000.00 for the loss of Jose A. Juego’s performance of his duties, or by such other person in the
earning capacity. performance of a duty specially enjoined by law; and
4. P100,000.00 as moral damages.
5. P20,000.00 as attorney’s fees, plus the costs
(c) that the public officer or other person had sufficient
of suit.
knowledge of the facts by him stated, which must have
been acquired by him personally or through official
SO ORDERED.2 information.

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the The CA held that the police report meets all these requisites.
decision of the RTC in toto. Petitioner contends that the last requisite is not present.

D. M. Consunji now seeks the reversal of the CA decision on the The Court notes that PO3 Villanueva, who signed the report in
following grounds: question, also testified before the trial court. In Rodriguez vs. Court
of Appeals,11 which involved a Fire Investigation Report, the officer
 THE APPELLATE COURT ERRED IN HOLDING THAT who signed the fire report also testified before the trial court. This
THE POLICE REPORT WAS ADMISSIBLE EVIDENCE Court held that the report was inadmissible for the purpose of
OF THE ALLEGED NEGLIGENCE OF PETITIONER. 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.
 THE APPELLATE COURT ERRED IN HOLDING THAT
THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE x x x. Since Major Enriquez himself took the witness stand
PART OF PETITIONER. 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
 THE APPELLATE COURT ERRED IN HOLDING THAT hearsay. The rest of the report, such as the summary of
PETITIONER IS PRESUMED NEGLIGENT UNDER the statements of the parties based on their sworn
ARTICLE 2180 OF THE CIVIL CODE, AND statements (which were annexed to the Report) as well as
the latter, having been included in the first purpose of the
 THE APPELLATE COURT ERRED IN HOLDING THAT offer [as part of the testimony of Major Enriquez], may
RESPONDENT IS NOT PRECLUDED FROM then be considered as independently relevant
RECOVERING DAMAGES UNDER THE CIVIL statements which were gathered in the course of the
CODE.3 investigation and may thus be admitted as such, but not
necessarily to prove the truth thereof. It has been said
Petitioner maintains that the police report reproduced above is that:
hearsay and, therefore, inadmissible. The CA ruled otherwise. It held
that said report, being an entry in official records, is an exception to "Where regardless of the truth or falsity of a
the hearsay rule. statement, the fact that it has been made is
relevant, the hearsay rule does not apply, but
The Rules of Court provide that a witness can testify only to those the statement may be shown. Evidence as to the
facts which he knows of his personal knowledge, that is, which are making of such statement is not secondary but
derived from his perception.4 A witness, therefore, may not testify as primary, for the statement itself may constitute
what he merely learned from others either because he was told or a fact in issue, or be circumstantially relevant as
read or heard the same. Such testimony is considered hearsay and to the existence of such a fact."
may not be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule. When Major Enriquez took the witness stand, testified for
petitioners on his Report and made himself available for
Hearsay is not limited to oral testimony or statements; the general cross-examination by the adverse party, the Report,
rule that excludes hearsay as evidence applies to written, as well as insofar as it proved that certain utterances were made
oral statements.6 (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
The theory of the hearsay rule is that the many possible deficiencies, testimony in open court of the officer who made the
suppressions, sources of error and untrustworthiness, which lie official record, considers the matter as an exception to the
96
 hearsay rule and makes the entries in said official record direct proof and furnishes a substitute for specific proof of
admissible in evidence as prima facie evidence of the facts negligence.20
therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as The concept of res ipsa loquitur has been explained in this wise:
explained in Antillon v. Barcelon.
While negligence is not ordinarily inferred or presumed,
The litigation is unlimited in which testimony by and while the mere happening of an accident or injury will
officials is daily needed; the occasions in which not generally give rise to an inference or presumption that
the officials would be summoned from his it was due to negligence on defendant’s part, under the
ordinary duties to declare as a witness are doctrine of res ipsa loquitur, which means, literally, the
numberless. The public officers are few in whose thing or transaction speaks for itself, or in one jurisdiction,
daily work something is not done in which that the thing or instrumentality speaks for itself, the facts
testimony is not needed from official sources. or circumstances accompanying an injury may be such as
Were there no exception for official statements, to raise a presumption, or at least permit an inference of
hosts of officials would be found devoting the negligence on the part of the defendant, or some other
greater part of their time to attending as person who is charged with negligence.
witnesses in court or delivering deposition
before an officer. The work of administration of
x x x where it is shown that the thing or instrumentality
government and the interest of the public having
which caused the injury complained of was under the
business with officials would alike suffer in
control or management of the defendant, and that the
consequence. For these reasons, and for many
occurrence resulting in the injury was such as in the
others, a certain verity is accorded such
ordinary course of things would not happen if those who
documents, which is not extended to private
had its control or management used proper care, there is
documents. (3 Wigmore on Evidence, Sec. 1631).
sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant,
The law reposes a particular confidence in public that the injury arose from or was caused by the
officers that it presumes they will discharge their defendant’s want of care.21
several trusts with accuracy and fidelity; and,
therefore, whatever acts they do in discharge of
One of the theoretical based for the doctrine is its necessity, i.e.,
their duty may be given in evidence and shall be
that necessary evidence is absent or not available.22
taken to be true under such a degree of caution
as to the nature and circumstances of each case
may appear to require. 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
It would have been an entirely different matter if Major
accident or has the best opportunity of ascertaining it and
Enriquez was not presented to testify on his report. In that
that the plaintiff has no such knowledge, and therefore is
case the applicability of Section 44 of Rule 143 would have
compelled to allege negligence in general terms and to
been ripe for determination, and this Court would have
rely upon the proof of the happening of the accident in
agreed with the Court of Appeals that said report was
order to establish negligence. The inference which the
inadmissible since the aforementioned third requisite was
doctrine permits is grounded upon the fact that the chief
not satisfied. The statements given by the sources of
evidence of the true cause, whether culpable or innocent,
information of Major Enriquez failed to qualify as "official
is practically accessible to the defendant but inaccessible
information," there being no showing that, at the very
to the injured person.
least, they were under a duty to give the statements for
record.
It has been said that the doctrine of res ipsa loquitur
furnishes a bridge by which a plaintiff, without knowledge
Similarly, the police report in this case is inadmissible for the
of the cause, reaches over to defendant who knows or
purpose of proving the truth of the statements contained therein
should know the cause, for any explanation of care
but is admissible insofar as it constitutes part of the testimony of
exercised by the defendant in respect of the matter of
PO3 Villanueva.
which the plaintiff complains. The res ipsa loquitur
doctrine, another court has said, is a rule of necessity, in
In any case, the Court holds that portions of PO3 Villanueva’s that it proceeds on the theory that under the peculiar
testimony which were of his personal knowledge suffice to prove circumstances in which the doctrine is applicable, it is
that Jose Juego indeed died as a result of the elevator crash. PO3 within the power of the defendant to show that there was
Villanueva had seen Juego’s remains at the morgue,12 making the no negligence on his part, and direct proof of defendant’s
latter’s death beyond dispute. PO3 Villanueva also conducted an negligence is beyond plaintiff’s power. Accordingly, some
ocular inspection of the premises of the building the day after the court add to the three prerequisites for the application of
incident13 and saw the platform for himself. 14 He observed that the the res ipsa loquitur doctrine the further requirement that
platform was crushed15 and that it was totally damaged.16 PO3 for the res ipsa loquitur doctrine to apply, it must appear
Villanueva also required Garcia and Fabro to bring the chain block to that the injured party had no knowledge or means of
the police headquarters. Upon inspection, he noticed that the chain knowledge as to the cause of the accident, or that the
was detached from the lifting machine, without any pin or bolt. 17 party to be charged with negligence has superior
knowledge or opportunity for explanation of the
What petitioner takes particular exception to is PO3 Villanueva’s accident.23
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 The CA held that all the requisites of res ipsa loquitur are present in
portion of the testimony is mere opinion. Subject to certain the case at bar:
exceptions,18 the opinion of a witness is generally not admissible.19
There is no dispute that appellee’s husband fell down from
Petitioner’s contention, however, loses relevance in the face of the the 14th floor of a building to the basement while he was
application of res ipsa loquitur by the CA. The effect of the doctrine working with appellant’s construction project, resulting to
is to warrant a presumption or inference that the mere fall of the his death. The construction site is within the exclusive
elevator was a result of the person having charge of the control and management of appellant. It has a safety
instrumentality was negligent. As a rule of evidence, the doctrine engineer, a project superintendent, a carpenter leadman
of res ipsa loquitur is peculiar to the law of negligence which and others who are in complete control of the situation
recognizes that prima facie negligence may be established without
97
 therein. The circumstances of any accident that would presumption of negligence arising from the application of res ipsa
occur therein are peculiarly within the knowledge of the loquitur, or to establish any defense relating to the incident.
appellant or its employees. On the other hand, the
appellee is not in a position to know what caused the Next, petitioner argues that private respondent had previously
accident. Res ipsa loquitur is a rule of necessity and it availed of the death benefits provided under the Labor Code and is,
applies where evidence is absent or not readily available, therefore, precluded from claiming from the deceased’s employer
provided the following requisites are present: (1) the damages under the Civil Code.
accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or
Article 173 of the Labor Code states:
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 Article 173. Extent of liability. – Unless otherwise provided,
action or contribution on the part of the person injured. x the liability of the State Insurance Fund under this Title
x x. 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
No worker is going to fall from the 14th floor of a building
employee or his dependents. The payment of
to the basement while performing work in a construction
compensation under this Title shall not bar the recovery of
site unless someone is negligent[;] thus, the first requisite
benefits as provided for in Section 699 of the Revised
for the application of the rule of res ipsa loquitur is
Administrative Code, Republic Act Numbered Eleven
present. As explained earlier, the construction site with all
hundred sixty-one, as amended, Republic Act Numbered
its paraphernalia and human resources that likely caused
Six hundred ten, as amended, Republic Act Numbered
the injury is under the exclusive control and management
Forty-eight hundred sixty-four as amended, and other laws
of appellant[;] thus[,] the second requisite is also present.
whose benefits are administered by the System or by
No contributory negligence was attributed to the
other agencies of the government.
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 The precursor of Article 173 of the Labor Code, Section 5 of the
presumption or inference of appellant’s negligence arises. Workmen’s Compensation Act, provided that:
x x x.24
Section 5. Exclusive right to compensation. – The rights
Petitioner does not dispute the existence of the requisites for the and remedies granted by this Act to an employee by
application of res ipsa loquitur, but argues that the presumption or reason of a personal injury entitling him to compensation
inference that it was negligent did not arise since it "proved that it shall exclude all other rights and remedies accruing to the
exercised due care to avoid the accident which befell respondent’s employee, his personal representatives, dependents or
husband." nearest of kin against the employer under the Civil Code
and other laws because of said injury x x x.
Petitioner apparently misapprehends the procedural effect of the
doctrine. As stated earlier, the defendant’s negligence is presumed Whether Section 5 of the Workmen’s Compensation Act allowed
or inferred25 when the plaintiff establishes the requisites for the recovery under said Act as well as under the Civil Code used to be
application of res ipsa loquitur. Once the plaintiff makes out a prima the subject of conflicting decisions. The Court finally settled the
facie case of all the elements, the burden then shifts to defendant to matter in Floresca vs.Philex Mining Corporation,30 which involved a
explain.26 The presumption or inference may be rebutted or cave-in resulting in the death of the employees of the Philex Mining
overcome by other evidence and, under appropriate circumstances Corporation. Alleging that the mining corporation, in violation of
disputable presumption, such as that of due care or innocence, may government rules and regulations, failed to take the required
outweigh the inference.27 It is not for the defendant to explain or precautions for the protection of the employees, the heirs of the
prove its defense to prevent the presumption or inference from deceased employees filed a complaint against Philex Mining in the
arising. Evidence by the defendant of say, due care, comes into play Court of First Instance (CFI). Upon motion of Philex Mining, the CFI
only after the circumstances for the application of the doctrine has dismissed the complaint for lack of jurisdiction. The heirs sought
been established.1âwphi1.nêt relief from this Court.

In any case, petitioner cites the sworn statement of its leadman Addressing the issue of whether the heirs had a choice of remedies,
Ferdinand Fabro executed before the police investigator as evidence majority of the Court En Banc,31 following the rule in Pacaña vs. Cebu
of its due care. According to Fabro’s sworn statement, the company Autobus Company, held in the affirmative.
enacted rules and regulations for the safety and security of its
workers. Moreover, the leadman and the bodegero inspect the chain WE now come to the query as to whether or not the
block before allowing its use. injured employee or his heirs in case of death have a right
of selection or choice of action between availing
It is ironic that petitioner relies on Fabro’s sworn statement as proof themselves of the worker’s right under the Workmen’s
of its due care but, in arguing that private respondent failed to prove Compensation Act and suing in the regular courts under
negligence on the part of petitioner’s employees, also assails the the Civil Code for higher damages (actual, moral and
same statement for being hearsay. 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
Petitioner is correct. Fabro’s sworn statement is hearsay and
limited compensation under the Workmen’s
inadmissible. Affidavits are inadmissible as evidence under the
Compensation Act and sue in addition for damages in the
hearsay rule, unless the affiant is placed on the witness stand to
regular courts.
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 In disposing of a similar issue, this Court in Pacaña vs. Cebu
that, generally, an affidavit is not prepared by the affiant himself but Autobus Company, 32 SCRA 442, ruled that an injured
by another who uses his own language in writing the affiant’s worker has a choice of either to recover from the
statements which may either be omitted or misunderstood by the employer the fixed amounts set by the Workmen’s
one writing them.29 Petitioner, therefore, cannot use said statement Compensation Act or to prosecute an ordinary civil action
as proof of its due care any more than private respondent can use it against the tortfeasor for higher damages but he cannot
to prove the cause of her husband’s death. Regrettably, petitioner pursue both courses of action simultaneously.
does not cite any other evidence to rebut the inference or [Underscoring supplied.]

98
Nevertheless, the Court allowed some of the petitioners in said case complaint against petitioner’s personnel. While stating that there
to proceed with their suit under the Civil Code despite having was no negligence attributable to the respondents in the complaint,
availed of the benefits provided under the Workmen’s the prosecutor nevertheless noted in the Memorandum that, "if at
Compensation Act. The Court reasoned: all," the "case is civil in nature." The CA thus applied the exception
in Floresca:
With regard to the other petitioners, it was alleged by
Philex in its motion to dismiss dated May 14, 1968 before x x x We do not agree that appellee has knowledge of the
the court a quo, that the heirs of the deceased employees, alleged negligence of appellant as early as November 25,
namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, 1990, the date of the police investigator’s report. The
Lorenzo Isla and Saturnino submitted notices and claims appellee merely executed her sworn statement before the
for compensation to the Regional Office No. 1 of the then police investigator concerning her personal circumstances,
Department of Labor and all of them have been paid in full her relation to the victim, and her knowledge of the
as of August 25, 1967, except Saturnino Martinez whose accident. She did not file the complaint for "Simple
heirs decided that they be paid in installments x x x. Such Negligence Resulting to Homicide" against appellant’s
allegation was admitted by herein petitioners in their employees. It was the investigator who recommended the
opposition to the motion to dismiss dated may 27, 1968 x filing of said case and his supervisor referred the same to
x x in the lower court, but they set up the defense that the the prosecutor’s office. This is a standard operating
claims were filed under the Workmen’s Compensation Act procedure for police investigators which appellee may not
before they learned of the official report of the committee have even known. This may explain why no complainant is
created to investigate the accident which established the mentioned in the preliminary statement of the public
criminal negligence and violation of law by Philex, and prosecutor in her memorandum dated February 6, 1991,
which report was forwarded by the Director of Mines to to wit: "Respondent Ferdinand Fabro x x x are being
then Executive Secretary Rafael Salas in a letter dated charged by complainant of "Simple Negligence Resulting to
October 19, 1967 only x x x. Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as
WE hold that although the other petitioners had received can be inferred from the following statement in said
the benefits under the Workmen’s Compensation Act, memorandum: "Respondents who were notified pursuant
such my not preclude them from bringing an action before to Law waived their rights to present controverting
the regular court because they became cognizant of the evidence," thus there was no reason for the public
fact that Philex has been remiss in its contractual prosecutor to summon the appellee. Hence, notice of
obligations with the deceased miners only after receiving appellant’s negligence cannot be imputed on appellee
compensation under the Act. Had petitioners been aware before she applied for death benefits under ECC or before
of said violation of government rules and regulations by she received the first payment therefrom. Her using the
Philex, and of its negligence, they would not have sought police investigation report to support her complaint filed
redress under the Workmen’s Compensation Commission on May 9, 1991 may just be an afterthought after receiving
which awarded a lesser amount for compensation. The a copy of the February 6, 1991 Memorandum of the
choice of the first remedy was based on ignorance or a Prosecutor’s Office dismissing the criminal complaint for
mistake of fact, which nullifies the choice as it was not an insufficiency of evidence, stating therein that: "The death
intelligent choice. The case should therefore be remanded of the victim is not attributable to any negligence on the
to the lower court for further proceedings. However, part of the respondents. If at all and as shown by the
should the petitioners be successful in their bid before the records this case is civil in nature." (Underscoring
lower court, the payments made under the Workmen’s supplied.) Considering the foregoing, We are more inclined
Compensation Act should be deducted from the damages to believe appellee’s allegation that she learned about
that may be decreed in their favor. [Underscoring appellant’s negligence only after she applied for and
supplied.] 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 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. The CA further held that not only was private respondent ignorant of
Abeleda.34 In the last case, the Court again recognized that a the facts, but of her rights as well:
claimant who had been paid under the Act could still sue under the
Civil Code. The Court said: x x x. Appellee [Maria Juego] testified that she has reached
only elementary school for her educational attainment;
In the Robles case, it was held that claims for damages that she did not know what damages could be recovered
sustained by workers in the course of their employment from the death of her husband; and that she did not know
could be filed only under the Workmen’s Compensation that she may also recover more from the Civil Code than
Law, to the exclusion of all further claims under other from the ECC. x x x.36
laws. In Floresca, this doctrine was abrogated in favor of
the new rule that the claimants may invoke either the Petitioner impugns the foregoing rulings. It contends that private
Workmen’s Compensation Act or the provisions of the Civil respondent "failed to allege in her complaint that her application
Code, subject to the consequence that the choice of one and receipt of benefits from the ECC were attended by ignorance or
remedy will exclude the other and that the acceptance of mistake of fact. Not being an issue submitted during the trial, the
compensation under the remedy chosen will preclude a trial court had no authority to hear or adjudicate that issue."
claim for additional benefits under the other remedy. The
exception is where a claimant who has already been paid Petitioner also claims that private respondent could not have been
under the Workmen’s Compensation Act may still sue for ignorant of the facts because as early as November 28, 1990, private
damages under the Civil Code on the basis of supervening respondent was the complainant in a criminal complaint for "Simple
facts or developments occurring after he opted for the Negligence Resulting to Homicide" against petitioner’s employees.
first remedy. (Underscoring supplied.) On February 6, 1991, two months before the filing of the action in
the lower court, Prosecutor Lorna Lee issued a resolution finding
Here, the CA held that private respondent’s case came under the that, although there was insufficient evidence against petitioner’s
exception because private respondent was unaware of petitioner’s employees, the case was "civil in nature." These purportedly show
negligence when she filed her claim for death benefits from the that prior to her receipt of death benefits from the ECC on January
State Insurance Fund. Private respondent filed the civil complaint for 2, 1991 and every month thereafter, private respondent also knew
damages after she received a copy of the police investigation report of the two choices of remedies available to her and yet she chose to
and the Prosecutor’s Memorandum dismissing the criminal claim and receive the benefits from the ECC.

99
When a party having knowledge of the facts makes an election In any event, there is no proof that private respondent knew that
between inconsistent remedies, the election is final and bars any her husband died in the elevator crash when on November 15, 1990
action, suit, or proceeding inconsistent with the elected remedy, in she accomplished her application for benefits from the ECC. The
the absence of fraud by the other party. The first act of election acts police investigation report is dated November 25, 1990, 10 days
as a bar.37 Equitable in nature, the doctrine of election of remedies is after the accomplishment of the form. Petitioner filed the
designed to mitigate possible unfairness to both parties. It rests on application in her behalf on November 27, 1990.
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 There is also no showing that private respondent knew of the
to any remedy, but to prevent a double redress for a single wrong.38 remedies available to her when the claim before the ECC was filed.
On the contrary, private respondent testified that she was not aware
The choice of a party between inconsistent remedies results in of her rights.
a waiver by election. Hence, the rule in Floresca that a claimant
cannot simultaneously pursue recovery under the Labor Code and Petitioner, though, argues that under Article 3 of the Civil Code,
prosecute an ordinary course of action under the Civil Code. The ignorance of the law excuses no one from compliance therewith. As
claimant, by his choice of one remedy, is deemed to have waived the judicial decisions applying or interpreting the laws or the
other. Constitution form part of the Philippine legal system (Article 8, Civil
Code), private respondent cannot claim ignorance of this Court’s
Waiver is the intentional relinquishment of a known right.39 ruling in Floresca allowing a choice of remedies.

[It] is an act of understanding that presupposes that a The argument has no merit. The application of Article 3 is limited to
party has knowledge of its rights, but chooses not to assert mandatory and prohibitory laws.42 This may be deduced from the
them. It must be generally shown by the party claiming a language of the provision, which, notwithstanding a person’s
waiver that the person against whom the waiver is ignorance, does not excuse his or her compliance with the laws. The
asserted had at the time knowledge, actual or rule in Floresca allowing private respondent a choice of remedies is
constructive, of the existence of the party’s rights or of all neither mandatory nor prohibitory. Accordingly, her ignorance
material facts upon which they depended. Where one thereof cannot be held against her.
lacks knowledge of a right, there is no basis upon which
waiver of it can rest. Ignorance of a material fact negates Finally, the Court modifies the affirmance of the award of damages.
waiver, and waiver cannot be established by a consent The records do not indicate the total amount private respondent
given under a mistake or misapprehension of fact. ought to receive from the ECC, although it appears from Exhibit
"K"43 that she received P3,581.85 as initial payment representing the
A person makes a knowing and intelligent waiver when accrued pension from November 1990 to March 1991. Her initial
that person knows that a right exists and has adequate monthly pension, according to the same Exhibit "K," was P596.97
knowledge upon which to make an intelligent decision. and present total monthly pension was P716.40. Whether the total
amount she will eventually receive from the ECC is less than the sum
Waiver requires a knowledge of the facts basic to the of P644,000.00 in total damages awarded by the trial court is subject
exercise of the right waived, with an awareness of its to speculation, and the case is remanded to the trial court for such
consequences. That a waiver is made knowingly and determination. Should the trial court find that its award is greater
intelligently must be illustrated on the record or by the than that of the ECC, payments already received by private
evidence.40 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.
That lack of knowledge of a fact that nullifies the election of a
remedy is the basis for the exception in Floresca.
WHEREFORE, the case is REMANDED to the Regional Trial Court of
Pasig City to determine whether the award decreed in its decision is
It is in light of the foregoing principles that we address petitioner’s
more than that of the ECC. Should the award decreed by the trial
contentions.
court be greater than that awarded by the ECC, payments already
made to private respondent pursuant to the Labor Code shall be
Waiver is a defense, and it was not incumbent upon private deducted therefrom. In all other respects, the Decision of the Court
respondent, as plaintiff, to allege in her complaint that she had of Appeals is AFFIRMED.
availed of benefits from the ECC. It is, thus, erroneous for petitioner
to burden private respondent with raising waiver as an issue. On the
SO ORDERED.
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. In Floresca, 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 a conclusion 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.

100
 1. For the life of Jasmin D. Cardaña P50,000.00;
2. For burial expenses 15,010.00;
3. For moral damages 50,000.00;
4. For attorney’s fees and litigation 10,000.00.
expenses
SO ORDERED.4

Petitioner’s motion for reconsideration was denied. Petitioner now

comes before us submitting the following issues for our resolution:

I. WHETHER OR NOT THE COURT OF APPEALS VIS-À-VIS

THE SET OF FACTS STATED IN THE CHALLENGED DECISION,
ERRED IN FINDING THE PETITIONER NEGLIGENT AND
THEREFORE LIABLE FOR DAMAGES UNDER ARTICLE 2206
OF THE CIVIL CODE AND IN ORDERING THE PETITIONER TO
PAY DAMAGES TO THE RESPONDENTS; AND

II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN

DENYING PETITIONER’S MOTION FOR RECONSIDERATION.5

G.R. No. 157906 November 2, 2006

On the other hand, respondents posit the following issue:

JOAQUINITA P. CAPILI, Petitioner,

vs. SPS. DOMINADOR CARDAÑA and ROSALITA Whether or not the Decision of the Honorable Court of Appeals,
CARDAÑA, Respondents. Twelfth Division, in CA G.R. CV. No. 54412 promulgated on October
18, 2002 … should be affirmed and respected, thus remain
undisturbed.6
DECISION
Primarily, the issue is whether petitioner is negligent and liable for
QUISUMBING, J.: the death of Jasmin Cardaña.

Before us is a petition for review assailing the Decision1 dated Petitioner asserts that she was not negligent about the disposal of
October 18, 2002 of the Court of Appeals in CA-G.R. CV. No. 54412, the tree since she had assigned her next-in-rank, Palaña, to see to its
declaring petitioner liable for negligence that resulted in the death disposal; that despite her physical inspection of the school grounds,
of Jasmin Cardaña, a school child aged 12, enrolled in Grade 6, of she did not observe any indication that the tree was already rotten
San Roque Elementary School, where petitioner is the principal. nor did any of her 15 teachers inform her that the tree was already
Likewise assailed is the Resolution2 dated March 20, 2003 denying rotten;7 and that moral damages should not be granted against her
reconsideration. since there was no fraud nor bad faith on her part.

The facts are as follows: On the other hand, respondents insist that petitioner knew that the
tree was dead and rotting, yet, she did not exercise reasonable care
On February 1, 1993, Jasmin Cardaña was walking along the and caution which an ordinary prudent person would have done in
perimeter fence of the San Roque Elementary School when a branch the same situation.
of a caimito tree located within the school premises fell on her,
causing her instantaneous death. Thus, her parents - Dominador and To begin, we have to point out that whether petitioner was
Rosalita Cardaña - filed a case for damages before the Regional Trial negligent or not is a question of fact which is generally not proper in
Court of Palo, Leyte against petitioner. a petition for review, and when this determination is supported by
substantial evidence, it becomes conclusive and binding on this
The Cardañas alleged in their complaint that even as early as Court.8 However, there is an exception, that is, when the findings of
December 15, 1992, a resident of the barangay, Eufronio Lerios, the Court of Appeals are incongruent with the findings of the lower
reported on the possible danger the tree posed to passersby. Lerios court.9 In our view, the exception finds application in the present
even pointed to the petitioner the tree that stood near the case.
principal’s office. The Cardañas averred that petitioner’s gross
negligence and lack of foresight caused the death of their daughter. The trial court gave credence to the claim of petitioner that she had
no knowledge that the tree was already dead and rotting and that
Petitioner denied the accusation and said that at that time Lerios Lerios merely informed her that he was going to buy the tree for
had only offered to buy the tree. She also denied knowing that the firewood. It ruled that petitioner exercised the degree of care and
tree was dead and rotting. To prove her point, she presented vigilance which the circumstances require and that there was an
witnesses who attested that she had brought up the offer of Lerios absence of evidence that would require her to use a higher standard
to the other teachers during a meeting on December 15, 1992 and of care more than that required by the attendant
assigned Remedios Palaña to negotiate the sale. circumstances.10 The Court of Appeals, on the other hand, ruled that
petitioner should have known of the condition of the tree by its
In a Decision3 dated February 5, 1996, the trial court dismissed the mere sighting and that no matter how hectic her schedule was, she
complaint for failure of the respondents to establish negligence on should have had the tree removed and not merely delegated the
the part of the petitioner. task to Palaña. The appellate court ruled that the dead caimito tree
was a nuisance that should have been removed soon after petitioner
had chanced upon it.11
On appeal, the Court of Appeals reversed the trial court’s decision.
The appellate court found the appellee (herein petitioner) liable for
Jasmin’s death, as follows: A negligent act is an inadvertent act; it may be merely carelessly
done from a lack of ordinary prudence and may be one which
creates a situation involving an unreasonable risk to another
Foregoing premises considered, the instant appeal is GRANTED.
because of the expectable action of the other, a third person, an
Appellee Joaquinita Capili is hereby declared liable for negligence
animal, or a force of nature. A negligent act is one from which an
resulting to the death of Jasmin D. Cardaña. She is hereby ordered to
ordinary prudent person in the actor’s position, in the same or
indemnify appellants, parents of Jasmin, the following amounts:
similar circumstances, would foresee such an appreciable risk of

101
harm to others as to cause him not to do the act or to do it in a more by other evidence and, under appropriate circumstances a
careful manner.12 disputable presumption, such as that of due care or innocence, may
outweigh the inference.16
The probability that the branches of a dead and rotting tree could
fall and harm someone is clearly a danger that is foreseeable. As the Was petitioner’s explanation as to why she failed to have the tree
school principal, petitioner was tasked to see to the maintenance of removed immediately sufficient to exculpate her?
the school grounds and safety of the children within the school and
its premises. That she was unaware of the rotten state of a tree As the school principal, petitioner was tasked to see to the
whose falling branch had caused the death of a child speaks ill of her maintenance of the school grounds and safety of the children within
discharge of the responsibility of her position. the school and its premises. That she was unaware of the rotten
state of the tree calls for an explanation on her part as to why she
In every tort case filed under Article 2176 of the Civil Code, plaintiff failed to be vigilant.
has to prove by a preponderance of evidence: (1) the damages
suffered by the plaintiff; (2) the fault or negligence of the defendant Petitioner contends she was unaware of the state of the dead and
or some other person for whose act he must respond; and (3) the rotting tree because Lerios merely offered to buy the tree and did
connection of cause and effect between the fault or negligence and not inform her of its condition. Neither did any of her teachers
the damages incurred.13 inform her that the tree was an imminent danger to anyone. She
argues that she could not see the immediate danger posed by the
The fact, however, that respondents’ daughter, Jasmin, died as a tree by its mere sighting even as she and the other teachers
result of the dead and rotting tree within the school’s premises conducted ground inspections. She further argues that, even if she
shows that the tree was indeed an obvious danger to anyone should have been aware of the danger, she exercised her duty by
passing by and calls for application of the principle of res ipsa assigning the disposition of the tree to another teacher.
loquitur.
We find petitioner’s explanation wanting. As school principal,
The doctrine of res ipsa loquitur applies where (1) the accident was petitioner is expected to oversee the safety of the school’s
of such character as to warrant an inference that it would not have premises.1âwphi1 The fact that she failed to see the immediate
happened except for the defendant’s negligence; (2) the accident danger posed by the dead and rotting tree shows she failed to
must have been caused by an agency or instrumentality within the exercise the responsibility demanded by her position.
exclusive management or control of the person charged with the
negligence complained of; and (3) the accident must not have been Moreover, even if petitioner had assigned disposal of the tree to
due to any voluntary action or contribution on the part of the another teacher, she exercises supervision over her assignee.17 The
person injured.14 record shows that more than a month had lapsed from the time
petitioner gave instruction to her assistant Palaña on December 15,
The effect of the doctrine of res ipsa loquitur is to warrant a 1992, to the time the incident occurred on February 1, 1993. Clearly,
presumption or inference that the mere falling of the branch of the she failed to check seasonably if the danger posed by the rotting
dead and rotting tree which caused the death of respondents’ tree had been removed. Thus, we cannot accept her defense of lack
daughter was a result of petitioner’s negligence, being in charge of of negligence.
the school.
Lastly, petitioner questions the award of moral damages. Moral
In the case of D.M. Consunji, Inc. v. Court of Appeals,15 this Court damages are awarded if the following elements exist in the case: (1)
held: an injury clearly sustained by the claimant; (2) a culpable act or
omission factually established; (3) a wrongful act or omission by the
…As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to defendant as the proximate cause of the injury sustained by the
the law of negligence which recognizes that prima facie negligence claimant; and (4) the award of damages predicated on any of the
may be established without direct proof and furnishes a substitute cases stated in Article 2219 of the Civil Code.18 However, the person
for specific proof of negligence. claiming moral damages must prove the existence of bad faith by
clear and convincing evidence for the law always presumes good
faith. It is not enough that one merely suffered sleepless nights,
The concept of res ipsa loquitur has been explained in this wise:
mental anguish, and serious anxiety as the result of the actuations of
the other party. Invariably, such action must be shown to have been
While negligence is not ordinarily inferred or presumed, and while willfully done in bad faith or with ill motive.19 Under the
the mere happening of an accident or injury will not generally give circumstances, we have to concede that petitioner was not
rise to an inference or presumption that it was due to negligence on motivated by bad faith or ill motive vis-à-vis respondents’ daughter’s
defendant’s part, under the doctrine of res ipsa loquitur, which death. The award of moral damages is therefore not proper.
means, literally, the thing or transaction speaks for itself, or in one
jurisdiction, that the thing or instrumentality speaks for itself, the
In line with applicable jurisprudence, we sustain the award by the
facts or circumstances accompanying an injury may be such as to
Court of Appeals of ₱50,000 as indemnity for the death of
raise a presumption, or at least permit an inference of negligence on
Jasmin,20 and ₱15,010 as reimbursement of her burial expenses.21
the part of the defendant, or some other person who is charged
with negligence.
WHEREFORE, the petition is DENIED. The Decision dated October 18,
2002 and the Resolution dated March 20, 2003, of the Court of
x x x where it is shown that the thing or instrumentality which
Appeals in CA-G.R. CV. No. 54412 are AFFIRMED with
caused the injury complained of was under the control or
MODIFICATION such that the award of moral damages is hereby
management of the defendant, and that the occurrence resulting in
deleted.
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, Costs against petitioner. SO ORDERED.
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.

The procedural effect of the doctrine of res ipsa loquitur is that

petitioner’s negligence is presumed once respondents established
the requisites for the doctrine to apply. Once respondents made out
a prima facie case of all requisites, the burden shifts to petitioner to
explain. The presumption or inference may be rebutted or overcome
102
 earning capacity from P778,752.00 to P214,156.80; and the interest
on the hospital and medical bills, from 3% per month to 12% per
annum from 5 September 1988 until fully paid.

G.R. No. 132266 December 21, 1999 Upon CASTILEX's motion for reconsideration, the Court of Appeals
modified its decision by (1) reducing the award of moral damages
from P50,000 to P30,000 in view of the deceased's contributory
CASTILEX INDUSTRIAL CORPORATION, petitioner,
negligence; (b) deleting the award of attorney's fees for lack of
vs.
evidence; and (c) reducing the interest on hospital and medical bills
VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ, and CEBU
to 6% per annum from 5 September 1988 until fully paid.4
DOCTORS' HOSPITAL, INC., respondents.

Hence, CASTILEX filed the instant petition contending that the Court
DAVIDE, JR., C.J.:
of Appeals erred in (1) applying to the case the fifth paragraph of
Article 2180 of the Civil Code, instead of the fourth paragraph
The pivotal issue in this petition is whether an employer may be held thereof; (2) that as a managerial employee, ABAD was deemed to
vicariously liable for the death resulting from the negligent have been always acting within the scope of his assigned task even
operation by a managerial employee of a company-issued vehicle. outside office hours because he was using a vehicle issued to him by
petitioner; and (3) ruling that petitioner had the burden to prove
The antecedents, as succinctly summarized by the Court of Appeals, that the employee was not acting within the scope of his assigned
are as follows: task.

On 28 August 1988, at around 1:30 to 2:00 in the morning, Jose Benjamin ABAD merely adopted the statement of facts of
Romeo So Vasquez, was driving a Honda motorcycle petitioner which holds fast on the theory of negligence on the part
around Fuente Osmeña Rotunda. He was traveling of the deceased.
counter-clockwise, (the normal flow of traffic in a rotunda)
but without any protective helmet or goggles. He was also On the other hand, respondents Spouses Vasquez argue that their
only carrying a Student's Permit to Drive at the time. Upon son's death was caused by the negligence of petitioner's employee
the other hand, Benjamin Abad [was a] manager of who was driving a vehicle issued by petitioner and who was on his
Appellant Castilex Industrial Corporation, registered owner way home from overtime work for petitioner; and that petitioner is
[of] a Toyota Hi-Lux Pick-up with plate no. GBW-794. On thus liable for the resulting injury and subsequent death of their son
the same date and time, Abad drove the said company car on the basis of the fifth paragraph of Article 2180. Even if the fourth
out of a parking lot but instead of going around the paragraph of Article 2180 were applied, petitioner cannot escape
Osmeña rotunda he made a short cut against [the] flow of liability therefor. They moreover argue that the Court of Appeals
the traffic in proceeding to his route to General Maxilom erred in reducing the amount of compensatory damages when the
St. or to Belvic St. award made by the trial court was borne both by evidence adduced
during the trial regarding deceased's wages and by jurisprudence on
In the process, the motorcycle of Vasquez and the pick-up life expectancy. Moreover, they point out that the petition is
of Abad collided with each other causing severe injuries to procedurally not acceptable on the following grounds: (1) lack of an
the former. Abad stopped his vehicle and brought Vasquez explanation for serving the petition upon the Court of Appeals by
to the Southern Islands Hospital and later to the Cebu registered mail, as required under Section 11, Rule 13 of the Rules of
Doctor's Hospital. Civil Procedure; and (2) lack of a statement of the dates of the
expiration of the original reglementary period and of the filing of the
On September 5, 1988, Vasquez died at the Cebu Doctor's motion for extension of time to file a petition for review.
Hospital. It was there that Abad signed an
acknowledgment of Responsible Party (Exhibit K) wherein For its part, respondent Cebu Doctor's Hospital maintains that
he agreed to pay whatever hospital bills, professional fees petitioner CASTILEX is indeed vicariously liable for the injuries and
and other incidental charges Vasquez may incur. subsequent death of Romeo Vasquez caused by ABAD, who was on
his way home from taking snacks after doing overtime work for
After the police authorities had conducted the petitioner. Although the incident occurred when ABAD was not
investigation of the accident, a Criminal Case was filed working anymore "the inescapable fact remains that said employee
against Abad but which was subsequently dismissed for would not have been situated at such time and place had he not
failure to prosecute. So, the present action for damages been required by petitioner to do overtime work." Moreover, since
was commenced by Vicente Vasquez, Jr. and Luisa So petitioner adopted the evidence adduced by ABAD, it cannot, as the
Vasquez, parents of the deceased Romeo So Vasquez, latter's employer, inveigle itself from the ambit of liability, and is
against Jose Benjamin Abad and Castilex Industrial thus estopped by the records of the case, which it failed to refute.
Corporation. In the same action, Cebu Doctor's Hospital
intervened to collect unpaid balance for the medical We shall first address the issue raised by the private respondents
expense given to Romeo So Vasquez.1 regarding some alleged procedural lapses in the petition.

The trial court ruled in favor of private respondents Vicente and Private respondent's contention of petitioner's violation of Section
Luisa Vasquez and ordered Jose Benjamin Abad (hereafter ABAD) 11 of Rule 13 and Section 4 of Rule 45 of the 1997 Rules of Civil
and petitioner Castilex Industrial Corporation (hereafter CASTILEX) Procedure holds no water.
to pay jointly and solidarily (1) Spouses Vasquez, the amounts of
P8,000.00 for burial expenses; P50,000.00 as moral damages; Sec. 11 of Rule 13 provides:
P10,000.00 as attorney's fees; and P778,752.00 for loss of earning
capacity; and (2) Cebu Doctor's Hospital, the sum of P50,927.83 for
Sec. 11. Priorities in modes of services and filing. —
unpaid medical and hospital bills at 3% monthly interest from 27 July
Whenever practicable, the service and filing of pleadings
1989 until fully paid, plus the costs of litigation.2
and other papers shall be done personally. Except with
respect to papers emanating from the court, a resort to
CASTILEX and ABAD separately appealed the decision. other modes must be accompanied by a written
explanation why the service or filing was not done
In its decision3 of 21 May 1997, the Court of Appeals affirmed the personally. A violation of this Rule may be cause to
ruling of the trial court holding ABAD and CASTILEX liable but held consider the paper as not filed.
that the liability of the latter is "only vicarious and not solidary" with
the former. It reduced the award of damages representing loss of

103
The explanation why service of a copy of the petition upon the Court It is undisputed that ABAD was a Production Manager of petitioner
of Appeals was done by registered mail is found on Page 28 of the CASTILEX at the time of the tort occurrence. As to whether he was
petition. Thus, there has been compliance with the aforequoted acting within the scope of his assigned task is a question of fact,
provision. which the court a quo and the Court of Appeals resolved in the
affirmative.
As regards the allegation of violation of the material data rule under
Section 4 of Rule 45, the same is unfounded. The material dates Well-entrenched in our jurisprudence is the rule that the factual
required to be stated in the petition are the following: (1) the date findings of the Court of Appeals are entitled to great respect, and
of receipt of the judgment or final order or resolution subject of the even finality at times. This rule is, however, subject to exceptions
petition; (2) the date of filing of a motion for new trial or such as when the conclusion is grounded on speculations, surmises,
reconsideration, if any; and (3) the date of receipt of the notice of or conjectures.9 Such exception obtain in the present case to
the denial of the motion. Contrary to private respondent's claim, the warrant review by this Court of the finding of the Court of Appeals
petition need not indicate the dates of the expiration of the original that since ABAD was driving petitioner's vehicle he was acting within
reglementary period and the filing of a motion for extension of time the scope of his duties as a manager.
to file the petition. At any rate, aside from the material dates
required under Section 4 of Rule 45, petitioner CASTILEX also stated Before we pass upon the issue of whether ABAD was performing
in the first page of the petition the date it filed the motion for acts within the range of his employment, we shall first take up the
extension of time to file the petition. other reason invoked by the Court of Appeals in holding petitioner
CASTILEX vicariously liable for ABAD's negligence, i.e., that the
Now on the merits of the case. petitioner did not present evidence that ABAD was not acting within
the scope of his assigned tasks at the time of the motor vehicle
The negligence of ABAD is not an issue at this instance. Petitioner mishap. Contrary to the ruling of the Court of Appeals, it was not
CASTILEX presumes said negligence but claims that it is not incumbent upon the petitioner to prove the same. It was enough for
vicariously liable for the injuries and subsequent death caused by petitioner CASTILEX to deny that ABAD was acting within the scope
ABAD. of his duties; petitioner was not under obligation to prove this
negative averment. Ei incumbit probatio qui dicit, non qui negat (He
who asserts, not he who denies, must prove). The Court has
Petitioner contends that the fifth paragraph of Article 2180 of the
consistently applied the ancient rule that if the plaintiff, upon whom
Civil Code should only apply to instances where the employer is not
rests the burden of proving his cause of action, fails to show in a
engaged in business or industry. Since it is engaged in the business
satisfactory manner facts which he bases his claim, the defendant is
of manufacturing and selling furniture it is therefore not covered by
under no obligation to prove his exception or defense. 10
said provision. Instead, the fourth paragraph should apply.

Now on the issue of whether the private respondents have

Petitioner's interpretation of the fifth paragraph is not accurate. The
sufficiently established that ABAD was acting within the scope of his
phrase "even though the former are not engaged in any business or
assigned tasks.
industry" found in the fifth paragraph should be interpreted to mean
that it is not necessary for the employer to be engaged in any
business or industry to be liable for the negligence of his employee ABAD, who was presented as a hostile witness, testified that at the
who is acting within the scope of his assigned task.5 time of the incident, he was driving a company-issued vehicle,
registered under the name of petitioner. He was then leaving the
restaurant where he had some snacks and had a chat with his
A distinction must be made between the two provisions to
friends after having done overtime work for the petitioner.
determine what is applicable. Both provisions apply to employers:
the fourth paragraph, to owners and managers of an establishment
or enterprise; and the fifth paragraph, to employers in general, No absolutely hard and fast rule can be stated which will furnish the
whether or not engaged in any business or industry. The fourth complete answer to the problem of whether at a given moment, an
paragraph covers negligent acts of employees committed either in employee is engaged in his employer's business in the operation of a
the service of the branches or on the occasion of their functions, motor vehicle, so as to fix liability upon the employer because of the
while the fifth paragraph encompasses negligent acts of employees employee's action or inaction; but rather, the result varies with each
acting within the scope of their assigned task. The latter is an state of facts. 11
expansion of the former in both employer coverage and acts
included. Negligent acts of employees, whether or not the employer In Filamer Christian Institute v. Intermediate Appellant Court, 12 this
is engaged in a business or industry, are covered so long as they Court had the occasion to hold that acts done within the scope of
were acting within the scope of their assigned task, even though the employee's assigned tasks includes "any act done by an
committed neither in the service of the branches nor on the employee in furtherance of the interests of the employer or for the
occasion of their functions. For, admittedly, employees oftentimes account of the employer at the time of the infliction of the injury or
wear different hats. They perform functions which are beyond their damages."
office, title or designation but which, nevertheless, are still within
the call of duty. The court a quo and the Court of Appeals were one in holding that
the driving by a manager of a company-issued vehicle is within the
This court has applied the fifth paragraph to cases where the scope of his assigned tasks regardless of the time and circumstances.
employer was engaged in a business or industry such as truck
operators6 and banks.7 The Court of Appeals cannot, therefore, be We do not agree. The mere fact that ABAD was using a service
faulted in applying the said paragraph of Article 2180 of the Civil vehicle at the time of the injurious incident is not of itself sufficient
Code to this case. to charge petitioner with liability for the negligent operation of said
vehicle unless it appears that he was operating the vehicle within
Under the fifth paragraph of Article 2180, whether or not engaged in the course or scope of his employment.
any business or industry, an employer is liable for the torts
committed by employees within the scope of his assigned tasks. But The following are principles in American Jurisprudence on the
it is necessary to establish the employer-employee relationship; employer's liability for the injuries inflicted by the negligence of an
once this is done, the plaintiff must show, to hold the employer employee in the use of an employer's motor vehicle:
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
I. Operation of Employer's Motor Vehicle in Going to or
the employer may find it necessary to interpose the defense of due
from Meals
diligence in the selection and supervision of the employee. 8

It has been held that an employee who uses his employer's vehicle
in going from his work to a place where he intends to eat or in
104
returning to work from a meal is not ordinarily acting within the incident in question occurred. That same witness for the private
scope of his employment in the absence of evidence of some special respondents testified that at the time of the vehicular accident,
business benefit to the employer. Evidence that by using the ABAD was with a woman in his car, who then shouted: "Daddy,
employer's vehicle to go to and from meals, an employee is enabled Daddy!" 19 This woman could not have been ABAD's daughter, for
to reduce his time-off and so devote more time to the performance ABAD was only 29 years old at the time.
of his duties supports the finding that an employee is acting within
the scope of his employment while so driving the vehicle. 13 To the mind of this Court, ABAD was engaged in affairs of his own or
was carrying out a personal purpose not in line with his duties at the
II. Operation of Employer's Vehicle in Going to or from time he figured in a vehicular accident. It was then about 2:00 a.m.
Work of 28 August 1988, way beyond the normal working hours. ABAD's
working day had ended; his overtime work had already been
In the same vein, traveling to and from the place of work is completed. His being at a place which, as petitioner put it, was
ordinarily a personal problem or concern of the employee, and not a known as a "haven for prostitutes, pimps, and drug pushers and
part of his services to his employer. Hence, in the absence of some addicts," had no connection to petitioner's business; neither had it
special benefit to the employer other than the mere performance of any relation to his duties as a manager. Rather, using his service
the services available at the place where he is needed, the employee vehicle even for personal purposes was a form of a fringe benefit or
is not acting within the scope of his employment even though he one of the perks attached to his position.
uses his employer's motor vehicle. 14
Since there is paucity of evidence that ABAD was acting within the
The employer may, however, be liable where he derives some scope of the functions entrusted to him, petitioner CASTILEX had no
special benefit from having the employee drive home in the duty to show that it exercised the diligence of a good father of a
employer's vehicle as when the employer benefits from having the family in providing ABAD with a service vehicle. Thus, justice and
employee at work earlier and, presumably, spending more time at equity require that petitioner be relieved of vicarious liability for the
his actual duties. Where the employee's duties require him to consequences of the negligence of ABAD in driving its vehicle. 20
circulate in a general area with no fixed place or hours of work, or to
go to and from his home to various outside places of work, and his WHEREFORE, the petition is GRANTED, and the appealed decision
employer furnishes him with a vehicle to use in his work, the courts and resolution of the Court of Appeals is AFFIRMED with the
have frequently applied what has been called the "special errand" or modification that petitioner Castilex Industrial Corporation be
"roving commission" rule, under which it can be found that the absolved of any liability for the damages caused by its employee,
employee continues in the service of his employer until he actually Jose Benjamin Abad.
reaches home. However, even if the employee be deemed to be
acting within the scope of his employment in going to or from work SO ORDERED.
in his employer's vehicle, the employer is not liable for his
negligence where at the time of the accident, the employee has left
the direct route to his work or back home and is pursuing a personal
errand of his own.

III. Use of Employer's Vehicle Outside Regular Working

Hours

An employer who loans his motor vehicle to an employee for the

latter's personal use outside of regular working hours is generally
not liable for the employee's negligent operation of the vehicle
during the period of permissive use, even where the employer
contemplates that a regularly assigned motor vehicle will be used by
the employee for personal as well as business purposes and there is
some incidental benefit to the employer. Even where the
employee's personal purpose in using the vehicle has been
accomplished and he has started the return trip to his house where
the vehicle is normally kept, it has been held that he has not
resumed his employment, and the employer is not liable for the
employee's negligent operation of the vehicle during the return
trip. 15

The foregoing principles and jurisprudence are applicable in our

jurisdiction albeit based on the doctrine of respondent superior, not
on the principle of bonus pater familias as in ours. Whether the fault
or negligence of the employee is conclusive on his employer as in
American law or jurisprudence, or merely gives rise to the
presumption juris tantum of negligence on the part of the employer
as in ours, it is indispensable that the employee was acting in his
employer's business or within the scope of his assigned task. 16

In the case at bar, it is undisputed that ABAD did some overtime

work at the petitioner's office, which was located in Cabangcalan,
Mandaue City. Thereafter, he went to Goldie's Restaurant in Fuente
Osmeña, Cebu City, which is about seven kilometers away from
petitioner's place of business. 17 A witness for the private
respondents, a sidewalk vendor, testified that Fuente Osmeña is a
"lively place" even at dawn because Goldie's Restaurant and Back
Street were still open and people were drinking thereat. Moreover,
prostitutes, pimps, and drug addicts littered the place. 18

At the Goldie's Restaurant, ABAD took some snacks and had a chat
with friends. It was when ABAD was leaving the restaurant that the

105
 It appears from the evidence that on the night of the 10th of
February, 1914, between 11 and 12 o'clock, the accused, Mariano
Crame, a duly-licensed chauffeur, was driving an automobile, in
which, at the time, were Thomas M. Bill, a sailor belonging to the
United States Navy, and Indalecio Rabonsa, an apprentice to the
accused who, at the time of the accident, was sitting at his side on
the front seat. The automobile was passing from Santa Ana to
Manila and, at the time of the accident, was going in a northwesterly
direction. At the same time there were two automobile on the way
from Manila to Santa Ana, one belonging to Mr. Stuart, driven by
himself, and the other a machine without passengers driven by a
chauffeur by the name of Miranda. The automobile driven by Stuart
was a modern Cadillac with high-powered electric lights. The
accused states that this fact added to the other fact that he was
near the Damas Bridge at the time, induced him to reduce the speed
of the automobile at that point so that he was, at the time of the
accident, going only about 10 miles an hour. He asserts that he
suddenly saw the form of a man in front of his automobile and that,
on seeing him, he altered the course of the machine as much as
possible in order to avoid a collision; but that he was unable to do
so, the right side of the machine hitting the man and knocking him
to the ground. He asserted that at the time it struck the man, the
machine was almost at a standstill, it coming to a complete stop
within about 6 feet of where the injured man lay.

Crame, Rabonsa, and Bill placed the injuries man in the automobile
and carried him to the hospital. Afterwards they went to the police
station at Paco and gave an account of the accident. Immediately
thereafter Crame also went to the office of the superintendent of
automobiles of the Bureau of Public Works and reported the
accident.

Relative to the injuries resulting to Coombs from the accident, it

appears that he received a heavy blow in the lower part of the back
of the head which caused ecchymosis and coagulation of blood. As a
result of the blow he was rendered unconscious and has since
G.R. No. L-10181 March 2, 1915 remained in state of great mental debility, with severe pains in the
head, almost complete loss of memory, being unable to remember
THE UNITED STATES, plaintiff-appellee, anything that occurred during the accident and, it times forgetting
vs. MARIANO CRAME, defendant-appellant. the names and countenances of his most continual attendance. He is
described by the physician who examined and treated him as an
Alfredo Chicote for appellant. incurable and hopeless imbecile.
Office of the Solicitor-General for appellee.
The learned trial court convicted the accused of the crime of
MORELAND, J.: producing serious physical injuries by imprudencia temeraria, setting
forth as the grounds of the conviction the following reasons:

This is an appeal from a judgment of the Court of First Instance of

Manila convicting the accused of the crime of serious physical First, in that [before the occurrence] the accused, having
injuries through reckless negligence. seen the coldier Coombs crossing the street at a certain
distance in front of the automobile, did not reduce the
speed of the automobile sufficiently, nor attempt to stop
The information under which he was tried and convicted is as the machinery entirely, if that was necessary, to avoid an
follows: accident. Second, in that it does not appear that the
accused sounded his horn or whistle or used his voice to
That on or about the 10th day of February, 1914, in the call the attention of the person who was crossing the
city of Manila, Philippine Islands, the said Mariano Crame, street or notify him that he should stop and avoid being
being then and there the chauffeur of a motor vehicle, did struck by the automobile. Third and last, in that the
then and there unlawfully, with reckless imprudence and accused was driving in the center, or little to the right of
in violation of the regulations, conduct and drive the said the center of the street instead of on the left side thereof:
motor vehicle along Calle Herran in said city without using
reasonable care and diligence to prevent injury to persons Discussing these point the court said:
and property and without paying any attention to the
pedestrians occupying and crossing said street, thus
colliding with, running over, and by his neglect and With reference to the first ground of negligence, the
imprudence in the management and lack of control accused alleges that he was unable to stop his machine
thereof, causing the said automobile guided and suddenly; but to this it may be answered that if he had
conducted by the said accused as aforesaid, to knock begun to stop the machine the first moment that he saw
down, drag, and run over the body of one George B. the soldier the accident would undoubtedly have been
Coombs, a private in the United States Army, who was avoided. . . . What the court desires to say is that with a
then and there occupying and crossing the said Calle speed of only 12 to 20 mile an hour, if the accused had
Herran, thereby causing injuries, wounds, and bruises begun to reduce speed in time, there is no doubt whatever
upon the person of the said George B. Coombs, which said that the accident would have been avoided and he would
injuries, wounds, and bruises have deranged the mental have been able easily to stop his machine in time.
faculties of the said George B. Coombs and have
incapacitated him, the said George B. Coombs, from Relative to the second ground of negligence, or the failure,
further performance of his duties as a soldier of the said in order to prevent the injury, to sound the horn and
United States Army. arrest the attention of the soldier who was crossing the
106
 street, there is nowhere in the case any proof or even an to him is strong evidence of inattention to duty. The street at the
allegation in front of the accused. He testified as a witness place where the accident occurred is wide and unobstructed. There
in his own behalf, but he never mentioned having sounded is no building on either side of the street. There is no place from
the horn, nor did he give any reason why he did not do so. which a person desiring to cross the street can dart out so suddenly
and unexpectedly as to give a chauffeur no opportunity to protect
In regard to the third ground of negligence, the accused him. The street at the point where the accident occurred was well
and his witnesses sought to establish the fact that, at the lighted by electric light placed on both sides of the street. Besides, it
place where the accident occurred, the automobile could is in close proximity to McKinley Junction and there are a number of
not pass along the left side of the street because the electric lights in and about the waiting station located at that point.
street-car rails are upon that side, and if he had attempted Under such circumstance there is no reason why the accused did not
to pass upon the left side of the rails the automobile see that soldier long before he had reached the position in the street
would have been thrown into the ditch, as the street upon where he was struck down. It is claimed by the accused himself that
that side of the street-car tracks is very uneven and as a the soldier was near the center of the street when the collision
result the chauffeur and his passenger would have been occurred. In that event he must have walked in plain sight of the
exposed to a greater danger than the one that they tried oncoming machine for many feet before he arrived at the place
to avoid. The court nevertheless, is of the opinion that this where he was struck. He could not have risen out of the ground nor
claim is not sustainable in view of the fact that, at the could he have darted suddenly into the street from a side street or
place where the accident occurred, as has already been door. He was walking in an open, level, and thoroughly lighted street
said, there are two street-car tracks. One of those track, it for many feet before he was hit by the automobile; and the fact that
is true, is very close to the extreme left side of the street, the accused, under such circumstances, did not see him is strong
but the other is located about the center of the street. The evidence that he was negligent.
accused should not have been required to drive his
automobile upon the left said of the farther track; but it is The accused intimates in his testimony that a carromata was
evident that he could have passed between this track and approaching him just before the accident occurred and that it
the track in the center of the street. If the accident had obscured his vision to such an extent that he did not see that soldier
occurred under such circumstances the court would have until the very moment of meeting the carromata. This story is not
said that it was an unavoidable accident. But as the corroborated by any other witness in the case. No one else speaks of
collision occurred outside of the tack in the center of the the presence there of a carromata and no one offers this as a person
street and on the right hand side of the street, the court why the soldier was not seen in time to avoid the accident.
believes that the accused is the cause of said accident. Moreover, if the soldier were crossing the street the carromata
would have obscured him for a moment only and there would have
The court, in company with the prosecuting attorney, the been abundant time to observe him before he reached the
attorney of the accused and Mariano Crame himself, carromata and after he had passed it. Besides, it is the duty of
examined the place where the accident occurred and, automobile drivers in meeting a moving vehicle on the public streets
from a careful examination of the place, compared with and highways to use due care and diligence to see to it that person
the testimony of the seaman Bill and the witness Stuart, who may be crossing behind the moving vehicle are not run down by
the Court is convinced that the place where the soldier their automobiles. There is nothing in this story of the accused
was hit is not the place indicated by the accused — that is, which, if true, relieves from the charge of negligence under the
between the Damas Bridge and the McKinley Junction, just other facts and circumstances disclosed by the evidence. It is to be
opposite a wooden post, but at the place marked in the noted, also that counsel for the accused lays no stress on this
plan Exhibit A by the witness Stuart. portion of his story and does not make it the basis of an argument in
his behalf.
We are satisfied from an examination of the record that the
conclusions of the trial court are more than sustained. The accused As we have said, the testimony and the exhibit show that the
did not see the soldier whom he ran down until it was too late, accident occurred at or near the McKinley Junction, where there is a
although the street at that point was brilliantly lighted; he did not waiting station, a kiosko, and a hydrant, where many persons
sound his horn or give notice of his approach in any other manner; habitually wait to transfer and where, as a matter of fact, even up to
he did not apply the brake or make any effort whatever to stop; he midnight, many persons stroll about waiting for cars. The defendant
was traveling on the wrong side of the street at the time of the was aware of these facts. Moreover, he testified himself that the
collision. street at that place was not level, that the rails of the street-car
track made it difficult for automobiles to cross or pass over them
and that keeping to the extreme left-hand side of the street would
In defense of the accused counsel says:
endanger the safety of the automobile and the passengers. All of
these are facts which require care and diligence on the part of an
At what distance did the accused see the soldier? From the automobile driver; and such a place should be approached
testimony of the accused and the witness Rabonsa, which guardedly, with the machine under control and with ability to stop
is all the proof there is in the record in this respect, it is with reasonable quickness.
inferred that neither the chauffeur nor his companion saw
the soldier at a sufficient distance to permit them to lose
It appears clearly established by the evidence that the accused was
time in useless or at least doubtful maneuvers; Rabonsa
driving on the right-hand side of the street when the accident
says that he saw the soldier first at the very moment of
happened. According to the law of the road and the custom of the
the accident; Stuart saw him only as he was falling to the
country he should have been on the left-hand side of the street.
ground; and the accused says that the soldier appeared
According to the evidence there was abundant room for him to drive
suddenly in front of the machine and that he, accused, in
upon what may properly be called the left-hand side of the street
the face of imminent danger of a collision charged the
and still be free from danger or risk. Instead of that he chose to take
direction of the automobile in order not to have the center
what appears from the evidence to have been almost the extreme
of the machine strike the soldier, but that he was unable
right-hand side of the street. Thomas M. Bill, who was a passenger in
to avoid hitting him with the rear part of the machine,
the automobile which ran down the soldier, testified that the
thereby party turning him and making him fall to the
automobile at the time of the accident was traveling on the right-
ground; that thereupon the accused, in order to prevent
hand side of the street. A. R. Stuart, who was driving an automobile
the rear wheel from striking the soldier, again changed the
approaching the place of the accident from the opposite direction,
direction of the machine, thereby avoiding by these two
testified that the victim was struck at the point marked "A" on the
maneuvers the passage of the machine over the body of
plan introduced in evidence and that the automobile was located at
the soldier.
the point marked "B", a point indisputably on the right-hand side of
the street; that the automobile, when it stopped after the collision,
This argument is, in our judgment, not a strong one. The fact that was not standing parallel with the street but at an angle with the
the accused did not see the soldier until the machine was very close center line of the streets, having turned toward the left-hand side of
107
the street after it had continued upon what was to him the left-hand stopped almost instantly. If, therefore, the accused was going at the
side of the street, he would have run over the body of the soldier. rate of 10 miles an hour only and saw the soldiers 20 feet ahead of
The testimony showing that the accused was driving on the right- him, he could, without difficulty, have stopped the automobile and
hand side of the street is corroborated by the fact that the witness avoided the accident. As a necessary consequence, the accused was
Rabonsa, who testified on the trial that the accused was driving on either driving at a rate of speed much higher than that stated or else
the left-hand side of the street, first declared, in his statement to the he was negligent in not stopping his car. Furthermore, if he did not
prosecuting attorney, that, at the time of the accident, the see that soldier until too late to stop, the burden is on him to show
automobile was being driven on the right-hand side of the street. why he did not. There is something wrong when a chauffeur runs
over a man who is in plain view of the automobile for a long distance
While it is true that the law does not draw an inference of before the point of the accident is reached. No negligence on the
negligence from the mere showing that there was a collision part of the injured person has shown. Whichever way the case is
between a man and an automobile on a public street but that looked at, whether from the viewpoint of the failure to see the
negligence must be proved, nevertheless, we believe it to be the soldier in time to avoid the accident or failure to stop or give
rule that testimony that plaintiff, while driving on the right-hand warning by horn or whistle, it is clear that the learned trial court was
side of a wide road, was overtaken by an automobile which struck right when it held that the accused was guilty of negligence.
the hind wheel of his wagon, establishes a case of negligence.
(Salminen vs. Ross, 185 Fed., 997.) And a bicyclist has the burden of There is no competent evidence to show that the soldier was drunk
disproving his negligence when he rides up behind another who is at the time of the accident; but, even if he was drunk, it is of little
walking where he has a right to walk and, without giving any consequence in the decision of this case, it not having been shown
warning strikes him with his vehicle. (Myers vs. hinds, 110 Mich ., that such drunkenness contributed to the accident. Whatever his
300.) And we have held in the case of Cahpman vs. Underwood (27 condition he could easily have been seen by the automobile driver if
Phil., Rep., 374), that where, in the an action to recover damages for he had been vigilant, as he should have been, in passing over the
having been run down by defendant's automobile, it appeared that streets of a city and especially in passing a place where many used
the automobile, at the time the injury was produced, was being by people on foot. It is not shown that the soldier's drunkenness, if
driven on the wrong side of the street, the burden of proof was on he was in that state, any degree contributed to the accident or that
defendant to establish that the accident occurred through other the accident would have been avoided if he had been sober. We
causes than his negligence. have held in the case of Wright vs. Manila Electric Railroad and Light
Co. (28 Phil., Rep., 122):
There is no evidence in the case which shows negligence on the part
of the injured soldier. The mere fact that he was run down by an Mere intoxication is not negligence, nor does the mere
automobile does not signify that he was negligent. At the time he fact of intoxication establish a want of ordinary care. It is
was struck he was, speaking from the direction in which the accused but a circumstance to be considered with the other
was driving the automobile at the time, on the right-hand side of the evidence tending to prove negligence. It is the general rule
street where he had a right to be and where the law fully protested that it is immaterial whether a man is drunk or if no want
him from vehicles traveling in the direction in which tested him from of ordinary care or prudence can be imputed to him, and
vehicles traveling in the direction in which the accused was driving no greater degree of care is required to be exercised by an
at the time of the injury. The rule which requires travelers to look intoxicated man for his own protection than by a sober
out for trains at railroad crossings by stopping, looking and listening one. If one's conduct is characterized by a proper degree
before they pass over the tracks does not fix the measure of care of care and prudence, it is immaterial whether he is drunk
which a pedestrian attempting to cross a street must use in looking or sober. (Ward vs. Chicago etc. Ry. Co., 85 Wios., 601;
out for automobiles. Negligence and contributory negligence are Houston and T.C. Ry. Ry. Co. vs. Reason, 61 Tex., 613;
matters to be proved, and the burden is on the one alleging injury Alger vs. Lowell, 3 Allen, 402; Central R. and Bkg. Co. vs.
from negligence to establish it and upon the other alleging immunity Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. Co., 115
because of contributory negligence to establish it, unless soldier Mass., 239; Meyer vs. Pacific R.R. Co., 40 Mo., 151;
cannot be held to have been negligent except upon evidence Chicago and N.W. Ry. Co. vs. Drake, 33 III. App., 114.)
establishing that fact. The beggar on his crutches has the same right
to the use of the streets of the city as has the man in his automobile. The judgment appealed from is affirmed, with costs against the
Each is bound to the exercise of ordinary care for his own safety and appellant. So ordered.
the prevention of injury to others, in the use thereof. (Millsaps vs.
Brogdon, 32 L.R.A. (N.S.), 1177.) This is especially true when we take
Arellano, C.J., Torres and Johnson, JJ., concur.
into consideration the assertion of the accused that, by reason of
the position of the street-car tracks, he was unable to take the left-
hand side of the street, which is the side which the law requires him Separate Opinions
to take, but that it was necessary for him to pass in the middle of the
street or a little to the right of the middle in other to make a safe CARSON, J., dissenting:
passage for the automobile and its passengers. We have held in the
case of Chapman vs. Underwood (27 Phil., Rep., 374), a case in I dissent. The facts clearly disclosed by the record as I read it, are
which the defendant's chauffeur was driving on the wrong side of that at 11 o'clock at night a drunken soldier suddenly and
the street at the time accident, which was the basis of the action, unexpectedly lurched, stumbled, or stepped out into the middle of
occurred, that 'defendant's driver was guilty of negligence in running the road in front of an automobile driven by the defendant, and was
upon and over the plaintiff. He was passing an oncoming car upon unavoidably struck by the right side of the machine and seriously
the wrong side. The plaintiff, in coming out to board the car, was not injured; that just prior to the accident, the defendant was running
obliged, for his own protection, to observe whether a car was his machine along the road from Santa Ana to Manila, at a
coming upon him from his left hand. He had only to guard against reasonable rate of speed, with his car under proper control; and that
those coming from the right. he knew that, according to the law of when the drunken soldier suddenly appeared in the center of the
the road, no automobile or other vehicle coming from his left hand street, the defendant did everything which could reasonably be
should pass upon his side of the car. He needed only to watch for expected of him in an effort to avoid an accident.
cars coming from his right, as they were the only ones under the law
permitted to pass upon that side of the street car."
It must be remembered that this is a criminal prosecution in which
the accused has been sentenced by the court below to a term of
We regard it as clear from the record that the accused was driving imprisonment on a charge of criminal negligence, and that in this as
much faster than he claims he was or else he was negligent in not in all other criminal cases the burden rested upon the prosecution to
watching the street for foot passengers, or in the handing of hid establish the guilt of the accused by affirmative proof and beyond a
automobile. It is a matter of common knowledge that an automobile reasonable doubt. It is not a question of determining, by a
being driven at 10 miles an hour can be stopped if, necessity preponderance of the evidence, the civil liability of the defendant,
requires it, within 10 or 15 feet at the most. That rate of speed is and yet it seems to me that this court and the court below have
extremely low for an automobile and , with such a sped, it can be
108
construed all the evidence so as to give the benefit of any possible As to the finding of this court that the accused was driving faster
doubt which might rise therefrom, in favor of the prosecution and than appears from the undisputed testimony of all the witnesses, or
against the accused. that he was recklessly negligent of the safety of the injured man,
based, not on may testimony in the record, but on the mere fact
Three witness who approached the injured man just after the that his machine actually struck the soldier, I can only say, in the first
accident testified that he smelled of liquor, and a police officer who place, that I doubt whether common experience sustains, beyond a
came up just before he was put in the ambulance which was called reasonable doubt, a holding that an automobile must have been
to take him to the hospital reported and testified that at that time traveling at mere than from 10 to 20 miles an hour if the driver
the man still smelled strongly of liquor. could not have stopped his machine in time to avoid running into an
intoxicated man who stepped suddenly into the street in front of
him; and the second place, I venture to doubt that there is any
There is not a scintilla of evidence in the record to put in doubt the
ground upon which to base a holding in a criminal case, that the
testimony of these witnesses, and yet the court denies to the
driver under such circumstances is criminally liable if, suddenly
accused the reasonable presumption of innocence in his favor,
confronted by this sudden emergency, and using his best judgment,
which rises out of the probability that the accident was due to the
he attempts merely to slow down and run around the pedestrian
careless and negligent conduct of this man, more or less under the
rather than devote all his attention to an attempt to come to a dead
influence of liquor, rather than to any negligence or misconduct on
stop.
the part of the chauffeur.

There is nothing in the record, as I read it (other than mere

As may be seen from the carefully prepared opinion of the trial
conjecture and imperfectly supported inferences from presumptions
judge and also from the prevailing opinion in this court, there is not
as to time and space within which automobiles may be brought to a
a scintilla of evidence in the record which even tends to show that
stop), which even tends to establish the existence of negligence or
there was any, the slightest negligence on the part of the accused,
misconduct on the part of the accused, unless it be the testimony of
except the mere fact that his machine actually struck the more or
the witnesses to the effect that he was not running at the extreme
less intoxicated soldier, the admitted fact that he did not sound his
left of the road when the accident occurred.
horn, and the somewhat inconclusive evidence on which the court
finds that at the moment when the accident occurred, he was on the
wrong side of the road. On the contrary, all the evidence goes In this connection I venture to assert, however, that there is no
strongly to show that he was traveling at an admittedly reasonable evidence in the record which in any wise sustains the finding in the
rate speed in view of the time, place, and more or less deserted prevailing opinion that the accused was running on "almost the
condition of the street; that he had perfect control of his machine; extreme right-hand side of the street" at the time of the accident.
that it was in perfect order; and that he is an except and On the contrary, I think that at most it discloses, as found by the trial
experienced driver. judge that he was "in the center, or rather, a little to the right of the
center of the street instead of the left thereof." The trial judge,
together with counsel made a personal visit to the scene of the
The weight of the evidence discloses that just before the accident he
accident and based his conclusion upon the result of his personal
was traveling at about rate of 10 or 12 miles an hour, and none of
view of the scene of the accident, aided by the testimony taken at
the witnesses for the prosecution or the defense puts the rate of
the trial. I am convinced that there is absolutely nothing in the
speed at more than 20 miles an hour. The time was 11 o'clock at
record which justified a finding that the accused was running any
night; the place was the open stretch of road between the built-up
farther to the right than is indicated in the findings of the trial judge.
portion of Manila and the town of Santa Ana, near the street-car
The accused offered a very reasonable explanation of his presence
junction with the McKinley track, where a platform and waiting
well out toward the middle of the road in the fact that the street-car
station, well of the road, are furnished by the street-car company to
track runs close to the left side of the road at the place where the
accommodate soldiers and other passengers who may be compelled
accident occurred.
to wait at the junction near by; there was not a single foot passenger
on the deserted street over which the car was running, save only the
more or less intoxicated soldier who suddenly stumbled, lurched, or Now, while the rule of the road imposes a general duty upon drivers
stepped out in front of the car. of automobiles to keep to the left when passing other vehicles and
in densely crowded streets highways, there is no such rule imposing
the duty upon the driver of an automobile to keep upon the extreme
I am of opinion that it would be too ask, as held in the prevailing
left of a country road or a suburban street (on a stretch where
opinion, that under such circumstances the running speed of
"there is no building on either side of the street"), without regard to
defendant's automobile should have been so slow that he could
the condition of the road or street, and without regard to the
have come to a dead stop in the few yards' space over which he had
presence or absence of other vehicle or pedestrians on the highway.
to run before coming up with the foot passenger who suddenly and
I venture the assertion that where the street is more or less
unexpectedly appeared in front of his machine. Foot passenger owe
deserted, and when it appears that there is no danger of collision
some duty to themselves, and it is to my mind utterly unreasonable
with other vehicle, the usual, normal, and, indeed, the proper place
to require the driver of an automobile on a lonely suburban road at
on the road for a fast or moderated fast moving vehicle is well
night, to run at so slow a speed that he will always be able to bring
toward the center provided only the driver is at all times prepared to
his machine to a dead stop in time to avoid injury to any man under
move toward the left sufficiently to avoid collisions with other
the influence of liquor who may suddenly step out into the middle of
vehicles. Foot passengers travel in either direction, along either side
the street in front of the machine. And yet that, I take it is, the true
of a country or suburban road, indifferently, and in truth their safety
construction which must be placed upon the holding of the
in consulted by the driver who keeps well toward the middle of the
prevailing opinion in this regard.
road, or in the middle of the road. That it is the uniform practice of
all drivers of automobiles to tend toward the middle of the ordinary
As to the admitted failure by the defendant to sound his horn, it may country or suburban roads of these Islands is, I believe, a matter of
fairly be doubted whether under all the circumstances any attempt common knowledge to all persons who have had any experience in
should have been made to sound a horn, with the risk of confusing this regard, From my own observation and experience I would deem
the foot passenger; and it may well be that the wisest course under it a wholly unreasonable and unnecessary regulation which would
the circumstances was to do just what the accused did — that is to compel an automobile driver to keep on the left side of country or
say, to try to run around the unexpected pedestrian, without suburban roads regardless of the condition of those roads, and of
confusing him by the sounding of a horn at such close range. the state of traffic, and at risk of a term in the penitentiary in the
Certainly there is nothing in the record which would justify us in event that while running "in the middle of the road or slightly
attempting to make a ruling beyond a reasonable doubt that the toward the right," a lonely foot passenger should unexpectedly step
accused should have sounded his horn; and still less ground is there or stumble out into the middle of the road in front of the machine.
for a holding that he is criminally responsible for a failure to adopt
that course rather than another in the fraction of second allowed
I thoroughly agree with the writer of the prevailing opinion that
him to make up his mind.
there should be no hesitation on the part of the court in visiting the
full rigor of the law upon drivers of high-powered machines, who are
109
proven guilty of reckless negligence resulting in the death or injury And again, on page 112, he says: "An accident to a traveler on a
of foot passengers. But this desire to suppress reckless driving highway, struck by an automobile, happening without negligence on
should not lead us to forget that drivers of automobile have rights the part of the driver of the automobile or the traveler, is an
which the law is bound to respect. They are not outlaws, excepted unavoidable accident and the traveler cannot recover therefor."
from the rule that throws the mantle of innocence about every
citizen charged with the commission of an offense until and unless Again, on page 139, in discussing the right of pedestrians, he says:
the evidence established his guilt beyond a reasonable doubt. They "Ordinary a pedestrian has no right of way superior to that of the
are engaged in honest business, arduous, and in its very nature driver of an automobile, but each may continue in his own course
dangerous at times, despite their utmost care and diligence; and with relative regard for the other's right of travel, and the driver of a
though some of them are guilty of reckless negligence which motor car is not bound to bring his car to a stop, in the absence of
properly and naturally arouses the indignation and resentment of proof authorizing an inference that, in the exercise of due care, he
the public, that is no reason visiting the sins of the guilty upon the had reason to believe that if he proceeded a pedestrian would come
innocent. in contract with the car, and where it did not appear that, after such
contract was inevitable the driver of the motor omitted anything to
The accused, an old and experienced driver, was running his prevent that contract there was no liability."
machine with an apprentice at his side, and that very fact tends to
confirm the testimony of the various witnesses who, as I understand And again, on page 140: "Where one injuries by being run over by an
their testimony, are all agreed as to the prudence and good automobile in the street of a city saw it before it struck her, or by
judgment with which was managing his machine. Can anyone doubt reasonable use of her senses could have seen it in time to avoid the
that had the soldier who was injured not taken so much to drink that injury, she could not recover."
after the accident be smelled strongly of liquor, this case would
never have had any reason for being?
Again, on page 143 discussing the question of permissible speed at
night, he says:
I append a few citations from the authorities in support of the
general principle upon which I base this dissent.
In the large cities there is likely to be less traffic on the
streets during certain hours of the night and there an
Berry in his work on "The Law of Automobiles," paragraph 131,, automobile might therefore safety travel slightly faster
says: "In the use of the public highways a person has a right to than during the day." See Curry vs. Co. Ry. Co., (71 Atl.
expect from other ordinary prudence, and to rely upon that in Rep., 356), in which it was held that "The speed at which
determining his own means of using the road. He has right to travel any vehicle can be driven over a highway at night must be
on may portion of the highway he may see fit, unless he is about to determines partly in view of the distance ahead of it at
pass another vehicle. (Daniel vs. Clegg, 28 Mich., 32, 36; Reens vs. which travelers upon or approaching the same highway
Mail and Express Pub. Co., 10 N.Y., Misc., 122.)" would become visible." In the case of Sagestrom vs.
Lawrence (64 Wash., 245), it was held that: "There is a law
And again, in paragraph 124, he says, with regard to pedestrians: of the road also, arising from usages and custom, which
"The rights and duties of pedestrians and drives of vehicles are requires persons traveling upon a continously used street
equal. Each may use the highway, and each must exercise such care or highway to keep upon the right side of such way.
and prudence as the circumstances demand. (Eaton vs. Cripps, 94 However one may lawfully use what is to him the left hand
Iowa, 176, 180: Jennings vs. Schwab, 64 Mo. App., 13: Barker vs. side of the road if there is no travel at that time upon that
Savage, 45 N.Y., 191, 195; 6 Am. Rep., 66.)" part of the way, or the travel is not so heavy as to make his
conduct a source of danger.
And that "The law of the road requiring travelers in vehicle when
meeting on the highway to turn to the right in order to pass does Perhaps, to avoid misunderstanding, I should add that the driver of
not apply to the meeting of a vehicle and pedestrian." an automobile, when for any reason he leaves the side of the road
upon which he has a right to pass vehicles coming in an opposite
And again, in paragraph 122, he says, supporting the doctrine with direction, is charged with a high degree of care and diligence to
citation of authorities: "When there are no other vehicles which can avoid collisions. The authorities all properly agree that under such
be interfered with, one is at liberty to drive on any part of the circumstances the obligation rests upon him to take special pains to
highway he may choose or may find most convenient or agreeable see to it that vehicles coming in an opposite direction are not taken
for the purpose of travel. In passing an obstruction in the highway it unawares by his presence on the side of the road upon which they
may be one's duty in the exercise of reasonable care to pass to the have right to pass. But this, like the general rule of the road, is mere
left of the same if that way appears less hazardous than the way to rule of negligence, and it by no means follows that he is liable, at all
the right." events, and despite the exercise of due diligence on his part for any
collision which may take place, merely because he has crossed over
for some sufficient reason to that side of the road. And certainly it
And in paragraph 121 he says: "The law does not require
does not mean that one who is driving an automobile at or near the
unnecessary things to the done, hence of it is not necessary to turn
center of an unoccupied suburban or country roads can be
to the right when meeting on the highway in order to pass, the rule
held criminally liable for reckless negligence unless he reduces his
need not be observed. Thus it was not necessary for the operator of
speed and runs so slowly that he can bring the machine to a dead
an automobile to turn to the right when meeting a vehicle which
stop in time to avoid a collision with a more or less intoxicated
was being driven outside of the traveled part of the road and which
pedestrian who suddenly, unnexpectedly and negligently steps, runs
had sufficient room to pass."
or stumbles in front of the machine, it appearing that in all other
respects the driver was exercising due care and diligence in the
Huddy in his work on "The Law of Automobiles," page 91, discussing management of his machine.
"The Law of the Road," says: "Properly considered, the rule of the
road is a rule of negligence, and the fact that a person was on the
wrong side of the road when a collision took place does not per se
make him liable for damages, but his liability is determined by the
rule of law applicable to cases of negligence. The rule is not an
inflexible one, and a deviation therefrom is often proper and
something necessary." G.R. Nos. 74387-90 November 14, 1988
BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO
And again, at page 96, he says: "The rights of footmen and drivers in PON, petitioners,
the highway are equal and both must exercise such care as vs.
circumstances demand." INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE

110
PAMFILO, THE HEIRS OF NORMA NERI, and BAYLON SALES and It is argued by petitioners that if the intention of private
NENA VDA. DE ROSALES, respondents. respondents were to file an action based on culpa contractual or
Sibal, Custodia, Santos & Nofuente for petitioners. breach of contract of carriage, they could have done so by merely
Restituto L. Opis for respondents Pamfilos and Rosaleses. impleading BLTB and its driver Pon. As it was in the trial court,
Citizens Legal Assistance Office for N. Neri and Baylon Sales. private respondents filed an action against all the defendants basing
their action on culpa aquiliana or tort.

PARAS, J.: Petitioners' contentions deserve no merit. A reading of the

respondent court's decision shows that it anchored petitioners'
Before Us is a Petition to Review by Certiorari, the decision 1 of the liability both on culpa contractual and culpa aquiliana, to wit:
respondent appellate court which affirmed with modification the
joint decision of the trial court in four (4) cases involving similar facts The proximate cause of the collision resulting in
and issues, finding favorably for the plaintiffs (private respondents the death of three and injuries to two of the
herein), the dispositive portion of said appellate judgment reading passengers of BLTB was the negligence of the
as follows: driver of the BLTB bus, who recklessly operated
and drove said bus by overtaking a Ford Fiera car
WHEREFORE, with the modification that the death as he was negotiating the ascending bend of the
indemnity is raised to P30,000.00 to each set of the highway (tsn, October 4, 1979, pp. 9-10, 35, 36,
victims' heirs, the rest of the judgment appealed from is 61; Exhibit 6 Superlines, p. 47) which was divided
hereby affirmed in toto. Costs against the defendants- into two lanes by a continuous yellow strip (tsn,
appellants. October 4, 1979, p. 36). The driver of the BLTB
bus admitted in his cross-examination that the
continuous yellow line on the ascending bend of
SO ORDERED. (p. 20, Rollo)
the highway signifies a no-overtaking zone (tsn,
October 4, 1979, p. 36). It is no surprise then
From the records of the case We have gathered the following that the driver of the Superlines bus was
antecedent facts: exonerated by the lower court. He had a valid
reason to presuppose that no one would
The collision between Bus No. 1046 of the Batangas Laguna Tayabas overtake in such a dangerous situation. These
Bus Company (BLTB, for brevity) driven by Armando Pon and Bus No. facts show that patient imprudence of the BLTB
404 of Superlines Transportation Company (Superlines, for brevity) driver.
driven by Ruben Dasco took place at the highway traversing
Barangay Isabong, Tayabas, Quezon in the afternoon of August 11, It is well settled that a driver abandoning his
1978, which collision resulted in the death of Aniceto Rosales, proper lane for the purpose of overtaking
Francisco Pamfilo and Romeo Neri and in several injuries to Nena another vehicle in ordinary situation has the
Rosales (wife of Anecito) and Baylon Sales, all passengers of the duty to see that the road is clear and not to
BLTB Bus No. 1046. The evidence shows that as BLTB Bus No. 1046 proceed if he can not do so in safety (People v.
was negotiating the bend of the highway, it tried to overtake a Ford Enriquez, 40 O.G. No. 5, 984).
Fiera car just as Bus No. 404 of Superlines was coming from the
opposite direction. Seeing thus, Armando Pon (driver of the BLTB
... Before attempting to pass the vehicle ahead,
Bus) made a belated attempt to slacken the speed of his bus and
the rear driver must see that the road is clear
tried to return to his proper lane. It was an unsuccessful try as the
and if there is no sufficient room for a safe
two (2) buses collided with each other.
passage, or the driver ahead does not turn out
so as to afford opportunity to pass, or if, after
Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the attempting to pass, the driver of the overtaking
deceased Francisco Pamfilo, Aniceto Rosales and Romeo Neri vehicle finds that he cannot make the passage in
instituted separate cases in the Court of First Instance of safety, the latter must slacken his speed so as to
Marinduque against BLTB and Superlines together with their avoid the danger of a collision, even bringing his
respective drivers praying for damages, attorney's fees and litigation car to a stop if necessary. (3-4 Huddy
expenses plus costs. Criminal cases against the drivers of the two Encyclopedia of Automobile Law, Sec. 212, p.
buses were filed in the Court of First Instance of Quezon. 195).

Defendants BLTB and Superlines, together with their drivers Pon and The above rule becomes more particularly
Dasco, denied liability by claiming that they exercised due care and applicable in this case when the overtaking took
diligence and shifted the fault, against each other. They all place on an ascending curved highway divided
interposed counterclaims against the plaintiffs and crossclaims into two lanes by a continuous yellow line.
against each other. Appellant Pon should have remembered that:

After trial on the merits, the lower court exonerated defendants When a motor vehicle is approaching or
Superlines and its driver Dasco from liability and attributed sole rounding a curve there is special necessity for
responsibility to defendants BLTB and its driver Pon, and ordered keeping to the right side of the road and the
them jointly and severally to pay damages to the plaintiffs. driver has not the right to drive on the left hand
Defendants BLTB and Armando Pon appealed from the decision of side relying upon having time to turn to the right
the lower court to respondent appellate court which affirmed with if a car is approaching from the opposite
modification the judgment of the lower court as earlier stated. direction comes into view. (42 C.J. 42 906).

Hence, this petition to review by certiorari of defendant BLTB Unless there is proof to the contrary, it is
assigning a lone error, to wit: presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap,
THE INTERMEDIATE APPELLATE COURT ERRED IN he was violating any traffic regulation. (Art.
ADJUDGING THAT THE ACTIONS OF PRIVATE 2165, Civil Code).
RESPONDENTS ARE BASED ON CULPA
CONTRACTUAL. (p. 12, Rollo) In failing to observe these simple precautions,
BLTB's driver undoubtedly failed to act with the
diligence demanded by the circumstances.

111
 We now come to the subject of liability of the SO ORDERED.
appellants.

For his own negligence in recklessly driving the

truck owned by his employer, appellant
Armando Pon is primarily liable (Article 2176,
Civil Code).<äre||anº•1àw>

On the other hand the liability of Pon's

employer, appellant BLTB, is also primary, direct
and immediate in view of the fact that the death
of or injuries to its passengers was through the
negligence of its employee (Marahan v.
Mendoza, 24 SCRA 888, 894), and such liability
does not cease even upon proof that BLTB had
exercised all the diligence of a good father of a
family in the selection and supervision of its
employees (Article 1759, Civil Code).

The common carrier's liability for the death of or

injuries to its passengers is based on its
contractual obligation to carry its passengers
safely to their destination. That obligation is so
serious that the Civil Code requires "utmost
diligence of very cautious person (Article 1755,
Civil Code). They are presumed to have been at
fault or to have acted negligently unless they
prove that they have observed extraordinary
diligence" (Article 1756, Civil Code). In the
present case, the appellants have failed to prove
extraordinary diligence. Indeed, this legal
presumption was confirmed by the fact that the
bus driver of BLTB was negligent. It must follow
that both the driver and the owner must answer
for injuries or death to its passengers.

The liability of BLTB is also solidarily with its

driver (Viluan v. Court of Appeals, 16 SCRA 742,
747) even though the liability of the driver
springs from quasi delict while that of the bus
company from contract. (pp. 17-19, Rollo)

Conclusively therefore in consideration of the foregoing findings of

the respondent appellate court it is settled that the proximate cause
of the collision resulting in the death of three and injuries to two of
the passengers of BLTB was the sole negligence of the driver of the
BLTB Bus, who recklessly operated and drove said bus in a lane
where overtaking is not allowed by Traffic Rules and Regulations.
Such negligence and recklessness is binding against petitioner BLTB,
more so when We consider the fact that in an action based on a
contract of carriage, the court need not make an express finding of
fault or negligence on the part of the carrier in order to hold it
responsible for the payment of the damages sought by the
passenger. By the contract of carriage, the carrier BLTB assumed the
express obligation to transport the passengers to their destination
safely and to observe extraordinary diligence with a due regard for
all the circumstances, and any injury that might be suffered by its
passengers is right away attributable to the fault or negligence of
the carrier (Art. 1756, New Civil Code).

Petitioners also contend that "a common carrier is not an absolute

insurer against all risks of travel and are not liable for acts or
accidents which cannot be foreseen or inevitable and that
responsibility of a common carrier for the safety of its passenger
prescribed in Articles 1733 and 1755 of the New Civil Code is not
susceptible of a precise and definite formulation." (p. 13, Rollo)
Petitioners' contention holds no water because they had totally
failed to point out any factual basis for their defense of force
majeure in the light of the undisputed fact that the cause of the
collision was the sole negligence and recklessness of petitioner G.R. No. 118889 March 23, 1998
Armando Pon. For the defense of force majeure or act of God to
prosper the accident must be due to natural causes and exclusively FGU INSURANCE CORPORATION, petitioner,
without human intervention. vs. COURT OF APPEALS, FILCAR TRANSPORT, INC., and FORTUNE
INSURANCE CORPORATION, respondents.
WHEREFORE, premises considered, the appealed decision is hereby
AFFIRMED. BELLOSILLO, J.:
112
For damages suffered by a third party, may an action based The father and, in case of his death or incapacity, the
on quasi-delict prosper against a rent-a-car company and, mother, are responsible for the damages caused by the
consequently, its insurer for fault or negligence of the car lessee in minor children who live in their company.
driving the rented vehicle?
Guardians are liable for damages caused by the minors or
This was a two-car collision at dawn. At around 3 o'clock of 21 April incapacitated persons who are under their authority and
1987, two (2) vehicles, both Mitsubishi Colt Lancers, cruising live in their company.
northward along Epifanio de los Santos Avenue, Mandaluyong City,
figured in a traffic accident. The car bearing Plate No. PDG 435 The owners and managers of an establishment or
owned by Lydia F. Soriano was being driven at the outer lane of the enterprise are likewise responsible for damages caused by
highway by Benjamin Jacildone, while the other car, with Plate No. their employees in the service of the branches in which the
PCT 792, owned by respondent FILCAR Transport, Inc. (FILCAR), and latter are employed or on the occasion of their functions.
driven by Peter Dahl-Jensen as lessee, was at the center lane, left of
the other vehicle. Upon approaching the corner of Pioneer Street,
Employers shall be liable for the damages caused by their
the car owned by FILCAR swerved to the right hitting the left side of
employees and household helpers acting within the scope
the car of Soriano. At that time Dahl-Jensen, a Danish tourist, did not
of their assigned tasks, even though the former are not
possess a Philippine driver's license. 1
engaged in any business or industry.

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

The State is responsible in like manner when it acts
its insurance contract with Soriano, paid the latter P25,382.20. By
through a special agent; but not when the damage has
way of subrogation,2 it sued Dahl-Jensen and respondent FILCAR as
been caused by the official to whom the task done
well as respondent Fortune Insurance Corporation (FORTUNE) as
properly pertains, in which case what is provided in article
insurer of FILCAR for quasi-delict before the Regional Trial Court of
2176 shall be applicable.
Makati City.

Lastly, teachers or heads of establishments of arts and

Unfortunately, summons was not served on Dahl-Jensen since he
trades shall be liable for damages caused by their pupils
was no longer staying at his given address; in fact, upon motion of
and students or apprentices, so long as they remain in
petitioner, he was dropped from the complaint.
their custody.

On 30 July 1991 the trial court dismissed the case for failure of
The responsibility treated of in this article shall cease
petitioner to substantiate its claim of subrogation.3
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
On 31 January 1995 respondent Court of Appeals affirmed the ruling prevent damage.
of the trial court although based on another ground, i.e., only the
fault or negligence of Dahl-Jensen was sufficiently proved but not
The liability imposed by Art. 2180 arises by virtue of a
that of respondent FILCAR.4 In other words, petitioner failed to
presumption juris tantum of negligence on the part of the persons
establish its cause of action for sum of money based on quasi-delict.
made responsible thereunder, derived from their failure to exercise
due care and vigilance over the acts of subordinates to prevent them
In this appeal, petitioner insists that respondents are liable on the from causing damage.7 Yet, as correctly observed by respondent
strength of the ruling in MYC-Agro-Industrial Corporation v. Vda. de court, Art. 2180 is hardly applicable because none of the
Caldo5 that the registered owner of a vehicle is liable for damages circumstances mentioned therein obtains in the case under
suffered by third persons although the vehicle is leased to another. consideration. Respondent FILCAR being engaged in a rent-a-car
business was only the owner of the car leased to Dahl-Jensen. As
We find no reversible error committed by respondent court in such, there was no vinculum juris between them as employer and
upholding the dismissal of petitioner's complaint. The pertinent employee. Respondent FILCAR cannot in any way be responsible for
provision is Art. 2176 of the Civil Code which states: "Whoever by act the negligent act of Dahl-Jensen, the former not being an employer
or omission causes damage to another, there being fault or of the latter.
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between We now correlate par. 5 of Art. 2180 with Art. 2184 of the same
the parties, is called a quasi-delict . . . . " Code which provides: "In motor vehicle mishap, the owner is
solidarily liable with his driver, if the former, who was in the vehicle,
To sustain a claim based thereon, the following requisites must could have by the use of due diligence, prevented the misfortune . . .
concur: (a) damage suffered by the plaintiff; (b) fault or negligence . If the owner was not in the motor vehicle, the provisions of article
of the defendant; and, (c) connection of cause and effect between 2180 are applicable." Obviously, this provision of Art. 2184 is neither
the fault or negligence of the defendant and the damage incurred by applicable because of the absence of master-driver relationship
the plaintiff.6 between respondent FILCAR and Dahl-Jensen. Clearly, petitioner has
no cause of action against respondent FILCAR on the basis of quasi-
We agree with respondent court that petitioner failed to prove the delict; logically, its claim against respondent FORTUNE can neither
existence of the second requisite, i.e., fault or negligence of prosper.
defendant FILCAR, because only the fault or negligence of Dahl-
Jensen was sufficiently established, not that of FILCAR. It should be Petitioner's insistence on MYC-Agro-Industrial Corporation is rooted
noted that the damage caused on the vehicle of Soriano was in a misapprehension of our ruling therein. In that case, the
brought about by the circumstance that Dahl-Jensen swerved to the negligent and reckless operation of the truck owned by petitioner
right while the vehicle that he was driving was at the center lane. It corporation caused injuries to several persons and damage to
is plain that the negligence was solely attributable to Dahl-Jensen property. Intending to exculpate itself from liability, the corporation
thus making the damage suffered by the other vehicle his personal raised the defense that at the time of the collision it had no more
liability. Respondent FILCAR did not have any participation therein. control over the vehicle as it was leased to another; and, that the
driver was not its employee but of the lessee. The trial court was not
Article 2180 of the same Code which deals also with quasi- persuaded as it found that the true nature of the alleged lease
delict provides: contract was nothing more than a disguise effected by the
corporation to relieve itself of the burdens and responsibilities of an
employer. We upheld this finding and affirmed the declaration of
The obligation imposed by article 2176 is demandable not
joint and several liability of the corporation with its driver.
only for one's own acts or omissions, but also for those of
persons for whom one is responsible.

113
WHEREFORE, the petition is DENIED. The decision of respondent lane of the highway, Genaro’s car hit the right portion of the truck.
Court of Appeals dated 31 January 1995 sustaining the dismissal of The truck dragged Genaro’s car some five meters to the right of the
petitioner's complaint by the trial court is AFFIRMED. Costs against road.
petitioner.
As a consequence, all the passengers of the car were rushed to the
SO ORDERED. De La Salle University Medical Center in Dasmariñas, Cavite for
treatment. Because of severe injuries, Antero was later transferred
to the Philippine General Hospital. However, on 3 November 1994,
Antero died due to the injuries he sustained from the collision. The
car was a total wreck while the truck sustained minor damage.

On 24 April 1995, petitioners Genaro, Llanillo, Dignadice, and the

heirs of Antero5 instituted a complaint for damages based on quasi-
delict against respondents Bedania and de Silva.

On 5 December 2000, the trial court rendered a decision in favor of

petitioners. The trial court found Bedania grossly negligent for
recklessly maneuvering the truck by making a sudden U-turn in the
highway without due regard to traffic rules and the safety of other
motorists. The trial court also declared de Silva grossly negligent in
the selection and supervision of his driver, Bedania. The dispositive
portion of the decision provides:

WHEREFORE, judgment is hereby rendered ordering defendants

Rodolfo A. Bedania and Rodolfo de Silva, jointly and severally, to pay
plaintiffs, as follows:

1. The sum of ₱508,566.03 representing the

damage/repair costs of the Toyota to plaintiff Genaro M.
Guillang.
2. The sum of ₱50,000.00 for the death of Antero Guillang
plus ₱185,000.00 for his burial expenses, to the heirs of
Antero Guillang.
3. For hospital and medical expenses as reflected in
Exhibits E, E-1 to E-30 to plaintiffs Genaro M. Guillang, Jose
Dignadice and Alvin Llanillo.
G.R. No. 162987 May 21, 2009 4. The sum of ₱50,000.00 as moral damages for the heirs
of the deceased Antero Guillang.
SOFIA M. GUILLANG, represented by SUSAN GUILLANG-CABATBAT, 5. The sum of ₱50,000.00 as moral damages each to
REYNALDO, GERARDO, BIENVENIDO, DAWNA, and NELLIE, all plaintiffs Jose Dignadice, Alvin Llanillo and Genaro
surnamed GUILLANG, GENARO GUILLANG, JOSE DIGNADICE, and Guillang.
ALVIN LLANILLO, Petitioners, 6. The sum of ₱50,000.00 as exemplary damages.
vs. 7. The sum of ₱100,000.00 as and for attorney’s fess.
RODOLFO BEDANIA and RODOLFO DE SILVA, Respondents. 8. The costs of the suit.

DECISION SO ORDERED.6

CARPIO, J.: Respondents appealed to the Court of Appeals.

The Case On 3 June 2003, the Court of Appeals rendered its decision in favor
of respondents. The dispositive portion of the decision provides:
This is a petition for review1 of the 3 June 2003 Decision2 and the 23
March 2004 Resolution3 of the Court of Appeals in CA-G.R. CV No. IN VIEW OF ALL THE FOREGOING, the appealed decision
69289. The 3 June 2003 Decision set aside the 5 December 2000 is REVERSED and SET ASIDE. The complaint of the herein appellees in
Decision4 of the Regional Trial Court, Branch 30, Manila (trial court). Civil Case No. 95-73666 is DISMISSED, for lack of merit. The
The 23 March 2004 Resolution denied the motion for appellants’ counterclaims in the instant case are
reconsideration. likewise DISMISSED. No pronouncement as to cost.

The Facts SO ORDERED.7

On 25 October 1994, at about 5:45 in the afternoon, petitioner Petitioners filed a motion for reconsideration. On 23 March 2004,
Genaro M. Guillang (Genaro) was driving his brand new Toyota the Court of Appeals denied the motion.
Corolla GLI sedan with conduction sticker no. 54-DFT (car) along
Emilio Aguinaldo Highway (highway) in Cavite. Genaro, Antero Hence, this petition.
Guillang (Antero), Felipe Jurilla, Jose Dignadice (Dignadice), and Alvin
Llanillo (Llanillo) had all just left from Golden City, Dasmariñas,
The Ruling of the Regional Trial Court
Cavite, and were on their way to Manila. At the other side of the
highway, respondent Rodolfo A. Bedania (Bedania) was driving a
ten-wheeler Isuzu cargo truck with plate no. CAC-923 (truck) According to the trial court, there is a presumption that a person
towards Tagaytay City. The truck was owned by respondent Rodolfo driving a motor vehicle has been negligent if at the time of the
de Silva (de Silva). mishap, he was violating any traffic regulation.8 In this case, the trial
court found that the Traffic Accident Investigation Report
(report),9 corroborated by the testimonies of the witnesses, showed
Along the highway and the road leading to the Orchard Golf Course,
that the truck committed a traffic violation by executing a U-turn
Bedania negotiated a U-turn. When the truck entered the opposite
without signal lights. The trial court also declared that Bedania
114
violated Sections 45(b),10 48,11 and 5412 of Republic Act No. proximate cause of Antero’s death and the injuries of the
413613 when he executed the sudden U-turn. The trial court added petitioners.
that Bedania violated another traffic rule when he abandoned the
victims after the collision.14 The trial court concluded that Bedania The Court of Appeals also relied on the testimony of Police Traffic
was grossly negligent in his driving and held him liable for damages. Investigator Efren Videna (Videna) that the car was running at a fast
speed and overtook another vehicle just before the collision
Moreover, the trial court found that Bedania did not make the U- occurred.18 The Court of Appeals concluded that Genaro did not see
turn at an intersection. According to the trial court, vehicles trying to the truck as the other vehicle temporarily blocked his view of the
maneuver to change directions must seek an intersection where it is intersection. The Court of Appeals also gave weight to Videna’s
safer to maneuver and not recklessly make a U-turn in a highway. testimony that it was normal for a ten-wheeler truck to make a U-
The trial court said Bedania should have observed extreme caution turn on that part of the highway because the entrance to Orchard
in making a U-turn because it was unexpected that a long cargo Golf Course was spacious.19
truck would execute a U-turn along the highway.
The Issues
The trial court also said that Bedania’s gross negligence raised the
legal presumption that de Silva, as Bedania’s employer, was Petitioners raise the following issues:
negligent in the selection and supervision of his employees. The trial
court said that, under Articles 217615 and 218016 of the Civil Code,
1. Did the Court of Appeals decide a question of substance
de Silva’s liability was based on culpa aquiliana which holds the
in this case in a way probably not in accord with law or
employer primarily liable for tortious acts of his employees, subject
with the applicable decisions of the Honorable Supreme
to the defense that he exercised all the diligence of a good father of
Court?
a family in the selection and supervision of his employees. The trial
court ruled that de Silva failed to prove this defense and,
consequently, held him liable for damages. 2. Did the Court of Appeals depart from the accepted and
usual course of judicial proceedings particularly when it
revised, and recast the findings of facts of the trial court
The Ruling of the Court of Appeals
pertaining to credibility of witnesses of which the trial
court was at the vantage point to evaluate?
The Court of Appeals reversed the trial court’s decision and said that
the trial court overlooked substantial facts and circumstances which,
3. Did the Court of Appeals act with grave abuse of
if properly considered, would justify a different conclusion and alter
discretion amounting to lack of jurisdiction when it
the results of the case.
rendered the palpably questionable Court of Appeals’
Decision that tampered with the findings of fact of the trial
The Court of Appeals dismissed the testimonies of the witnesses and court for no justifiable reason?
declared that they were "contrary to human observation, knowledge
and experience." The Court of Appeals also said that the following
4. Is the Court of Appeals’ judgment and resolution
were the physical evidences in the case:
reversing the decision of the trial court supported by the
evidence and the law and jurisprudence applicable?20
1. It was not yet dark when the incident transpired;
The issue in this case is who is liable for the damages suffered by
2. The four-lane highway the appellees were cruising on petitioners. The trial court held Bedania and de Silva, as Bedania’s
was wide, straight, dry, relatively plain and with no employer, liable because the proximate cause of the collision was
obstructions to the driver’s vision; the sudden U-turn executed by Bedania without any signal lights. On
the other hand, the Court of Appeals reversed the trial court’s
3. The point of impact of the collision is on the lane where decision and held Genaro liable because the proximate cause of the
the car was cruising and the car hit the gas tank of the collision was Genaro’s failure to stop the car despite seeing that
truck located at its right middle portion, which indicates Bedania was making a U-turn.
that the truck had already properly positioned itself and
had already executed the U-turn before the impact The Ruling of the Court
occurred;
The principle is well-established that this Court is not a trier of facts.
4. Genaro Guillang was not able to stop the car in time and Therefore, in an appeal by certiorari under Rule 45 of the Rules of
the car’s front portion was totally wrecked. This negates Court, only questions of law may be raised. The resolution of factual
appellees’ contention that they were traveling at a issues is the function of the lower courts whose findings on these
moderate speed; and matters are received with respect and are, as a rule, binding on this
Court.21
5. The sheer size of the truck makes it improbable for the
said vehicle to negotiate a U-turn at a sudden and fast However, this rule is subject to certain exceptions. One of these is
speed – as appellees vigorously suggest – without toppling when the findings of the appellate court are contrary to those of the
over on its side.17 (Citations omitted) trial court.22 Findings of fact of the trial court and the Court of
Appeals may also be set aside when such findings are not supported
The Court of Appeals concluded that the collision was caused by by the evidence or where the lower courts’ conclusions are based on
Genaro’s negligence. The Court of Appeals declared that the truck a misapprehension of facts.23 Such is the situation in this case and
arrived at the intersection way ahead of the car and had already we shall re-examine the facts and evidence presented before the
executed the U-turn when the car, traveling at a fast speed, hit the lower courts.
truck’s side. The Court of Appeals added that considering the time
and the favorable visibility of the road and the road conditions, Article 2176 of the Civil Code provides that whoever by act or
Genaro, if he was alert, had ample time to react to the changing omission causes damage to another, there being fault or negligence,
conditions of the road. The Court of Appeals found no reason for is obliged to pay for the damage done. Such fault or negligence, if
Genaro not to be prudent because he was approaching an there is no pre-existing contractual relations between the parties, is
intersection and there was a great possibility that vehicles would be called a quasi-delict. To sustain a claim based on quasi-delict, the
traversing the intersection either going to or from Orchard Golf following requisites must concur: (a) damage suffered by the
Course. The Court of Appeals said Genaro should have slowed down plaintiff; (b) fault or negligence of defendant; and (c) connection of
upon reaching the intersection. The Court of Appeals concluded that cause and effect between the fault or negligence of defendant and
Genaro’s failure to observe the necessary precautions was the the damage incurred by the plaintiff.24

115
There is no dispute that petitioners suffered damages because of the change direction, he should seek an intersection where it is safer to
collision. However, the issues on negligence and proximate cause maneuver the truck. Bedania should have also turned on his signal
are disputed. lights and made sure that the highway was clear of vehicles from the
opposite direction before executing the U-turn.
On the Presumption of Negligence and Proximate Cause
The finding of the Court of Appeals that it was not yet dark when the
Negligence is defined as the failure to observe for the protection of collision occurred is also not supported by the evidence on record.
the interest of another person that degree of care, precaution, and The report stated that the daylight condition at the time of the
vigilance which the circumstances justly demand, whereby such collision was "darkness."39
other person suffers injury. In Picart v. Smith,25 we held that the test
of negligence is whether the defendant in doing the alleged Contrary to the conclusion of the Court of Appeals, the sheer size of
negligent act used that reasonable care and caution which an the truck does not make it improbable for the truck to execute a
ordinary person would have used in the same situation. sudden U-turn. The trial court’s decision did not state that the truck
was traveling at a fast speed when it made the U-turn. The trial
The conclusion of the Court of Appeals that Genaro was negligent is court said the truck made a "sudden" U-turn, meaning the U-turn
not supported by the evidence on record. In ruling that Genaro was was made unexpectedly and with no warning, as shown by the fact
negligent, the Court of Appeals gave weight and credence to that the truck’s signal lights were not turned on.
Videna’s testimony. However, we find that Videna’s testimony was
inconsistent with the police records and report that he made on the Clearly, Bedania’s negligence was the proximate cause of the
day of the collision. First, Videna testified that the car was running collision which claimed the life of Antero and injured the petitioners.
fast and overtook another vehicle that already gave way to the Proximate cause is that which, in the natural and continuous
truck.26 But this was not indicated in either the report or the police sequence, unbroken by any efficient, intervening cause, produces
records. Moreover, if the car was speeding, there should have been the injury, and without which the result would not have
skid marks on the road when Genaro stepped on the brakes to avoid occurred.40 The cause of the collision is traceable to the negligent
the collision. But the sketch of the accident showed no skid marks act of Bedania for if the U-turn was executed with the proper
made by the car.27 Second, Videna testified that the petitioners precaution, the mishap in all probability would not have happened.
came from a drinking spree because he was able to smell The sudden U-turn of the truck without signal lights posed a serious
liquor.28 But in the report,29 Videna indicated that the condition of risk to oncoming motorists. Bedania failed to prevent or minimize
Genaro was "normal." Videna did not indicate in the report that that risk. The truck’s sudden U-turn triggered a series of events that
Genaro "had been drinking liquor" or that Genaro "was obviously led to the collision and, ultimately, to the death of Antero and the
drunk." Third, Videna testified that when he arrived at the scene, injuries of petitioners.
Bedania was inside his truck.30 This contradicts the police records
where Videna stated that after the collision Bedania escaped and We agree with the trial court that de Silva, as Bedania’s employer, is
abandoned the victims.31 The police records also showed that also liable for the damages suffered by petitioners. De Silva failed to
Bedania was arrested by the police at his barracks in Anabu, Imus, prove that he exercised all the diligence of a good father of a family
Cavite and was turned over to the police only on 26 October 1994.32 in the selection and supervision of his employees.

Under Article 2185 of the Civil Code, unless there is proof to the On the Award of Damages and Attorney’s Fees
contrary, a person driving a vehicle is presumed negligent if at the
time of the mishap, he was violating any traffic regulation.
According to prevailing jurisprudence, civil indemnity for death
caused by a quasi-delict is pegged at ₱50,000.41 Moral damages in
In this case, the report33 showed that the truck, while making the U- the amount of ₱50,000 is also awarded to the heirs of the deceased
turn, failed to signal, a violation of traffic rules. The police records taking into consideration the pain and anguish they
also stated that, after the collision, Bedania escaped and abandoned suffered.42 Bienvenido Guillang (Bienvenido), Antero’s son, testified
the petitioners and his truck.34 This is another violation of a traffic that Sofia, Antero’s wife and his mother, became depressed after
regulation.35 Therefore, the presumption arises that Bedania was Antero’s death and that Sofia died a year after.43 Bienvenido also
negligent at the time of the mishap. testified on the pain and anguish their family suffered as a
consequence of their father’s death.44 We sustain the trial court’s
The evidence presented in this case also does not support the award of ₱50,000 as indemnity for death and ₱50,000 as moral
conclusion of the Court of Appeals that the truck had already damages to the heirs of Antero.
executed the U-turn before the impact occurred. If the truck had
fully made the U-turn, it should have been hit on its rear. 36 If the As to funeral and burial expenses, the court can only award such
truck had already negotiated even half of the turn and is almost on amount as are supported by proper receipts.45 In this case,
the other side of the highway, then the truck should have been hit in petitioners proved funeral and burial expenses of ₱55,000 as
the middle portion of the trailer or cargo compartment. But the evidenced by Receipt No. 1082,46 ₱65,000 as evidenced by Receipt
evidence clearly shows, and the Court of Appeals even declared, that No. 114647 and ₱15,000 as evidenced by Receipt No. 1064,48 all
the car hit the truck’s gas tank, located at the truck’s right middle issued by the Manila South Cemetery Association, Inc., aggregating
portion, which disproves the conclusion of the Court of Appeals that ₱135,000. We reduce the trial court’s award of funeral and burial
the truck had already executed the U-turn when it was hit by the expenses from ₱185,000 to ₱135,000.
car.
As to hospitalization expenses, only substantiated and proven
Moreover, the Court of Appeals said that the point of impact was on expenses, or those that appear to have been genuinely incurred in
the lane where the car was cruising. Therefore, the car had every connection with the hospitalization of the victims will be recognized
right to be on that road and the car had the right of way over the in court.49 In this case, the trial court did not specify the amount of
truck that was making a U-turn. Clearly, the truck encroached upon hospitalization expenses to be awarded to the petitioners. Since
the car’s lane when it suddenly made the U-turn. petitioners presented receipts for hospitalization expenses during
the trial, we will determine the proper amounts to be awarded to
The Court of Appeals also concluded that Bedania made the U-turn each of them. We award hospitalization expenses of ₱27,000.98 to
at an intersection. Again, this is not supported by the evidence on the heirs of Antero,50 ₱10,881.60 to Llanillo,51 ₱5,436.77 to
record. The police sketch37 does not indicate an intersection and Dignadice,52 and ₱300 to Genaro53 because these are the amounts
only shows that there was a road leading to the Orchard Golf Course duly substantiated by receipts.
near the place of the collision. Furthermore, U-turns are generally
not advisable particularly on major streets.38 Contrary to Videna’s We affirm the trial court’s award of ₱508,566.03 for the repair of the
testimony, it is not normal for a truck to make a U-turn on a car. The Court notes that there is no dispute that Genaro was driving
highway. We agree with the trial court that if Bedania wanted to a brand new Toyota Corolla GLI sedan and that, after the collision,

116
the car was a total wreck. In this case, the repair order presented by
Genaro is sufficient proof of the damages sustained by the
car.541avvphi1.zw+

Moral damages may be recovered in quasi-delicts causing physical

injuries.55 However, in accordance with prevailing jurisprudence, we
reduce the award of moral damages from ₱50,000 to ₱30,000 each
to Llanillo, Dignadice, and Genaro since they only suffered physical
injuries brought about by the collision.56

In quasi-delicts, exemplary damages may be granted if the

defendant acted with gross negligence.57 While the amount of
exemplary damages need not be proved, the plaintiff must show
that he is entitled to moral, temperate or compensatory damages
before the court may consider the question of whether or not
exemplary damages should be awarded.58 In this case, Bedania was
grossly negligent in suddenly making a U-turn in the highway
without signal lights. To serve as an example for the public good, we
affirm the trial court’s award of exemplary damages in the amount
of ₱50,000.

Finally, we affirm the trial court’s award of attorney’s fees in the

amount of ₱100,000. Under Article 2208 of the Civil Code, attorney’s
fees may be recovered when, as in this case, exemplary damages are
awarded.

WHEREFORE, we REVERSE the 3 June 2003 Decision and 23 March

2004 Resolution of the Court of Appeals in CA-G.R. CV No. 69289.
We REINSTATE with MODIFICATIONS the 5 December 2000 Decision
of the Regional Trial Court, Branch 30, Manila. We ORDER Rodolfo
Bedania and Rodolfo de Silva, jointly and severally, to pay the
following amounts:

1. Funeral and Burial Expenses of ₱135,000 to the heirs of

Antero Guillang;

2. Hospitalization Expenses of ₱27,000.98 to the heirs of

Antero Guillang, ₱10,881.60 to Alvin Llanillo, ₱5,436.77 to
Jose Dignadice, and ₱300 to Genaro Guillang; and

3. Moral damages of ₱30,000 each to Alvin Llanillo, Jose

Dignadice, and Genaro Guillang.

SO ORDERED.

117