Digest for Torts

8/13/2019 Digest for Torts

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,vs.

FRANK SMIT, !R., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J."

In this action the plaintiff, Amado Picart, sees to recover of the defendant, !ran "mith, #r., the sumof P$%,&&&, as dama'es alle'ed to have been caused b( an automobile driven b( the defendant. !rom a #ud'ment of the Court of !irst Instance of the Province of )a *nion absolvin' the defendant fromliabilit( the plaintiff has appealed.

+he occurrence hich 'ave rise to the institution of this action too place on ecember %, %/%, on

the Carlatan Brid'e, at "an !ernando, )a *nion. It appears that upon the occasion in 0uestion the plaintiff as ridin' on his pon( over said brid'e. Before he had 'otten half a( across, the defendantapproached from the opposite direction in an automobile, 'oin' at the rate of about ten or telve miles per hour. As the defendant neared the brid'e he sa a horseman on it and ble his horn to 'ivearnin' of his approach. 1e continued his course and after he had taen the brid'e he 'ave to moresuccessive blasts, as it appeared to him that the man on horsebac before him as not observin' therule of the road.

+he plaintiff, it appears, sa the automobile comin' and heard the arnin' si'nals. 1oever, bein' perturbed b( the novelt( of the apparition or the rapidit( of the approach, he pull ed the pon( closel( upa'ainst the railin' on the ri'ht side of the brid'e instead of 'oin' to the left. 1e sa(s that the reason hedid this as that he thou'ht he did not have sufficient time to 'et over to the other side. +he brid'e isshon to have a len'th of about 23 meters and a idth of 4.5& meters. As the automobile approached,the defendant 'uided it toard his left, that bein' the proper side of the road for the machine. In so

doin' the defendant assumed that the horseman ould move to the other side. +he pon( had not as (ete6hibited fri'ht, and the rider had made no si'n for the automobile to stop. "eein' that the pon( asapparentl( 0uiet, the defendant, instead of veerin' to the ri'ht hile (et some distance aa( or sloin'don, continued to approach directl( toard the horse ithout diminution of speed. 7hen he had'otten 0uite near, there bein' then no possibilit( of the horse 'ettin' across to the other side, thedefendant 0uicl( turned his car sufficientl( to the ri'ht to escape hittin' the horse alon'side of therailin' here it as then standin'8 but in so doin' the automobile passed in such close pro6imit( to theanimal that it became fri'htened and turned its bod( across the brid'e ith its head toard the railin'.

In so doin', it as struc on the hoc of the left hind le' b( the flan'e of the car and the lim broen. +he horse fell and it s rider as thron off ith some violence. !rom the evidence addthe case e believe that hen the accident occurred the free space here the pon( stood betautomobile and the railin' of the brid'e as probabl( less than one and one half meters. As a rits in#uries the horse died. +he plaintiff received contusions hich caused temporar( unconsciand re0uired medical attention for several da(s.

+he 0uestion presented for decision is hether or not the defendant in maneuverin' his carmanner above described as 'uilt( of ne'li'ence such as 'ives rise to a civil obli'ation to redama'e done8 and e are of the opinion that he is so liable. As the defendant started across the

he had the ri'ht to assume that the horse and the rider ould pass over to the proper side8 bumoved toard the center of the brid'e it as demonstrated to his e(es that this ould not be dohe must in a moment have perceived that it as too late for the horse to cross ith safet( in fronmovin' vehicle. In the nature of thin's this chan'e of situation occurred hile the automobile some distance aa(8 and from this moment it as not lon'er ithin the poer of the plaintiff to bein' run don b( 'oin' to a place of 'reater safet(. +he control of the situation had thenentirel( to the defendant8 and it as his dut( either to brin' his car to an immediate stop or, seeithere ere no other persons on the brid'e, to tae the other side and pass sufficientl( far aa( fhorse to avoid the dan'er of collision. Instead of doin' this, the defendant ran strai'ht on untilalmost upon the horse. 1e as, e thin, deceived into doin' this b( the fact that the horse hade6hibited fri'ht. But in vie of the non nature of horses, there as an appreciable ris thaanimal in 0uestion as unac0uainted ith automobiles, he mi'ht 'et e6ited and #ump unconditions hich here confronted him. 7hen the defendant e6posed the horse and rider to thishe as, in our opinion, ne'li'ent in the e(e of the la.

+he test b( hich to determine the e6istence of ne'li'ence in a particular case ma( be stfollos9 id the defendant in doin' the alle'ed ne'li'ent act use that person ould have usedsame situation: If not, then he is 'uilt( of ne'li'ence. +he la here in effect adopts the stsupposed to be supplied b( the ima'inar( conduct of the discreet paterfamilias of the Roman lae6istence of ne'li'ence in a 'iven case is not determined b( reference to the personal #ud'menactor in the situation before him. +he la considers hat ould be recless, blameorth(, or nein the man of ordinar( intelli'ence and prudence and determines liabilit( b( that.

+he 0uestion as to hat ould constitute the conduct of a prudent man in a 'iven situation mcourse be ala(s determined in the li'ht of human e6perience and in vie of the facts involve particular case. Abstract speculations cannot here be of much value but this much can be prsaid9 Reasonable men 'overn their conduct b( the circumstances hich are before them or nthem. +he( are not, and are not supposed to be, omniscient of the future. 1ence the( can be e

to tae care onl( hen there is somethin' before them to su''est or arn of dan'er. Could a man, in the case under consideration, foresee harm as a result of the course actuall( pursued: Ias the dut( of the actor to tae precautions to 'uard a'ainst that harm. Reasonable foresi'ht ofolloed b( i'norin' of the su''estion born of this prevision, is ala(s necessar( before ne'can be held to e6ist. "tated in these terms, the proper criterion for determinin' the e6istne'li'ence in a 'iven case is this9 Conduct is said to be ne'li'ent hen a prudent man in the pof the tortfeasor ould have foreseen that an effect harmful to another as sufficientl( probarrant his fore'oin' conduct or 'uardin' a'ainst its conse0uences.



Appl(in' this test to the conduct of the defendant in the present case e thin that ne'li'ence is clearl(established. A prudent man, placed in the position of the defendant, ould in our opinion, havereco'ni;ed that the course hich he as pursuin' as frau'ht ith ris, and ould therefore haveforeseen harm to the horse and the rider as reasonable conse0uence of that course. *nder thesecircumstances the la imposed on the defendant the dut( to 'uard a'ainst the threatened harm.

It 'oes ithout sa(in' that the plaintiff himself as not free from fault, for he as 'uilt( of antecedentne'li'ence in plantin' himself on the ron' side of the road. But as e have alread( stated, thedefendant as also ne'li'ent8 and in such case the problem ala(s is to discover hich a'ent isimmediatel( and directl( responsible. It ill be noted that the ne'li'ent acts of the to parties ere not

contemporaneous, since the ne'li'ence of the defendant succeeded the ne'li'ence of the plaintiff b( anappreciable interval. *nder these circumstances the la is that the person ho has the last fair chanceto avoid the impendin' harm and fails to do so is char'eable ith the conse0uences, ithout referenceto the prior ne'li'ence of the other part(.

+he decision in the case of Res vs. Atlantic, <ulf and Pacific Co. =2 Phil. Rep., $3/> should perhaps be mentioned in this connection . +his Court there held that hile contributo r( ne'li'ence on the partof the person in#ured did not constitute a bar to recover(, it could be received in evidence to reduce thedama'es hich ould otherise have been assessed holl( a'ainst the other part(. +he defendantcompan( had there emplo(ed the plaintiff, as a laborer, to assist in transportin' iron rails from a bar'ein Manila harbor to the compan(?s (ards located not far aa(. +he rails ere conve(ed upon carshich ere hauled alon' a narro trac. At certain spot near the ater?s ed'e the trac 'ave a( b(reason of the combined effect of the ei'ht of the car and the insecurit( of the road bed. +he car asin conse0uence upset8 the rails slid off8 and the plaintiff?s le' as cau'ht and broen. It appeared in

evidence that the accident as due to the effects of the t(phoon hich had dislod'ed one of thesupports of the trac. +he court found that the defendant compan( as ne'li'ent in havin' failed torepair the bed of the trac and also that the plaintiff as, at the moment of the accident, 'uilt( ofcontributor( ne'li'ence in alin' at the side of the car instead of bein' in front or behind. It as heldthat hile the defendant as liable to the plaintiff b( reason of its ne'li'ence in havin' failed to eepthe trac in proper repair nevertheless the amount of the dama'es should be reduced on account of thecontributor( ne'li'ence in the plaintiff. As ill be seen the defendant?s ne'li'ence in that caseconsisted in an omission onl(. +he liabilit( of the compan( arose from its responsibilit( for thedan'erous condition of its trac. In a case lie the one no before us, here the defendant as actuall( present and operatin' the automobile hich caused the dama'e, e do not feel constrained to attemptto ei'h the ne'li'ence of the respective parties in order to apportion the dama'e accordin' to thede'ree of their relative fault. It is enou'h to sa( that the ne'li'ence of the defendant as in this casethe immediate and determinin' cause of the accident and that the antecedent ne'li'ence of the plaintiffas a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant?sanser, to the effect that the sub#ect matter of the action had been previousl( ad#udicated in the courtof a #ustice of the peace. In this connection it appears that soon after the accident in 0uestion occurred,the plaintiff caused criminal proceedin's to be instituted before a #ustice of the peace char'in' thedefendant ith the infliction of serious in#uries =lesiones 'raves>. At the preliminar( investi'ation thedefendant as dischar'ed b( the ma'istrate and the proceedin's ere dismissed. Concedin' that theac0uittal of the defendant at the trial upon the merits in a criminal prosecution for the offense

mentioned ould be res ad#udicata upon the 0uestion of his civil liabilit( arisin' from ne'li'en point upon hich it is unnecessar( to e6press an opinion -- the action of the #ustice of the pdismissin' the criminal proceedin' upon the preliminar( hearin' can have no effect. ="ee *Ban;uela and Ban;uela, $% Phil. Rep., 3@4.>

!rom hat has been said it results that the #ud'ment of the loer court must be reversed, and #uis her rendered that the plaintiff recover of the defendant the sum of to hundred pesos =P&&costs of other instances. +he sum here aarded is estimated to include the value of the horse, e6penses of the plaintiff, the loss or dama'e occasioned to articles of his apparel, and laful intthe hole to the date of this recover(. +he other dama'es claimed b( the plaintiff are rem

otherise of such character as not to be recoverable. "o ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fiser, JJ., c on Jonson, J., reserves his vote.

S#$ara%# O$&'&o'(

MALCOLM, J., concurrin'9

After mature deliberation, I have finall( decided to concur ith the #ud'ment in this case. because of m( understandin' of the la st cl ear chance rule of the la of ne' li'ence as partapplied to automobile accidents. +his rule cannot be invoed here the ne'li'ence of the placoncurrent ith that of the defendant. A'ain, if a traveler hen he reaches the point of collisionsituation to e6tricate himself and avoid in#ur(, his ne'li'ence at that point ill prevent a recoveustice "treet finds as a fact that the ne'li'ent act of the interval of time, and that at the mom plaintiff had no opportunit( to avoid the accident. Conse0uentl(, the last clear chance applicable. In other ords, hen a traveler has reached a point here he cannot e6tricate himsvi'ilance on his part ill not avert the in#ur(, his ne'li'ence in reachin' that position becomcondition and not the pro6imate cause of the in#ur( and ill not preclude a recover(. =Note espAien vs. Metcalf %/%2D, %& Atl., $$&.>




Manila

EN BANC

G.R. No. )2551 S#$%#*+#r ), 195

ALEKO E. LILIUS, or h&*(# a'/ a( 0ar/&a' ad litem o h&( *&'or ch&/, r&%a Mar&a''#

L&&(, a'/ SON!A MARIA LILIUS, plaintiffs-appellees,

vs.MANILA RAILROAD COMPAN3, defendant.LAURA LINDLE3 SUMAN, MANILA 4INE MERCANTS, LTD., ANK OF TE

PILIPPINE ISLANDS AND MANILA MOTOR CO., INC., intervenors-appellants, and4.. 4ATEROUS, M. MARFORI, !ON R. MCFIE, !R., ERLANGER GALINGER, INC.,

PILIPPINE EDUCATION CO., INC., AMILTON RO4N SOE CO., ESTRELLA DEL

NORTE a'/ EASTERN PILIPPINE SIPPING AGENCIES, LTD., intervenors-appellees.

J.!. Ferrier for intervenor"appellant #uman.

Franco and $einoso for intervenor"appellant Manila !ine Mercants, %td.

Feria and %a & for intervenor"appellant 'an( of te )ilippine *slands.

Gibbs and Mc+onoug for intervenor"appellant Manila Motor Co.

arve- and &'rien for plaintiffs"appellees.

Jon $. Mcfie, Jr., in is bealf and for te intervenors"appellees.

GODDARD, J.:

In this case )aura )indle( "human, the Manila 7ine Merchants, )td., the Ban of the PhilippineIslands and the Manila Motor Co., Inc., have appealed from an order of the Court of !irst Instance ofManila fi6in' the de'ree of preference of the claimants and distributin' the proceeds of the #ud'mentof this court in the case of %ilius vs. Manila $ailroad Co. =3/ Phil., 235>, the amount of hich #ud'ment in the sum of P$$,33.&$, includin' interest and costs, as deposited b( the railroadcompan( ith the cler of the loer court in that case. After deductin' the attorne(s? fees in the sum ofP5,&%@.55, hich is not 0uestioned, the net amount in the hands of the cler of the loer court pertainin' to each of the plaintiffs in the ori'inal action is follos9

Aleo E. )ilius P%$,%5%.$$

"on#a Maria )ilius 5,%5.34

Brita Marianne )ilius 4,%&/.5

+here as a total of tent(-ei'ht claimants to these funds, hose claims ere presented and decidedithout ob#ection in the ori'inal case in the loer court.

+he trial court in its order from hich these appeals are taen, alloed9

=a> As a'ainst the sum of P5,%5.34, separatel( aarded to the plaintiff "on#a )ilius, the folclaims or portions thereof in the order stated9

ne-half of the claim of r. 7.1. 7aterous b( virtue of aritten assi'nment of March /, %/$$, b( the said "on#a Maria)ilius to him

P%,3&&.&&

ne-third of the claim of the appellant )aura )indle(

"human b( virtue of a #oint #ud'ement obtained b( her onAu'ust %&, %/$$, in the Case No. 4434 of the Court of !irstInstance of Manila, a'ainst the said "on#a Maria )ilius, Aleo E.)ilius and Brita Marianne )ilius

@@%.%$

ne-third of the claim of the "t. Paul?s 1ospital b(virtue of a #oint ritten assi'nment of "eptember %, %/$$, b(the said "on#a Maria )ilius, Aleo E. )ilius and Brita Marianne)ilius to it

3%5.%/

and the balance of the aard as ordered paid to the said Brita Marianne )ilius, and

=b> As a'ainst the sum of P4,%&/.5, separatel( aarded to the plaintiff Brita Marriane )il

folloin' claims or portions thereof in the order stated9

ne-third of the claim of )aura )indle( "human b( virtue of a #oint #ud'ment obtained b( her on Au'ust %&, %/$$, in Case No.4434 of the Court of !irst Instance of Manila, a'ainst the saidBrita Marianne )ilius, "on#a Maria )ilius and Aleo E. )ilius

P@@%.%$

ne-third of the claim of "t. Paul?s 1ospital b( virtueof a #oint ritten assi'nment of "eptember %, %/$$, b( thesaid Brita Marianne )ilius, "onia Maria )ilius and AleoE. )ilius

3%5.%5

and the balance of the aard as ordered paid to the said Brita Marianne )ilius, and

=c> As a'ainst the sum of P%$,%5%.$$, aarded to the plaintiff Aleo E. )ilius, the folloin' cl portions thereof in the order stated9

+he other half of the claim of r. 7.1. 7aterous b( virtue of thefinal #ud'ement in the o ri'inal case , <.R. No. $/352 P%,3&&.&&



+he claim of r. M. Marfori, b( virtue of the final #ud'ment inthe ori'inal case, <.R. No. $/352 3&.&&

+he claim of ohn R. Mc!ie, r., b( virtue of a ritten assi'nmentto him b( the said Aleo E. )il ius of November %$, %/$% 3&&.&&

+he balance of P%&, /$%.$$ of the #ud'ment pertainin' to the saidAleo E. )ilius as alloed and distributed b( the loer court proportionatel( amon' the folloin' claimants b( vi rtue of theirritten assi'nment of anuar( 2, %/$9

Erlan'er F <alin'er, Inc. $,$24.3&

Philippine Education Co., Inc., $,$/4./4

1amilton Bron "hoe Co. %,525./5

Estrella del Norte %,53&.2@

Eastern F Philippine "hippin' A'encies, )td. 4$.%3

APPEA) ! )A*RA )IN)EG "1*MAN

!irst assi'nments of error9 +he loer court erred in holdin' that r. 7.1. 7aterous and r. M.

Marfori had a claim a'ainst the plaintiff, Aleo E. )ilius superior to the claim of the appellant, )aura)indle( "human, a'ainst him.

ne of the contentions of this appellant under this assi'nment of error is that her claim, havin' beenmade the basis of the plaintiffs? action and of the aard for dama'es, as shon in the ori'inal decisionherein, should constitute, and does constitute a superior lien a'ainst the funds aarded said plaintiffs,to those of an( other claimants, e6cept the to doctors, the hospital and the other nurse, and that as tothe claims of the to doctors, the hospital and the other nurse the claim of this appellant has e0ual preference ith their claims.

+he folloin' items ere made the basis of a part of the #ud'ment for dama'es aarded to the plaintiffs in the ori'inal action a'ainst the Manila Rail road Compan(9

Por honorarios del r. 7aterous =E6hibit N-> P$,&&&.&&

Por la primera cura hecha en el 1ospital de Calauan' =E6hibit N-3> 3&.&&

Por el al0uiler de la ambulancia del 1ospital <eneral =E6hibit N-4> %&.&&

Por la estancia en el 1ospital "aint Paul =E6hibit N-$> $,$33.&&

Por los servicios prestados por la enfermera )aura "human =E6hibit N-@> ,%3@.&&

Por los servisios prestados por la enfermera Ale#andra Alca(a'a=E6hibit N-/> %,43&.&&

Porlos servicios prestados por la enfermera Carmen Hillanueva=E6hibit N-%%> 4&.&&

Por la perdida de la camara foto'rafica, pluma fuente ( lapi; =E6hibit N-%> 4$.&&

Por tra#es daados en el cho0ue %$%.&&

+otal %&,@$3.&&

+he trial court in that case directed the defendant Railroad Compan( to pa( P$,&&& to r. 7and to pa( to r. Marfori P3&, but failed to direct the defendant to pa( the correspondin' sumother persons and entities mentioned in the portion of the decision copied above.

It must be admitted that the amounts due r. 7aterous and the others mentioned is the odecision, includin' the appellant "human, ere all used as a basis for a part of the #ud'ment plaintiffs secured a'ainst the defendants Railroad Compan(.

!rom the fore'oin' it is clear that the claim of this appellant rests upon the same 'round as toctors 7aterous and Marfori. "he as also amon' those ho rendered services to plaintiffs itheir recover from the in#uries received b( them in the accident for hich dama'es ere aardin the case a'ainst the Railroad Compan(. +he fact that the trial court did not direct the deRailroad Compan( to pa( directl( to this appellant the amount of her claim does not modif(aa( ith her e0uitable ri'ht to the same status as that 'iven to the to doctors mentioned aboinevitable conclusion is that the claims of 7aterous and Marfori have no preference over her clher services as a nurse. +his assi'nment of error should be and is hereb( sustained.

+his appellant in her second assi'nment of error contends that the trial court erred in failin' ther claim in the sum of P@%./4 as costs in the case in hich #ud'ment as rendered in hea'ainst the herein plaintiffs-appellees. +he record shos that the reason for the disalloanceitem as because no proof as offered as to the amount of such costs. +he onl( thin' appearintranscript on this point is the statement of counsel that the amount of costs in case No. 4434, as

b( the bill of costs, as P@l./4. Rule $5 of the Revised Rules of Courts of !irst Instance re0uire. . costs shall be ta6ed b( the cler on five da(s? ritten notice 'iven b( the prevailin' part(adverse part(, ith hich notice 'iven b( the prevailin' part(, verified b( his oath or thatattorne(, shall be served. . . . +he proper evidence, therefore, of the costs in that case ould hathe bill of costs and the ta6ation of such costs b( the cler. In order to recover such costs in a s proceedin', such as this, evidence must be presented as to the amount of the same. As there



evidence offered in this case as to the amount of said costs, the loer court as correct in disalloin'that item. +his assi'nment of error is overruled.

*nder her third assi'nment of error this appellant contends =%> that the funds separatel( aarded theife, "on#a Maria )ilius, partae of the nature of con#u'al propert(, at least to the e6tent of the sum ofP5&& aarded to her as interest on the principal aard of P%&,&&& made in her favor b( the trial court,and as such should respond for the support of the famil(, includin' medical e6penses and => that evenassumin' that the sums aarded separatel( to "on#a Maria )ilius are not con#u'al propert(, but heron paraphernal propert(, still under the provisions of the Civil Code pa(ment ma( be re0uired out ofsaid funds, her husband bein' insolvent, under her liabilit( for the medical e6penses incurred b( herhusband, one of the obli'ations imposed b( la upon the ife.

+he second contention under this assi'nment of error can be disposed of b( callin' attention to the factthat there is no proof in this case that her husband is insolvent. It has not been proved that Aleo E.)ilius had no other propert( outside of the sum aarded to him in the case a'ainst the RailroadCompan(.

APPEA) ! +1E MANI)A 7INE MERC1AN+", )+., AN +1E BANJ ! +1E P1I)IPPINEI")AN".

+he appellants, the Manila 7ine Merchants. )td., and the Ban of the Philippine islands also contendthat the sum separatel( aarded "on#a Maria )ilius is con#u'al propert( and therefore liable for the pa(ment of the private debts of her husband, Aleo E. )ilius, contracted durin' her marria'e.

it is contended that the dama'es aarded for personal in#ur( are not classified as separate propert( ofeach of the spouses in article %$/@ of the Civil Code and the( should therefore be resumed con#u'al. Inanser to this, article %4&% of the same Code, in enumeratin' the propert( belon'in' to the con#u'al partnership, does not mention dama'es for personal in#ur(.

+he 0uestion raised b( these appellants is one of first impression in this #urisdiction and apparentl( hasnever been passed upon b( the "upreme Court of "pain.

+he folloin' comment is found in Colin ( Capitant, Hol. @, pa'es %2 and %59

No esta resuelta e6presamente en la le'islacion espaKLKola la cuestion de si las indemni;acionesdebidas por accidentes del traba#o tienen la consideracion de 'ananciales o son bienes particulares delos con(u'es.

Inclinan a la solucion de 0ue estas indemni;aciones deben ser consideradas como 'ananciales, elhecho de 0ue la sociedad pierde la capacidad de traba#o con el accidente, 0ue a ella le pertenece, puesto0ue de la sociedad son los frutos de ese traba#o8 en cambio, la consideracion de 0ue de i'ual manera0ue los bienes 0ue sustitu(en a los 0ue cada con(u'e lleva al matrimonio como propios tienen elcaracter de propios, hace pensar 0ue las indemni;aciones 0ue ven'an a suplir la capacidad de traba#oaportada por cada con(u'e a la sociedad, deben ser #uridicamente reputadas como bienes propios del

con(u'e 0ue ha(a sufrido el accidente. Asi se Ile'a a la misma solucion aportada por la #urisprufrancesa..

!rom the above it appears that there are to distinct theories as to hether dama'es risin' fin#ur( suffered b( one of the spouses should be considered con#u'al or separate propert( of thespouse. +he theor( holdin' that such dama'es should form part of the con#u'al partnership pro based holl( on the proposi tion, also advanced b( the Manila 7ine Merchants, )td., that b( ththe earnin' capacit( of the in#ured spouse is diminished to the conse0uent pre#udice of the c partnership.

Assumin' the correctness of this theor(, a readin' of the decision of this court in <. R. No. $/3sho that the sum of P%&,&&& as aarded to "on#a Maria )ilius b( a( of indemnit( for patrand moral dama'es. +he pertinent part of that decision on this point reads9

+ain' into consideration the fact that the plaintiff "on#a Maria )ilius, ife of the plaintiff A)ilius is-in the lan'ua'e of the court, hich sa her at the trial (oun' and beautiful and the bhich she has on her forehead caused b( the lacerated ound received b( her from the acdisfi'ures her face and that the fracture of her left le' has caused a permanent deformit( hich rit ver( difficult for her to al?, and tain' into further consideration her social standin', neithesum of P%&,&&&, ad#udicated to her b( the said trial court b( a(, of indemnit( for patrimonmoral dama'es, e6cessive..

It should be added that the interest on that sum is part of the dama'es patrimonial and moral ato "on#a Maria )ilius.

!urthermore it appears in the decision of the trial court in <. R. No. $/352 that Aleo E. )ilius the sum of P%&,&&& as dama'es on account of the loss of the services of "on#a Maria )ilius as seand translator, her particular or as a member of the con#u'al partnership. +he trial court disathis claim and neither of the plaintiffs in that case appealed to this court.

In vie of the fore'oin' it is held that the sum of P%&,&&& ith interest thereon aarded toMaria )ilius as dama'es is paraphernal propert(.

+he third assi'nment of error of the appellant "human, the second assi'nment of error of the apBan of the Philippine Islands and the sole assi'nment of error of the appellant ManilMerchants, )td., are overruled.

In its first assi'nment of error it is contended b( the Ban of the Philippines Islands that b( virturit of 'arnishment served on the Manila Railroad Compan( of !ebruar( 5, %/$$, it ac0uiredsuperior to the preference 'ranted b( article %/4 of the Civil Code to prior #ud'ments. +his errall, is hoever non-pre#udicial as the record shos that all the creditors declared b( the court asa ri'ht to participate in the proceeds of the #ud'ment in favor of Aleo E. )ilius ere so held bof deeds of assi'nment e6ecuted prior to the date of the service of notice of the ban?s 'arnishment on the Manila Railroad Compan(. +hese creditors are ohn R. Mc!ie, #r., hose c based on a deed of assi'nment dated November %$, %/$%, and Erlan'er F <alin'er, Ph



Education Co., Inc., 1amilton Bron "hoe Co., Estrella del Norte and Eastern F Philippine "hippin'A'encies, )td., hose claims are based on a deed of assi'nment dated November %2, %/$%. As therecord shos that hatever as left of the #ud'ment in favor of Aleo E. )ilius is not sufficient to pa(in full the credits of the above mentioned creditors and furthermore, in vie of the fact that strictl(speain', there as no e6istin' credit in favor of Aleo E. )ilius to be 'arnished on !ebruar( $, %/$$,as it had been assi'ned, before that date, to his creditors, this assi'nment of error, therefore, must beoverruled.

APPEA) ! +1E +1E MANI)A M+R C., INC.

+he to error assi'ned b( this appellant read as follos9

I. +he loer court erred in considerin' the date of the date #ud'ment, E6hibit A, Manila Motor Co.,Inc., instead of the date of the public document upon hich it as based in determinin' the preferenceamon' the several claims filed and liti'ated in this proceedin'.

ll. +he loer court erred in not holdin' the claim of the claimant-appellant, Manila Motor Co., Inc., preferred over all other claims a'ainst Aleo E. )ilius evidenced b( public instruments and final #ud'ments..

+he claimant has not proven that its credit is evidenced b( a public document ithin the meanin' ofarticle %/4 of the Civil Code. +he onl( evidence offered b( the Manila Motor Co., Inc., in support ofits claim of preference a'ainst the fund of Aleo E. )ilius as a certified cop( of its #ud'ment a'ainsthim in civil case No. 4%%3/ of the Court of !irst Instance of Manila, to'ether ith a certified cop( of

the rit of e6ecution and the 'arnishment issued b( virtue of said #ud'ment. +hese documents appearin the record as E6hibits A, B and C. +he alle'ed public document evidencin' its claim as not offeredin evidence and counsel of the Manila Motor Co., Inc., merel( stated at the hearin' in the loer courtthat its #ud'ment as based on a public document dated Ma( %&, %/$%. +here is no e6planation as toh( it as not presented as evidence alon' ith E6hibits A, B, and C. In their brief in this court,counsel for the Motor Co., Inc., merel( assume that its credit is evidenced b( a public document datedma( %&, %/$%, because the court, in its #ud'ment in said civil case No. 4%%3/, refers to a mort'a'eappearin' in the evidence as E6hibit A, as the basis of its #ud'ment, ithout mentionin' the date of thee6ecution of the e6hibit. +his reference in said #ud'ment to a mort'a'e is not competent or satisfactor(evidence as a'ainst third persons upon hich to base a findin' that the Manila Motor Compan(?s creditevidenced b( a public document ithin the meanin' of article %/4 of the Civil Code. +his court is notauthori;ed to mae use of that #ud'ment as a basis for its findin's of fact in this proceedin'. +his isshon b( the decision of this court in the case of Martine; vs. i;a /& Phil., 4/5>. In that s(llabus ofthat decision it is stated9

%. C*R+" ! !IR"+ IN"+ANCE8 *<MEN+ IN !RMER CIHI) AC+IN A" BA"IC !R!ININ<" ! !AC+8 ERRR.-A person ho as not a part( to a former civil action, or ho did notac0uire his ri'hts from one of the parties thereto after the entr( of #ud'ment therein, is not bound b(such #ud'ment8 nor can it be used a'ainst him as a basis for the findin's of fact in a #ud'ment renderedin a subse0uent action..

But even if the court is authori;ed to accept the statement in that #ud'ment as a basis for its finfact in relation to this claim, still it ould not establish the claim of preference of the ManilaCo., Inc. <rantin' that a mort'a'e e6isted beteen the Manila Motor Co., Inc., and Aleo Ethis does not arrant the conclusion that the instrument evidencin' that mort'a'e is a public doentitled to preference under article %/4 of the Civil Code. *nder section 3 of Act No. %amended b( Act No. 4/@, a chattel does not have to be acnoled'e before a notar( puba'ainst creditors and subse0uent encumbrances, the la does re0uire an affidavit of 'ooappended to the mort'a'e and recorded ith it. ="ee <iberson vs. A. N. ureidini Bros., 44 Phiand Betita vs. <an;on, 4/ Phil., 52.> A chattel mort'a'e ma(, hoever, be valid as beteen theithout such an affidavit of 'ood faith. In %% Corpus uris, 45, the rule is e6pressl( stated beteen the parties and as to third persons ho have no ri'hts a'ainst the mort'a'or, no affid

'ood faith is necessar(. It ill thus be seen that under the la, a valid mort'a'e ma( e6ist bet parties ithout its bein' evidenced b( a public document. +his court ould not be #ustified, from the reference b( the loer court in that case to a mort'a'e, in assumin' that its date appe public document. if the Man ila motor Co., Inc., desired to rel( upon a public document in the fomort'a'or as establishin' its preference in this case, it should have offered that document in evso that the court mi'ht satisf( itself as to its nature and un0uestionabl( fi6 the date of its e6e+here is nothin' either in the #ud'ment relied upon or in the evidence to sho the date mort'a'e. +he burden as upon the claimant to prove that it actuall( had a public Code. It is ethat the nature and the date of the document be established b( competent evidence before the coallo a preference as a'ainst the other parties to this proceedin'. Inasmuch as the claimant festablish its preference, based on a public document, the loer court properl( held that ita'ainst the said Aleo E. )ilius as based on the final #ud'ment in civil case No. 4%%3/ of the C!irst Instance of Manila of Ma( $, %/$. +he court, therefore, committed no error in holdin' claim of the Manila Motor Co., Inc., as inferior in preference to those of the appellees in this ca

+his appellant?s assi'nments of error are overulled.

In vie of the fore'oin' the folloin' portion of the dispositive part of the decision of the trial affirmed.

Por estas consideraciones, se ordena ( se decreta =a> 0ue del saldo de P5,%/.34, 0ue pert"on#a Maria )Illius ( 0ue se halla depositado en la Escribana del u;'ado, se pa'ue po el Escrir. 7. 1. 7aterous la suma de mil 0uinientos pesos =P%,3&&>, a )aura ). "human, seiscientos ( un pesos con trece centavos =P@@%.%$, ( al "t. Paul?s 1ospital, 0uinientos die; ( ocho pesos c( ocho centavos =P3%5.%5>, ( el remanente de cinco mil cuatrocientos setenta ( siete pesveinticuatro centavos =P3,422.4>, a "on#a Maria )ililus, o su apoderado8 =b> 0ue del saP4,%&/.5 0ue pretence a Brita Marianne )ilius ( 0ue se halla deposito en la Escribania del u;' pa'ue por el Escribano a )aura "human, la suma de seicientos sesenta ( un pesos con trece c=P@@%.%$>8 ( al "t. Paul?s 1ospital, 0uinientos die; ( ocho pesos con die; ( ocho centavos =P3%( el sado de dos mil ochocientos sesenta ( siete pesos con noventa ( siete centavos =P,5@2./2>Marianne )ilius, por conducto de su tutor8.

+he remainin' portion of the dispositive part of the decision of the trial court is modified as follo



+hat from the sum of P%$,%5%.$$ pertainin' to Aleo E. )ilius, hich is deposited ith the cler ofthe trial court, the folloin' claims shall first be paid9

r. 7.1. 7aterous P%,3&&.&&

r. M. Marfori 3&.&&

)aura )indle( "human @@%.%$

ohn R. Mc!ie, r. 3&&.&&

and the balance of the sum pertainin' to Aleo E. )ilius shall be divided amon' the folloin' entitiesin proportion to their respective claims9

Amount of claim

Erlan'er F <alin'er, Inc. P$,@2.2@

Philippine Education Co., Inc. $,@/3.&

1amilton-Bron "hoe Co. &43.&&

Estrella del Norte ,&%4.43

Eastern and Philippine "hippin' A'encies, )td. 42&.$5

"o ordered ithout special pronouncement as to costs.

Malcolm, /illa"$eal, *mperial, and 'utte, JJ., concur.

+he )aphil Pro#ect - Arellano )a !oundation




Manila

!IR"+ IHI"IN

G.R. No. L-40570 January 30, 1976

TEODORO C. UMAL, petitioner,vs.

!ON. ANGEL "ACAN, #n $#% &a'a&#(y a% )r*%#+#n Ju+* o "ran&$ o ($* Cour( o/#r%( n%(an&* o )ana%#nan an+ /DEL !. ANE, respondents.

Julia M. Armas for petitioner.

Antonio de los Reyes for private respondent.

EGUERRA, J.:

Petition for certiorari to review the decision of the Court of First Instance of PangasinanBranch IX, in Civil Case No. U242, entitled, !Fidel ". #a$nes, plaintiff%appellee versus

&eodoro C. U'ali, defendant%appellant!, which found the death ($ electrocution of )anuel#a$nes, a (o$ of * $ears and + 'onths, as !due to the fault or negligence of the defendantU'ali- as owner and 'anager of the lcala /lectric Plant!, although the lia(ilit$ of defendantis 'itigated ($ the contri(utor$ negligence of the parents of the (o$ !in not providing for theproper and delegate supervision and control over their son &he dispositive part of thedecision reads as follows0

1herefore, the Court here($ renders udg'ent in favor of the plaintiff ($ordering the defendant to pa$ to the plaintiff the su' of Five &housand PesosP3,.- for the death of his son, )anuel #a$nes5 the su' of 6ne&housand &wo "undred Pesos P,2.- for actual e7penses for and inconnection with the (urial of said deceased child, and the further su' of&hree &housand Pesos P*,.- for 'oral da'ages and Five "undredP3.- Pesos as reasona(le attorne$8s fee, or a total of Nine &housand

#even "undred P9,:.- Pesos, and to pa$ the costs of this suit. It Is #o6rdered.

Undisputed facts appearing of record are0

6n )a$ 4, 9:2, a stor' with strong rain hit the )unicipalit$ of lcalaPangasinan, which started fro' 20 o8cloc; in the afternoon and lasted up to

a(out 'idnight of the sa'e da$. <uring the stor', the (anana standing on an elevated ground along the (arrio road in #an Pedro Ili 'unicipalit$ and near the trans'ission line of the lcala /lectric Plan(lown down and fell on the electric wire. s a result, the live electric wcut, one end of which was left hanging on the electric post and the otto the ground under the fallen (anana plants.

6n the following 'orning, at a(out 90 o8cloc; (arrio captain =ucianoof #an Pedro Iii who was passing ($ saw the (ro;en electric wire andwarned the people in the place not to go near the wire for the$ 'ight g"e also saw Cipriano Baldo'ero, a la(orer of the lcala /lectric Planthe place and notified hi' right then and there of the (ro;en line andhi' to fi7 it, (ut the latter told the (arrio captain that he could not dothat he was going to loo; for the line'an to fi7 it.

#o'eti'e after the (arrio captain and Cipriano Baldo'ero had left thea s'all (o$ of * $ears and + 'onths old ($ the na'e of )anuel P. #whose house is ust on the opposite side of the road, went to the placethe (ro;en line wire was and got in contact with it. &he (o$ was electrand he su(se>uentl$ died. It was onl$ after the electrocution of )#a$nes that the (ro;en wire was fi7ed at a(out 0 o8cloc; on the'orning ($ the line'an of the electric plant.

Petitioner clai's that he could not (e lia(le under the concept of >uasi%delict or tort asand 'anager of the lcala /lectric Plant (ecause the pro7i'ate cause of the (o$8selectrocution could not (e due to an$ negligence on his part, (ut rather to a fortuitous the stor' that caused the (anana plants to fall and cut the electric line%pointing oa(sence of negligence on the part of his e'plo$ee Cipriano Baldo'ero who tried to haline repaired and the presence of negligence of the parents of the child in allowing leave his house during that ti'e.

careful e7a'ination of the record convinces Us that a series of negligence on the defendants8 e'plo$ees in the lcala /lectric Plant resulted in the death of the vicelectrocution. First, ($ the ver$ evidence of the defendant, there were (ig and tall (plants at the place of the incident standing on an elevated ground which were a(out *high and which were higher than the electric post supporting the electric line, and e'plo$ees of the defendant who, with ordinar$ foresight, could have easil$ seen that ecase of 'oderate winds the electric line would (e endangered ($ (anana plants (eingdown, did not even ta;e the necessar$ precaution to eli'inate that source of dangerelectric line. #econd, even after the e'plo$ees of the lcala /lectric Plant were aaware of the possi(le da'age the stor' of )a$ 4, 9:2, could have caused their elines, thus (eco'ing a possi(le threat to life and propert$, the$ did not cut off fro' thethe flow of electricit$ along the lines, an act the$ could have easil$ done pending inspecthe wires to see if the$ had (een cut. &hird, e'plo$ee Cipriano Baldo'ero was negligthe 'orning of the incident (ecause even if he was alread$ 'ade aware of the live cuhe did not have the foresight to reali?e that the sa'e posed a danger to life and proper



that he should have ta;en the necessar$ precaution to prevent an$(od$ fro' approaching thelive wire5 instead Baldo'ero left the pre'ises (ecause what was fore'ost in his 'ind wasthe repair of the line, o(viousl$ forgetting that if left unattended to it could endanger life andpropert$.

6n defendants8 argu'ent that the pro7i'ate cause of the victi'8s death could (e attri(uted tothe parents8 negligence in allowing a child of tender age to go out of the house alone, 1ecould readil$ see that (ecause of the afore'entioned series of negligence on the part ofdefendants8 e'plo$ees resulting in a live wire l$ing on the pre'ises without an$ visi(lewarning of its lethal character, an$(od$, even a responsi(le grown up or not necessaril$ aninnocent child, could have 'et the sa'e fate that (efell the victi'. It 'a$ (e true, as thelower Court found out, that the contri(utor$ negligence of the victi'8s parents in not properl$ta;ing care of the child, which ena(led hi' to leave the house alone on the 'orning of theincident and go to a near($ place cut wire was ver$ near the house where victi' was living-where the fatal fallen wire electrocuted hi', 'ight 'itigate respondent8s lia(ilit$, (ut wecannot agree with petitioner8s theor$ that the parents8 negligence constituted the pro7i'atecause of the victi'8s death (ecause the real pro7i'ate cause was the fallen live wire whichposed a threat to life and propert$ on that 'orning due to the series of negligence adverted toa(ove co''itted ($ defendants8 e'plo$ees and which could have ;illed an$ other personwho 'ight ($ accident get into contact with it. #tated otherwise, even if the child was allowedto leave the house unattended due to the parents8 negligence, he would not have died that'orning where it not for the cut live wire he accidentall$ touched.

rt. 2:9 of the Civil Code provides that if the negligence of the plaintiff parents of the victi'in this case- was onl$ contri(utor$, the i''ediate and pro7i'ate cause of the inur$ (eing the

defendants8 lac; of due care, the plaintiff 'a$ recover da'ages, (ut the courts shall 'itigatethe da'ages to (e awarded. &his law 'a$ (e availed of ($ the petitioner (ut does note7e'pt hi' fro' lia(ilit$. Petitioner8s lia(ilit$ for inur$ caused ($ his e'plo$ees negligence iswell defined in par. 4, of rticle 2+ of the Civil Code, which states0

&he owner and 'anager of an esta(lish'ent or enterprise are li;ewiseresponsi(le for da'ages caused ($ their e'plo$ees in the service of the(ranches in which the latter are e'plo$ed or on tile occasion of theirfunctions.

&he negligence of the e'plo$ee is presu'ed to (e the negligence of the e'plo$er (ecausethe e'plo$er is supposed to e7ercise supervision over the wor; of the e'plo$ees. &hislia(ilit$ of the e'plo$er is pri'ar$ and direct #tandard @acuu' 6il Co. vs. &an and Court of

ppeals, : Phil. 9-. In fact the proper defense for the e'plo$er to raise so that he 'a$escape lia(ilit$ is to prove that he e7ercised, the diligence of the good father of the fa'il$ toprevent da'age not onl$ in the selection of his e'plo$ees (ut also in ade>uatel$ supervisingthe' over their wor;. &his defense was not ade>uatel$ proven as found ($ the trial Court,and 1e do not find an$ sufficient reason to deviate fro' its finding.

Notwithstanding diligent efforts, we fail to fired an$ reversi(le error co''itted ($ thCourt in this case, either in its appreciation of the evidence on >uestions of facts or interpretation and application of laws govern'ent >uasi%delicts and lia(ilities e'atherefro'. &he inevita(le conclusion is that no error a'ounting to grave a(use of diswas co''itted and the decision 'ust (e left untouched.

1"/A/F6A/, the decision of respondent Court dated une 2:, 9:4 is affir'ed.

Costs against petitioner.

#6 6A</A/<.

Teehankee (Chairman), Makasiar, Muño !alma and Martin, JJ., concur.




Manila

EN BANC

G.R. No. L-21291 March 28, 1969

PRECIOLITA 7. CORLISS, plaintiff-appellant,vs.

TE MANILA RAILROAD CO., defendant-appellant.

Moises C. 0icomedes for plaintiff"appe llant.

Te Government Corporate Counsel for defendant"appellee.

FERNANDO, J.:

Gouth, the threshold of life, is invariabl( accompanied b( that euphoric sense of ell-bein',and ith reason. +he future, bri'ht ith promise, looms ahead. ne?s poers are still to be tested, butone feels read( for hatever challen'e ma( come his a(. +here is that head( atmosphere of self-confidence, at times carried to e6cess. +he temptation to tae riss is there, ever so often, difficult, ifnot impossible, to resist. +here could be then a lessenin' of prudence and foresi'ht, 0ualities usuall(associated ith a'e. !or death seems so remote and contin'ent an event. "uch is not ala(s the casethou'h, and a slip ma( be attended ith conse0uences at times unfortunate, even fatal.

"ome such thou'ht apparentl( as in the mind of the loer court hen it dismissed thecomplaint for recover( of dama'es filed b( plaintiff-appellant, Preciolita H. Corliss hose husband,the late Ralph 7. Corliss, as, at the tender a'e of tent(-one, the victim of a 'rim tra'ed(, hen the #eep he as drivin' collided ith a locomotive of defendant-appe llee Manila Railroad Compan(, closeto midni'ht on the evenin' of !eb %, %/32, at the railroad crossin' in Baliba'o, An'eles, Pampan'a,in front of the Clar Air !orce Base. In the decision appealed from, the loer court, after summari;in'the evidence, concluded that the deceased in his ea'erness to beat, so to spea, the oncomin'locomotive, too the ris and attempted to reach the other side, but unfortunatel( he became the victimof his on miscalculation. %

+he ne'li'ence imputed to defendant-appellee as thus ruled out b( the loer court,satisfactor( proof to that effect, in its opinion, bein' lacin'. 1ence this appeal direct to us, the amountsou'ht in the concept of dama'es reachin' the sum of P5,&@3.4&. An e6amination of the evidence ofrecord fails to (ield a basis for a reversal of the decision appealed from. 7e affirm.

Accordin' to the decision appealed from, there is no dispute as to the folloin'9 In ecember%/3@, plaintiff, %/ (ears of a'e, married Ralph 7. Corli ss r., % (ears of a'e, ...8 that Corliss r. asan air police of the Clar Air !orce Base8 that at the time of the accident, he as drivin' the fatal #eep8that he as then returnin' in said #eep, to'ether ith a P.C. soldier, to the Base8 and that Corliss r.

died of serious burns at the Base 1ospital the ne6t da(, hile the soldier sustained serious pin#uries and burns.

+hen came a summar( of the testimon( of to of the itnesses for plaintiff-appellanRonald . Ennis, a itness of the plaintiff, substantiall( declared in his deposition, ..., that at tof the accident, he also aaitin' transportation at the entrance of Clar !ield, hich as about 4(ards aa( from the tracs and that hile there he sa the #eep comin' toards the Base. 1e sasaid #eep sloed don before reachin' the crossin', that it made a brief stop but that it did not dead stop. Elaboratin', he declared that hile it as sloin' don, Corliss r. shifted into fiand that as hat he meant b( a brief stop. 1e also testified that he could see the train cominthe direction of "an !ernando and that he heard a arnin' but that it as not sufficient enou'h tthe accident. $ Also9 Hir'ilio de la Pa;, another itness of the plaintiff, testified that on the n!ebruar( %, %/32, he as at the Baliba'o checpoint and sa the train comin' from An'ele #eep 'oin' toards the direction of Clar !ield. 1e stated that he heard the histle of the locoand sa the collision. +he #eep, hich cau'ht fire, as pushed forard. 1e helped the P.C. soldstated that he sa the #eep runnin' fast and heard the tootin' of the horn. It did not stop at the crossin', accordin' to him. 4

After hich reference as made to the testimon( of the main itness for defendant-a+eodorico Capili, ho as at the en'ine at the time of the mishap, and ho testified that belocomotive, hich had been previousl( inspected and found to be in 'ood condition approachcrossin', that is, about $&& meters aa(, he ble the siren and repeated it in compliance re'ulations until he sa the #eep suddenl( spurt and that althou'h the locomotive as runnin' b& and 3 ilometers an hour and althou'h he had applied the braes, the #eep as cau'htmiddle of the tracs. 3

%. +he above findin' as to the non-e6istence of ne'li'ence attributable to defendant-aManila Railroad Compan( comes to us encased in the armor of hat admittedl( appears to be a #udicial appraisal and scrutin( of the evidence of record. It is thus proof a'ainst an( attacsustained and overhelmin'. Not that it is invulnerable, but it is liel( to stand firm in the face the most formidable barra'e.

In the more traditional terminolo'(, the loer court #ud'ment has in its favor the presuof correctness. It is entitled to 'reat respect. After all, the loer court had the opportunit( of ecarefull( hat as testified to and apparentl( did not ne'lect it. +here is no affront to #ustice thefindin' be accorded acceptance sub#ect of course the contin'enc( of reversal if error orsubstantial in character, be shon in the conclusion thus arrived at. It is a fair statement'overnin', principle to sa( that the appellate function is e6hausted hen there is found to be a basis for the result reached b( the tri al court.

As as held in a %/@% decision9 7e have alread( ruled, that hen the credibilit( of is the one at issue, the trial court?s #ud'ment as to their de'ree of credence deserves consideration b( this Court. @ An earlier e6pression of the same vie is found in Jai"Alai Corp

v. Cing 1iat 9 After 'oin' over the record, e find no reason for re#ectin' the findin's of th belo. +he 0uestions rai sed hin'e on credibil it( and it is ell-settled that in the absence of com



reasons, its determination is best left to the trial #ud'e h( had the advanta'e of hearin' the partiestestif( and observin' their demeanor on the itness stand. 2

In a %/@4 opinion, e adhered to such an approach. +hus9 ?Nothin' in the record su''ests an(arbitrar( or abusive conduct on the part of the trial #ud'e in the formulation of the rulin'. 1isconclusion on the matter is sufficientl( borne out b( the evidence presented. 7e are denied, therefore,the prero'ative to disturb that findin', consonant to the time honored tradition of the +ribunal to holdtrial #ud'es better situated to mae conclusions on 0uestions of fact?. 5 n this 'round alone e canrest the affirmance of the #ud'ment appealed from.l23pi4.ñet

. Nor is the result different even if no such presumption ere indul'ed in and the mattere6amined as if e ere e6ercisin' ori'inal and not appellate #urisdiction. +he sad and deplorablesituation in hich plaintiff-appellant no finds herself, to the contrar( notithstandin' e find noreason for reversin' the #ud'ment of the loer court.

+his action is predicated on ne'li'ence, the Civil Code main' clear that hoever b( act oromission causes dama'e to another, there bein' ne'li'ence, is under obli'ation to pa( for the dama'edone. / *nless it could be satisfactoril( shon, therefore, that defendant-appellee as 'uilt( ofne'li'ence then it could not be held liable. +he crucial 0uestion, therefore, is the e6istence ofne'li'ence.

+he above Civil Code provision, hich is a reiteration of that found in the Civil Code of "pain,formerl( applicable in this #urisdiction, %& had been interpreted in earlier decisions. +hus, in "mith v.Cadallader <ibson )umber Co., %% Manresa as cited to the folloin' effect ?Amon' the 0uestions

most fre0uentl( raised and upon hich the ma#orit( of cases have been decided ith respect to theapplication of this liabilit(, are those referrin' to the determination of the dama'e or pre#udice, and tothe fault or ne'li'ence of the person responsible therefor. +hese are the to indispensable factors inthe obli'ations under discussion, for ithout dama'e or pre#udice there can be no liabilit(, andalthou'h this element is present no indemnit( can be aarded unless arisin' from some person?s faultor ne'li'ence?.

Ne'li'ence as defined b( us in to %/% decisions, *nited "tates v. uanillo % and *nited"tates v. Barias. %$ Coole(? formulation as 0uoted ith approval in both the uanillo and Bariasdecisions. +hus9 ud'e Coole( in his or on +orts =$d ed.>, "ec. %$4, defines ne'li'ence to be9+he failure to observe for the protection of the interests of another person that de'ree of care, precaution and vi'ilance hich the circumstance #ustl( demand hereb( such other person suffersin#ur(. +here as lieise a reliance on Ahern v. re'on +elephone Co. %4 +hus9 Ne'li'ence is antof the care re0uired b( the circumstances. It is a relative or comparative, not an absolute term and its

application depends upon the situation of the parties and the de'ree of care and vi'ilance hich thecircumstances reasonabl( re0uire. 7here the dan'er is 'reat, a hi'h de'ree of care is necessar(, andthe failure to observe it is a ant of ordinar( care under the circumstances.

+o repeat, b( such a test, no ne'li'ence could be imputed to defendant-appellee, and the actionof plaintiff-appellee must necessar( fail. +he facts bein' hat the( are, compel the conclusion that theliabilit( sou'ht to be fastened on defendant-appellee had not arisen.

$. Plaintiff-appellant, in her brief, hoever, ould see a reversal of the #ud'ment afrom on the 'round that there as a failure to appreciate the true situation. +hus the first three aerrors are factual in character. +he third assi'ned error could be summaril( disposed of. It a'ainst the evidence to maintain the vie that the histle as not sounded and the braes not at a distance of $&& meters before reachin' the crossin'.

+he first to assi'ned errors ould mae much of the failure of the loer court to hold crossin' bars not havin' been put don and there bein' no 'uard at the 'ate-house, there stildut( on the part of Corliss to stop his #eep to avoid a collision and that +eodorico Capili, ho dren'ine, as not 0ualified to do so at the time of the accident. !or one cannot #ust sin'circumstance and then confidentl( assi'n to it decisive ei'ht and si'nificance. Considered sep

neither of the to above errors assi'ned ould call for a #ud'ment different in character. Nor combination of acts alle'edl( impressed ith ne'li'ence suffice to alter the result. +he 0uan proof re0uired still not been met. +he alle'ed errors fail of their said effect. +he case for pappellant, such as it had not been improved. +here is no #ustification for reversin' the #ud'menloer court.

It cannot be stressed too much that the decisive considerations are too variable, too depin the lid anal(sis upon a common sense estimate of the situation as it presented itself to the paus to be able to sa( that this or that element havin' been isolated, ne'li'ence is shon. +he factenter the #ud'ment are too man( and diverse for us to imprison them in a formula sufficient of (ield the correct anser to the multi-faceted problems the 0uestion of ne'li'ence poses. Evemust be dependent on its facts. +he circumstances indicative of lac of due care must be #ud'eli'ht of hat could reasonabl( be e6pected of the parties. If the ob#ective standard of prudence then ne'li'ence is ruled out.

In this particular case, it ould be to sho less than fidelit( to the controllin' facts tone'li'ence to defendant-appellee. +he first three errors assi'ned certainl( do not call fconclusion.

4. +he fourth assi'ned error is deservin' of a more e6tended treatment. Plaintiff-apapparentl( had in mind this portion of the opinion of the loer court9 +he ei'ht of authoritthe effect that a railroad trac is in itself a arnin' or a si'nal of dan'er to those ho 'o uponthat those ho, for reasons of their on, i'nore such arnin', do so at their on riresponsibilit(. Corliss r., ho undoubtedl( had crossed the checpoint fre0uentl(, if not dailhave non that locomotive en'ines and trains usuall( pass at that particular crossin' haccident had taen place. %3

1er assi'nment of error, hoever, ould sin'le out not the above e6cerpt from the dappealed from but hat to her is the apparent reliance of the loer court on Mestres v. Manila E

$ailroad 5 %igt Co . %@ and *nited "tates v. Manlabat F Pasibi. %2 In the Manabat case, the dannounced b( this Court follos9 A person in control of an automobile ho crosses a railroad,a re'ular road crossin', and ho does not e6ercise that precaution and that control over it as toto stop the same almost immediatel( upon the appearance of a train, is 'uilt( of criminal ne'l providin' a collision occurs and in#ur( results. Considerin' the purposes and the 'eneral m



adopted for the mana'ement of railroads and railroad trains, e thin it is incumbent upon oneapproachin' a railroad crossin' to use all of his faculties of seein' and hearin'. 1e should approach arailroad crossin' cautiousl( and carefull(. 1e should loo and listen and do ever(thin' that areasonabl( prudent man ould do before he attempts to cross the trac. +he Mestres doctrine in a suitarisin' from a collision beteen an automobile and a street car is substantiall( similar. +hus9 It ma( be said, hoever, that, here a person is nearin' a street crossin' toard hich a car is approachin',the dut( is on the part( to stop and avoid a collision ho can most readil( ad#ust himself to thee6i'encies of the case, and here such person can do so more readil(, the motorman has a ri'ht to presume that such dut( ill be pe rformed.

It is true, as plaintiff-appellant ould no alle'e that there has been a drift aa( from the

apparent ri'id and infle6ible doctrine thus set forth in the to above cases evidenced b( %ilius v. Manila $ailroad Co., %5 the controllin' facts of hich, hoever, are easil( distin'uishable from hathad been correctl( ascertained in the present case. "uch a deviation from the earlier principleannounced is not onl( true of this #urisdiction but also of the *nited "tates.

+his is made clear b( Prosser. "peain' of a %/2 decision b( ustice 1olmes, he had thefolloin' to sa(9 Especiall( noteorth( in this respect is the attempt Mr. ustice 1olmes, inBaltimore F hio Raila( v. <oodman, to ?la( don a standard once for all,? hich ould re0uire anautomobile driver approachin' a railroad crossin' ith an obstructed vie to stop, loo and listen, andif he cannot be sure otherise that no train is comin' to 'et out of the car. +he basic idea behind this issound enou'h9 it is b( no means proper care to cross a railroad trac ithout tain' reasonable precautions a'ainst a train, and normall( such p recautions ill re0uire looin', hearin', and a stop, orat least slo speed, here the vie is obstructed. %/

+hen, barel( seven (ears later, in %/$4, came )a(ora v. !abas $ail3a-, & here, accordin' toProsser, it bein' shon that the onl( effective stop must be made upon the raila( tracs themselves,in a position of obli'ation dan'er, the court disre'arded an( such uniform rule, re#ectin' the ?'et out ofthe car? re0uirement as ?an uncommon precaution, liel( to be futile and sometimes even dan'erous,?and sa(in' that the driver need not ala(s stop. ?Illustrations such as these,? said Mr. ustice Cardo;o?bear itness to the need for caution in framin' standards of behavior that amount to rules of la....E6traordinar( situations ma( not isel( or fairl( be sub#ected to tests or re'ulations that are fittin' forthe commonplace or normal. %

7hat ustice Cardo;o announced ould merel( emphasi;e hat as set forth earlier that eachand ever(, case on 0uestions of ne'li'ence is to be decided in accordance ith the peculiarcircumstances that present themselves. +here can be no hard and fast rule. +here must be thatobservance of that de'ree of care, precaution, and vi'ilance hich the situation demands. +husdefendant-appellee acted. It is undeniable then that no ne'li'ence can ri'htfull( be imputed to it.

7hat commends itself for acceptance is this conclusion arrived at b( the loer court9Predicated on the testimonies of the plaintiff?s itnesses, on the noled'e of the deceased and hisfamiliarit( ith the setup of the checpoint, the e6istence of the tracs8 and on the further fact that thelocomotive had blon its siren or histle, hich as heard b( said itnesses, it is clear that Corliss r.as so sufficientl( arned in advance of the oncomin' train that it as incumbent upon him to avoid a

possible accident and this consisted simpl( in stoppin' hi s vehicle before the crossin' and athe train to move on. A prudent man under similar circumstances ould have acted in this m+his, unfortunatel(, Corliss, r. failed to do.

71ERE!RE, the decision of the loer court of November /, %/@ dismisscomplaint, is affirmed. 7ithout pronouncement as to costs.

Concepcion, C.J., $e-es, J.'.%., +i6on, Ma(alintal, 7aldivar, #ance6, Castro, Capistrano, Tee

and 'arredo, JJ., concur.




Manila

EN BANC

G.R. No. L-2611 No#*+#r , 19

CULION ICE, FIS AND ELECTRIC CO., INC., plaintiff-appellee,vs.

PILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and Mc+onoug for appellant.

'enj. #. &nic( for appellee.

STREET, J.:

+his action as instituted in the Court of !irst Instance of Manila b( the Culion Ice, !ish FElectric Co., Inc., for the purpose of recoverin' from the Philippine Motors Corporation the sum ofP%%,$3&, ith interest and costs. *pon hearin' the cause the trial court 'ave #ud'ment in favor of the plaintiff to recover of the defendant the sum o f P/,53&, ith interest at @ per centum per annum fromMarch 4,%/2, the date of the filin' of the complaint, until satisfaction of the #ud'ment, ith costs.!rom this #ud'ment the defendant appealed.

+he plaintiff and defendant are domestic corporations8 and at the time of the incident ith hiche are here concerned, 1.. Cranston as the representative of the plaintiff in the Cit( of Manila. Atthe same time the plaintiff as the re'istered oner of the motor schooner G3endoline, hich asused in the fishin' trade in the Philippine Islands. In anuar(, %/3, Cranston decided, if practicable, tohave the en'ine on the G3endoline chan'ed from a 'asoline consumer to a crude oil burner, e6pectin'thereb( to effect econom( in the cost of runnin' the boat. 1e therefore made non his desire toMc)eod F Co., a firm dealin' in tractors, and as told b( Mc Jellar, of said compan(, that he mi'htmae in0uiries of the Philippine Motors Corporations, hich had its office on n'pin "treet, in theCit( of Manila. Cranston accordin'l( repaired to the office of the Philippine Motors Corporation andhad a conference ith C.E. uest, its mana'er, ho a'reed to do the #ob, ith the understandin' that pa(ment should be made upon completion of the or.

+he Philippine Motors Corporation as at this time en'a'ed in business as an automobilea'enc(, but, under its charter, it had authorit( to deal in all sorts of machiner( en'ines and motors, asell as to build, operate, bu( and sell the same and the e0uipment therof. uest, as 'eneral mana'er,had full char'e of the corporations in all its branches.

As a result of the aforesaid intervie, uest, in compan( ith Cranston, visited the G3e

hile it la( at anchor in the Pasi' River, and the or of effectin' the chan'e in the en'ine asand conducted under the supervision of uest, chiefl( b( a mechanic hom uest too ith him boat. In this or uest had the assistance of the members of the cre of the G3endoline, been directed b( Cranston to place themselves under uest?s directions.

*pon preliminar( inspection of the en'ine, uest came to the conclusion that the principnecessar( to accomplish the end in vie as to install a ne carburetor, and a Oenith carburechosen as the one most adapted to the purpose. After this appliance had been installed, the en'itried ith 'asoline as a fuel, supplied from the tan alread( in use. +he result of this e6perimsatisfactor(. +he ne6t problem as to introduce into the carburetor the baser fuel, consistin' o

'rade of oil mi6ed ith distillate. !or this purpose a temporar( tan to contain the mi6tu re ason dec above and at a short distance from the compartment coverin' the en'ine. +his taconnected ith the carburetor b( a piece of tubin', hich as apparentl( not ell fitted at thhere it as connected ith the tan. in' to this fact the fuel mi6ture leaed from the tadripped son into the en'ine compartment. +he ne fuel line and that alread( in use bet'asoline tan and carburetor ere so fi6ed that it as possible to chan'e from the 'asoline fuemi6ed fuel. +he purpose of this arran'ement as to enable the operator to start the en'ine on 'and then, after the en'ine had been operatin' for a fe moments, to sitch to the ne fuel la3pil.net

In the course of the preliminar( or upon the carburetor and its connections, it as othat the carburetor as floodin', and that the 'asoline, or other fuel, as triclin' freel( frloer part to the carburetor to the floor. +his fact as called to uest?s attention, but he appethin li'htl( of the matter and said that, hen the en'ine had 'otten to runnin' ell, the fl

ould disappear.

After preliminar( e6periments and ad#ustments had been made the boat as taen out i ba( for a trial run at about 3 p.m. o r a lit tle later, on the evenin' of anuar( $&,%/3. +he firstthe course as covered ithout an( untoard development, other than he fact that the en'ine a fe times, oin' no doubt to the use of an improper mi6ture of fuel. In the course of the t riaremained outside of the en'ine compartment and occupied himself ith main' distillate, ithto ascertainin' hat proportion of the to elements ould 'ive best results in the en'ine.

As the boat as comin' in from this run, at about 29$& p.m. and hen passin' near Caven'ine stopped, and connection a'ain had to be made ith the 'asoline line to 'et a ne starthis had been done the mechanic, or en'ineer, sitched to the tube connectin' ith the ne mi6moment later a bac fire occurred in the c(linder chamber. +his caused a flame to shoot bac carburetor, and instantl( the carburetor and ad#acent parts ere covered ith a mass of flamesthe members of the cre ere unable to subdue. +he( ere therefore compelled, as the fire sptae to a boat, and their escape as safel( effected, but the G3endoline as reduced to a me+he salva'e from, the rec, hen sold, brou'ht onl( the sum of P%3&. +he value of the boatthe accident occured, as the court found, as P%&,&&&.



A stud( of the testimon( lead us to the conclusion that the loss of this boat as char'eable to thene'li'ence and lac of sill of uest. +he temporar( tan in hich the mi6ture as prepared asapparentl( at too 'reat an elevation from the carburetor, ith the result that hen the fuel line asopened, the h(drostatic pressure in the carburetor as 'reater than the delicate parts of the carburetorcould sustain. +his as no doubt the cause of the floodin' of the carburetor8 and the result as that8hen the bac fire occurred, the e6ternal parts of the carburetor, alread( saturated ith 'asoline, burstinto flames, hence the fire as 0uicl( communicated to the hi'hl( inflammable material near-b(.rdinaril( a bac fire from an en'ine ould not be folloed b( an( disaster, but in this case the leaalon' the pipe line and the floodin' of the carburetor had created a dan'erous situation, hich a prudent mechanic, versed in repai rs of this nature, ould have taen precautions to avoid. +he bacfire ma( have been due either to the fact that the spar as too advanced or the fuel improperl( mi6ed.

In this connection it must be remembered that hen a person holds himself out as bein'competent to do thin's re0uirin' professional sill, he ill be held liable for ne'li'ence if he fails toe6hibit the care and sill of one ordinaril( silled in the particular or hich he attempts to do. +he proof shos that uest had had ample e6perience in fi6in' the en'ines of automobiles and t ractors, butit does not appear that he as e6perienced in the doin' of similar or on boats. !or this reason, possibl( the drippin' of the mi6ture form the tan on dec and the floodin' of the carburetor did notconve( to his mind an ade0uate impression of the dan'er of fire. But a person silled in that particularsort of or ould, e thin have been sufficientl( arned from those circumstances to cause him totae 'reater and ade0uate precautions a'ainst the dan'er. In other ords uest did not use the sill thatould have been e6hibited b( one ordinaril( e6pert in repairin' 'asoline en'ines on boats. +here ashere, in our opinion, on the part of uest, a blameorth( antecedent inadvertence to possible harm,and this constitutes ne'li'ence. +he burnin' of the G3endoline ma( be said to have resulted fromaccident, but this accident as in no sense an unavoidable accident. It ould not have occured but for

uest?s carelessness or lac of sill. +he test of liabilit( is not hether the in#ur( as accidental in asense, but hether uest as free from blame.

7e therefore see no escape from the conclusion that this accident is char'eable to lac of sill orne'li'ence in effectin' the chan'es hich uest undertoo to accomplish8 and even supposin' that ourtheor( as to the e6act manner in hich the accident occurred mi'ht appear to be in some respectsincorrect, (et the ori'in of the fire in not so inscrutable as to enable us to sa( that it as casus

fortuitus.

+he trial #ud'e seems to have proceeded on the idea that, inasmuch as uest had control of theG3endoline durin' the e6perimental run, the defendant corporation as in the position of a bailee andthat, as a conse0uence, the burden of proof as on the defendant to e6culpate itself from responsibilit( b( provin' that the accident as not due to the fault of uest. 7e are unable to accede to this point ofvie. Certainl(, uest as not in char'e of the navi'ation of the boat on this trial run. 1is emplo(ment

contemplated the installation of ne parts in the en'ine onl(, and it seems rather strained to hold thatthe defendant corporation had thereb( become bailee of the boat. As a rule ormen ho mae repairson a ship in its oner?s (ard, or a mechanic ho repairs a coach ithout tain' it to his shop, are not bailees, and their ri'hts and liabiliti es are dete rmined b( the 'eneral rules of l a, under their contract.+he true bailee ac0uires possession and hat is usuall( spoen of as special propert( in the chattel bailed. As a conse0uence of such possession and special propert(, the bailee is 'iven a lien for hiscompensation. +hese ideas seem to be incompatible ith the situation no under consideration. But

thou'h defendant cannot be held liable in the supposition that the burden of proof had nosustained b( it in disprovin' the ne'li'ence of its mana'er, e are nevertheless of the opinion t proof shos b( a clear preponderance that the accident to the G3endoline and the dama'es rtherefrom are char'eable to the ne'li'ence or lac of sill of uest.

+his action as instituted about to (ears after the accident in 0uestion had occured, anuest had ceased to be mana'er of the defendant corporation and had 'one bac to the *nited*pon these facts, the defendant bases the contention that the action should be considered stasufficient repl( to sa( that the action as brou'ht ithin the period limited b( the statute of limand the situation is not one here the defense of laches can be properl( invoed.

It results that the #ud'ment appealed from, aardin' dama'es to the plaintiff in the amP/,53&, ith interest, must be affirmed8 and it is so ordered, ith costs a'ainst the appellant.

Avanceña, C.J., Malcolm, /illamor, &strand, $omualde6 and /illa"$eal, JJ., concur.




Manila

EN BANC

G.R. No. L-12191 Oc%o+#r 1), 1918

!OSE CANGCO, plaintiff-appellant,vs.

MANILA RAILROAD CO., defendant-appellee.

$amon #otelo for appellant.

1incaid 5 artigan for appellee.

FISER, J.:

At the time of the occurrence hich 'ave rise to this liti'ation the plaintiff, ose Can'co, as inthe emplo(ment of Manila Railroad Compan( in the capacit( of cler, ith a monthl( a'e of P3. 1elived in the pueblo of "an Mateo, in the province of Ri;al, hich is located upon the line of thedefendant railroad compan(8 and in comin' dail( b( train to the compan(?s office in the cit( of Manilahere he ored, he used a pass, supplied b( the compan(, hich entitled him to ride upon thecompan(?s trains free of char'e. *pon the occasion in 0uestion, anuar( &, %/%3, the plaintiff arosefrom his seat in the second class-car here he as ridin' and, main', his e6it throu'h the door, toohis position upon the steps of the coach, sei;in' the upri'ht 'uardrail ith his ri'ht hand for support.

n the side of the train here passen'ers ali'ht at the "an Mateo station there is a cement platform hich be'ins to rise ith a moderate 'radient some di stance aa( from the compan(?s offi ceand e6tends alon' in front of said office for a distance sufficient to cover the len'th of several coaches.As the train sloed don another passen'er, named Emilio Oui'a, also an emplo(ee of the railroadcompan(, 'ot off the same car, ali'htin' safel( at the point here the platform be'ins to rise from thelevel of the 'round. 7hen the train had proceeded a little farther the plaintiff ose Can'co stepped offalso, but one or both of his feet came in contact ith a sac of atermelons ith the result that his feetslipped from under him and he fell violentl( on the platform. 1is bod( at once rolled from the platformand as dran under the movin' car, here his ri'ht arm as badl( crushed and lacerated. It appearsthat after the plaintiff ali'hted from the train the car moved forard possibl( si6 meters before it cameto a full stop.

+he accident occurred beteen 2 and 5 o?cloc on a dar ni'ht, and as the railroad station asli'hted diml( b( a sin'le li'ht located some distance aa(, ob#ects on the platform here the accidentoccurred ere difficult to discern especiall( to a person emer'in' from a li'hted car.

+he e6planation of the presence of a sac of melons on the platform here the plaintiff is found in the fact that it as the customar( season for harvestin' these melons and a lar'e been brou'ht to the station for the shipment to the maret. +he( ere contained in numerouhich has been piled on the platform in a ro one upon another. +he testimon( shos that thissacs as so placed of melons and the ed'e of platform8 and it is clear that the fall of the plaindue to the fact that his foot ali'hted upon one of these melons at the moment he stepped up platform. 1is statement that he failed to see these ob#ects in the darness is readil( to be credited

+he plaintiff as dran from under the car in an unconscious condition, and it appeared in#uries hich he had received ere ver( serious. 1e as therefore brou'ht at once to a hospital in the cit( of Manila here an e6amination as made and his arm as amputated. +h

of this operation as unsatisfactor(, and the plaintiff as then carried to another hospital second operation as performed and the member as a'ain amputated hi'her up near the shouappears in evidence that the plaintiff e6pended the sum of P2/&.3 in the form of medical and fees and for other e6penses in connection ith the process of his curation.

*pon Au'ust $%, %/%3, he instituted this proceedin' in the Court of !irst Instance of theManila to recover dama'es of the defendant compan(, foundin' his action upon the ne'li'enceservants and emplo(ees of the defendant in placin' the sacs of melons upon the platform and them so placed as to be a menace to the securit( of passen'er ali'htin' from the compan(?s trthe hearin' in the Court of !irst Instance, his 1onor, the trial #ud'e, found the facts substantabove stated, and dre therefrom his conclusion to the effect that, althou'h ne'li'ence as attrito the defendant b( reason of the fact that the sacs of melons ere so placed as to obstruct pas passin' to and from the cars, nevertheless, the plaintiff himself had failed to use due cauali'htin' from the coach and as therefore precluded form recoverin'. ud'ment as acco

entered in favor of the defendant compan(, and the plaintiff appealed.

It can not be doubted that the emplo(ees of the railroad compan( ere 'uilt( of ne'li' pilin' these sacs on the plat form in the manner above stated8 that their presence caused the plafall as he ali'hted from the train8 and that the( therefore constituted an effective le'al causein#uries sustained b( the plaintiff. It necessaril( follos that the defendant compan( is liabledama'e thereb( occasioned unless recover( is barred b( the plaintiff?s on contributor( ne'li'eresolvin' this problem it is necessar( that each of these conceptions of liabilit(, to-it, the presponsibilit( of the defendant compan( and the contributor( ne'li'ence of the plaintiff shseparatel( e6amined.

It is important to note that the foundation of the le'al liabilit( of the defendant is the concarria'e, and that the obli'ation to respond for the dama'e hich plaintiff has suffered arises, ifrom the breach of that contract b( reason of the failure of defendant to e6ercise due car performance. +hat is to sa(, its liabilit( is direct and immediate, differin' essentiall(, iviepoint from that presumptive responsibilit( for the ne'li'ence of its servants, imposed b(%/&$ of the Civil Code, hich can be rebutted b( proof of the e6ercise of due care in their seand supervision. Article %/&$ of the Civil Code is not applicable to obli'ations arisin' e6 co but onl( to e6tra-contractual obli'ations or to use the technical form of e6pression, thatrelates onl( to culpa a0uiliana and not to culpa contractual .



Manresa =vol. 5, p. @2> in his commentaries upon articles %%&$ and %%&4 of the Civil Code,clearl( points out this distinction, hich as also reco'ni;ed b( this Court in its decision in the case ofRaes vs. Atlantic, <ulf and Pacific Co. =2 Phil. rep., $3/>. In commentin' upon article %&/$ Manresaclearl( points out the difference beteen culpa, substantive and independent, hich of itselfconstitutes the source of an obli'ation beteen persons not formerl( connected b( an( le'al tie andculpa considered as an accident in the performance of an obli'ation alread( e6istin' . . . .

In the Raes case = supra> the decision of this court as made to rest s0uarel( upon the proposition that article %/&$ of the Civil Code is not applicable to acts of ne'li'ence hich constitutethe breach of a contract.

*pon this point the Court said9

+he acts to hich these articles %/& and %/&$ of the Civil CodeD are applicable areunderstood to be those not 'roin' out of pre-e6istin' duties of the parties to one another. Buthere relations alread( formed 'ive rise to duties, hether sprin'in' from contract or 0uasi-contract, then breaches of those duties are sub#ect to article %%&%, %%&$, and %%&4 of the samecode. =Raes vs. Atlantic, <ulf and Pacific Co., 2 Phil. Rep., $3/ at $@3.>

+his distinction is of the utmost importance. +he liabilit(, hich, under the "panish la, is, incertain cases imposed upon emplo(ers ith respect to dama'es occasioned b( the ne'li'ence of theiremplo(ees to persons to hom the( are not bound b( contract, is not based, as in the En'lish Common)a, upon the principle of respondeat superior 8 if it ere, the master ould be liable in ever( caseand unconditionall( but upon the principle announced in article %/& of the Civil Code, hichimposes upon all persons ho b( their fault or ne'li'ence, do in#ur( to another, the obli'ation ofmain' 'ood the dama'e caused. ne ho places a poerful automobile in the hands of a servanthom he nos to be i'norant of the method of mana'in' such a vehicle, is himself 'uilt( of an act ofne'li'ence hich maes him liable for all the conse0uences of his imprudence. +he obli'ation to mae'ood the dama'e arises at the ver( instant that the unsillful servant, hile actin' ithin the scope ofhis emplo(ment causes the in#ur(. +he liabilit( of the master is personal and direct. But, if the masterhas not been 'uilt( of an( ne'li'ence hatever in the selection and direction of the servant, he is notliable for the acts of the latter, hatever done ithin the scope of his emplo(ment or not, if the dama'edone b( the servant does not amount to a breach of the contract beteen the master and the personin#ured.

It is not accurate to sa( that proof of dili'ence and care in the selection and control of the servantrelieves the master from liabilit( for the latter?s acts on the contrar(, that proof shos that theresponsibilit( has never e6isted. As Manresa sa(s =vol. 5, p. @5> the liabilit( arisin' from e6tra-contractual culpa is ala(s based upon a voluntar( act or omission hich, ithout illful intent, but b( mere ne'li'ence or inattention, has caused dama'e to another. A master ho e6ercises all possiblecare in the selection of his servant, tain' into consideration the 0ualifications the( should possess forthe dischar'e of the duties hich it is his purpose to confide to them, and directs them ith e0ualdili'ence, thereb( performs his dut( to third persons to hom he is bound b( no contractual ties, andhe incurs no liabilit( hatever if, b( reason of the ne'li'ence of his servants, even ithin the scope oftheir emplo(ment, such third person suffer dama'e. +rue it is that under article %/&$ of the Civil Code

the la creates a presumption that he has been ne'li'ent in the selection or direction of his servthe presumption is rebuttable and (ield to proof of due care and dili'ence in this respect.

+he supreme court of Porto Rico, in interpretin' identical provisions, as found in the PorCode, has held that these articles are applicable to cases of e6tra-contractual culpa e6cl=Carmona vs. Cuesta, & Porto Rico Reports, %3.>

+his distinction as a'ain made patent b( this Court in its decision in the case of B)iton#ua and )e(nes, =$& Phil. rep., @4>, hich as an action brou'ht upon the theor( of thcontractual liabilit( of the defendant to respond for the dama'e caused b( the carelessnessemplo(ee hile actin' ithin the scope of his emplo(ment. +he Court, after citin' the last paof article %/&$ of the Civil Code, said9

!rom this article to thin's are apparent9 =%> +hat hen an in#ur( is causedne'li'ence of a servant or emplo(ee there instantl( arises a presumption of la that thne'li'ence on the part of the master or emplo(er either in selection of the seremplo(ee, or in supervision over him after the selection, or both8 and => that that presuis juris tantum and not juris et de jure, and conse0uentl(, ma( be rebutted. It necessaril( that if the emplo(er shos to the satisfaction of the court that in selectisupervision he has e6ercised the care and dili'ence of a 'ood father of a fam presumption is overcome and he i s relieved from liabilit(.

+his theor( bases the responsibilit( of the master ultimatel( on his o3n ne'li'enot on that of his servant. +his is the notable peculiarit( of the "panish la of ne'li'is, of course, in striin' contrast to the American doctrine that, in relations ith stran'ne'li'ence of the servant in conclusivel( the ne'li'ence of the master.

+he opinion there e6pressed b( this Court, to the effect that in case of e6tra-contractua based upon ne'li'ence, it is necessar( that there shall have been some fault attributabledefendant personall(, and that the last para'raph of article %/&$ merel( establishes a reb presumption, is in complete accord ith the authoritative opinion of Manresa, ho sa(s =vol@%%> that the liabilit( created b( article %/&$ is imposed b( reason of the breach of the duties iin the special relations of authorit( or superiorit( e6istin' beteen the person called upon to repdama'e and the one ho, b( his act or omission, as the cause of it.

n the other hand, the liabilit( of masters and emplo(ers for the ne'li'ent acts or omistheir servants or a'ents, hen such acts or omissions cause dama'es hich amount to the breacontact, is not based upon a mere presumption of the master?s ne'li'ence in their selection or c

and proof of e6ercise of the utmost dili'ence and care in this re'ard does not relieve the masteliabilit( for the breach of his contract.

Ever( le'al obli'ation must of necessit( be e6tra-contractual or contractual. E6tra-conobli'ation has its source in the breach or omission of those mutual duties hich civili;ed imposes upon it members, or hich arise from these relations, other than contractual, of members of societ( to others, 'enerall( embraced in the concept of status. +he le'al ri'hts



member of societ( constitute the measure of the correspondin' le'al duties, mainl( ne'ative incharacter, hich the e6istence of those ri'hts imposes upon all other members of societ(. +he breachof these 'eneral duties hether due to illful intent or to mere inattention, if productive of in#ur(, 'iverise to an obli'ation to indemnif( the in#ured part(. +he fundamental distinction beteen obli'ations ofthis character and those hich arise from contract, rests upon the fact that in cases of non-contractualobli'ation it is the ron'ful or ne'li'ent act or omission itself hich creates the vinculum juris,hereas in contractual relations the vinculum e6ists independentl( of the breach of the voluntar( dut(assumed b( the parties hen enterin' into the contractual relation.

7ith respect to e6tra-contractual obli'ation arisin' from ne'li'ence, hether of act or omission,it is competent for the le'islature to elect and our )e'islature has so elected hom such an

obli'ation is imposed is morall( culpable, or, on the contrar(, for reasons of public polic(, to e6tendthat liabilit(, ithout re'ard to the lac of moral culpabilit(, so as to include responsibilit( for thene'li'ence of those person ho acts or mission are imputable, b( a le'al fiction, to others ho are in a position to e6ercise an absolute or limited cont rol over them. +he le'islature hich adopted our CivilCode has elected to limit e6tra-contractual liabilit( ith certain ell-defined e6ceptions to casesin hich moral culpabilit( can be directl( imputed to the persons to be char'ed. +his moralresponsibilit( ma( consist in havin' failed to e6ercise due care in the selection and control of one?sa'ents or servants, or in the control of persons ho, b( reason of their status, occup( a position ofdependenc( ith respect to the person made liable for their conduct.

+he position of a natural or #uridical person ho has undertaen b( contract to render service toanother, is holl( different from that to hich article %/&$ relates. 7hen the sources of the obli'ationupon hich plaintiff?s cause of action depends is a ne'li'ent act or omission, the burden of proof restsupon plaintiff to prove the ne'li'ence if he does not his action fails. But hen the facts averred

sho a contractual undertain' b( defendant for the benefit of plaintiff, and it is alle'ed that plaintiffhas failed or refused to perform the contract, it is not necessar( for plaintiff to specif( in his pleadin'shether the breach of the contract is due to illful fault or to ne'li'ence on the part of the defendant,or of his servants or a'ents. Proof of the contract and of its nonperformance is sufficient prima facie toarrant a recover(.

As a 'eneral rule . . . it is lo'ical that in case of e6tra-contractual culpa, a suin' creditorshould assume the burden of proof of its e6istence, as the onl( fact upon hich his action is based8 hile on the contrar(, in a case of ne'li'ence hich presupposes the e6istence of acontractual obli'ation, if the creditor shos that it e6ists and that it has been broen, it is notnecessar( for him to prove ne'li'ence. =Manresa, vol. 5, p. 2% %/&2 ed., p. 2@D>.

As it is not necessar( for the plaintiff in an action for the breach of a contract to sho that the breach as due to the ne'li'ent conduct of defendant or of his servants, even thou'h such be in fact the

actual cause of the breach, it is obvious that proof on the part of defendant that the ne'li'ence oromission of his servants or a'ents caused the breach of the contract ould not constitute a defense tothe action. If the ne'li'ence of servants or a'ents could be invoed as a means of dischar'in' theliabilit( arisin' from contract, the anomalous result ould be that person actin' throu'h the medium ofa'ents or servants in the performance of their contracts, ould be in a better position than those actin'in person. If one delivers a valuable atch to atchmaer ho contract to repair it, and the bailee, b( a

personal ne'li'ent act causes its destruction, he is un0uestionabl( liable. 7ould it be lo'icalhim from his liabilit( for the breach of his contract , hich involves the dut( to e6ercise due car preservation of the atch, i f he shos that it as his servant hose ne'li'ence caused the in#such a theor( could be accepted, #uridical persons ould en#o( practicall( complete immunidama'es arisin' from the breach of their contracts if caused b( ne'li'ent acts as such #uridical can of necessit( onl( act throu'h a'ents or servants, and it ould no doubt be true in most inthat reasonable care had been taen in selection and direction of such servants. If one securities to a banin' corporation as collateral, and the( are lost b( reason of the ne'li'ence ocler emplo(ed b( the ban, ould it be #ust and reasonable to permit the ban to relieve iliabilit( for the breach of its contract to return the collateral upon the pa(ment of the debt b( that due care had been e6ercised in the selection and direction of the cler:

+his distinction beteen culpa a9uiliana, as the source of an obli'ation, and culpa cont

as a mere incident to the performance of a contract has fre0uentl( been reco'ni;ed b( the scourt of "pain. =#entencias of une 2, %5/48 November &, %5/@8 and ecember %$, %5/@.decisions of November &, %5/@, it appeared that plaintiff?s action arose e: contractu, bdefendant sou'ht to avail himself of the provisions of article %/& of the Civil Code as a defen"panish "upreme Court re#ected defendant?s contention, sa(in'9

+hese are not cases of in#ur( caused, 3itout an- pre"e:isting obligation, b( ne'li'ence, such as those to 3ic article 4;<= of te Civil Code relates , but of dcaused b( the defendant?s failure to carr( out the undertain's imposed b( the contracts

A brief revie of the earlier decision of this court involvin' the liabilit( of emplo(dama'e done b( the ne'li'ent acts of their servants ill sho that in no case has the court ever

that the ne'li'ence of the defendant?s servants has been held to constitute a defense to an acdama'es for breach of contract.

In the case of ohnson vs. avid =3 Phil. Rep., @@$>, the court held that the oner of a as not liable for the dama'es caused b( the ne'li'ence of his driver. In that case the court comon the fact that no evidence had been adduced in the trial court that the defendant had been ne'lthe emplo(ment of the driver, or that he had an( noled'e of his lac of sill or carefulness.

In the case of Baer "enior F Co?s "uccessors vs. Compania Maritima =@ Phil. Rep., plaintiff sued the defendant for dama'es caused b( the loss of a ba r'e belon'in' to plaintiff halloed to 'et adrift b( the ne'li'ence of defendant?s servants in the course of the performancontract of toa'e. +he court held, citin' Manresa =vol. 5, pp. /, @/> that if the obli'ationdefendant 're out of a contract made beteen it and the plaintiff . . . e do not thin t provisions of articles %/& and %/&$ are app licable to the case.

In the case of Chapman vs. *nderood =2 Phil. Rep., $24>, plaintiff sued the defenrecover dama'es for the personal in#uries caused b( the ne'li'ence of defendant?s chauffeudrivin' defendant?s automobile in hich defendant as ridin' at the time. +he court found dama'es ere caused b( the ne'li'ence of the driver of the automobile, but held that the masnot liable, althou'h he as present at the time, sa(in'9



. . . unless the ne'li'ent acts of the driver are continued for a len'th of time as to 'ivethe oner a reasonable opportunit( to observe them and to direct the driver to desisttherefrom. . . . +he act complained of must be continued in the presence of the oner for suchlen'th of time that the oner b( his ac0uiescence, maes the driver?s acts his on.

In the case of Gamada vs. Manila Railroad Co. and Bachrach <ara'e F +a6icab Co. =$$ Phil.Rep., 5>, it is true that the court rested its conclusion as to the liabilit( of the defendant upon article%/&$, althou'h the facts disclosed that the in#ur( complaint of b( plaintiff constituted a breach of thedut( to him arisin' out of the contract of transportation. +he e6press 'round of the decision in this caseas that article %/&$, in dealin' ith the liabilit( of a master for the ne'li'ent acts of his servantsmaes the distinction beteen private individuals and public enterprise8 that as to the latter the la

creates a rebuttable presumption of ne'li'ence in the selection or direction of servants8 and that in the particular case the presumption of ne'li'ence had not been overcome.

It is evident, therefore that in its decision Gamada case, the court treated plaintiff?s action asthou'h founded in tort rather than as based upon the breach of the contract of carria'e, and ane6amination of the pleadin's and of the briefs shos that the 0uestions of la ere in fact discussedupon this theor(. Hieed from the standpoint of the defendant the practical result must have been thesame in an( event. +he proof disclosed be(ond doubt that the defendant?s servant as 'rossl( ne'li'entand that his ne'li'ence as the pro6imate cause of plaintiff?s in#ur(. It also affirmativel( appeared thatdefendant had been 'uilt( of ne'li'ence in its failure to e6ercise proper discretion in the direction ofthe servant. efendant as, therefore, liable for the in#ur( suffered b( plaintiff, hether the breach ofthe dut( ere to be re'arded as constitutin' culpa a9uiliana or culpa contractual . As Manresa pointsout =vol. 5, pp. / and @/> hether ne'li'ence occurs an incident in the course of the performance of acontractual undertain' or its itself the source of an e6tra-contractual undertain' obli'ation, its

essential characteristics are identical. +here is ala(s an act or omission productive of dama'e due tocarelessness or inattention on the part of the defendant. Conse0uentl(, hen the court holds that adefendant is liable in dama'es for havin' failed to e6ercise due care, either directl(, or in failin' toe6ercise proper care in the selection and direction of his servants, the practical result is identical ineither case. +herefore, it follos that it is not to be inferred, because the court held in the Gamada casethat defendant as liable for the dama'es ne'li'entl( caused b( its servants to a person to hom it as bound b( contract, and made reference to the fact that the defendant as ne'li'ent in the selection andcontrol of its servants, that in such a case the court ould have held that it ould have been a 'ooddefense to the action, if presented s0uarel( upon the theor( of the breach of the contract, for defendantto have proved that it did in fact e6ercise care in the selection and control of the servant.

+he true e6planation of such cases is to be found b( directin' the attention to the relative spheresof contractual and e6tra-contractual obli'ations. +he field of non- contractual obli'ation is much more broader than that of contractual obli'ations, comprisin', as it does, the hole e6tent of #uridical human

relations. +hese to fields, fi'urativel( speain', concentric8 that is to sa(, the mere fact that a personis bound to another b( contract does not relieve him from e6tra-contractual liabilit( to such person.7hen such a contractual relation e6ists the obli'or ma( brea the contract under such conditions thatthe same act hich constitutes the source of an e6tra-contractual obli'ation had no contract e6isted beteen the parties.

+he contract of defendant to transport plaintiff carried ith it, b( implication, the dut( thim in safet( and to provide safe means of enterin' and leavin' its trains =civil code, article +hat dut(, bein' contractual, as direct and immediate, and its non-performance could not be e b( proof that the fault as morall( imputable to defendant?s servants.

+he railroad compan(?s defense involves the assumption that even 'rantin' that the neconduct of its servants in placin' an obstruction upon the platform as a breach of its conobli'ation to maintain safe means of approachin' and leavin' its trains, the direct and pro6imatof the in#ur( suffered b( plaintiff as his on contributor( ne'li'ence in failin' to ait until thad come to a complete stop before ali'htin'. *nder the doctrine of comparative ne'announced in the Raes case = supra>, if the accident as caused b( plaintiff?s on ne'li'e

liabilit( is imposed upon defendant?s ne'li'ence and plaintiff?s ne'li'ence merel( contributedin#ur(, the dama'es should be apportioned. It is, therefore, important to ascertain if defendantfact 'uilt( of ne'li'ence.

It ma( be admitted that had plaintiff aited until the train had come to a full stopali'htin', the particular in#ur( suffered b( him could not have occurred. efendant contends, anman( authorities in support of the contention, that it is ne'li'ence per se for a passen'er to ali'a movin' train. 7e are not disposed to subscribe to this doctrine in its absolute form. 7e aropinion that this proposition is too badl( stated and is at variance ith the e6perience of ever(-dIn this particular instance, that the train as barel( movin' hen plaintiff ali'hted is conclusivel( b( the fact that it came to stop ithin si6 meters from the place here he stepped +housands of person ali'ht from trains under these conditions ever( da( of the (ear, and susin#ur( here the compan( has ept its platform free from dan'erous obstructions. +here is no re believe that pla intiff ould have suffered an( in#ur( hatever in ali'htin' as he did had it not b

defendant?s ne'li'ent failure to perform its dut( to provide a safe ali'htin' place.

7e are of the opinion that the correct doctrine relatin' to this sub#ect is that e6pre+hompson?s or on Ne'li'ence =vol. $, sec. $&%&> as follos9

+he test b( hich to determine hether the passen'er has been 'uilt( of ne'li'attemptin' to ali'ht from a movin' raila( train, is that of ordinar( or reasonable care. be considered hether an ordinaril( prudent person, of the a'e, se6 and condition passen'er, ould have acted as the passen'er acted under the circumstances disclosedevidence. +his care has been defined to be, not the care hich ma( or should be used prudent man 'enerall(, but the care hich a man of ordinar( prudence ould usesimilar circumstances, to avoid in#ur(. =+hompson, Commentaries on Ne'li'ence, vol$&%&.>

r, it e prefer to adopt the mode of e6position used b( this court in Picart vs. "mith =rep., 5&/>, e ma( sa( that the test is this8 7as there an(thin' in the circumstances surround plaintiff at the time he ali'hted from the train hich ould have admonished a person of prudence that to 'et off the t rain under the conditions then e6istin' as dan'erous: If so, the pshould have desisted from ali'htin'8 and his failure so to desist as contributor( ne'li'ence.l.net



As the case no before us presents itself, the onl( fact from hich a conclusion can be dran tothe effect that plaintiff as 'uilt( of contributor( ne'li'ence is that he stepped off the car ithout bein' able to discern clearl( the condition of the platform and hile the train as (et slol( movin'.In considerin' the situation thus presented, it should not be overlooed that the plaintiff as, as efind, i'norant of the fact that the obstruction hich as caused b( the sacs of melons piled on the platform e6i sted8 and as the defendant as bound b( reason of its dut( as a public carrier to afford toits passen'ers facilities for safe e'ress from its trains, the plaintiff had a ri'ht to assume, in the absenceof some circumstance to arn him to the contrar(, that the platform as clear. +he place, as e havealread( stated, as dar, or diml( li'hted, and this also is proof of a failure upon the part of thedefendant in the performance of a dut( oin' b( it to the plaintiff8 for if it ere b( an( possibilit(concede that it had ri'ht to pile these sacs in the path of ali'htin' passen'ers, the placin' of them

ade0uatel( so that their presence ould be revealed.

As pertinent to the 0uestion of contributor( ne'li'ence on the part of the plaintiff in this case thefolloin' circumstances are to be noted9 +he compan(?s platform as constructed upon a level hi'herthan that of the roadbed and the surroundin' 'round. +he distance from the steps of the car to the spothere the ali'htin' passen'er ould place his feet on the platform as thus reduced, thereb(decreasin' the ris incident to steppin' off. +he nature of the platform, constructed as it as of cementmaterial, also assured to the passen'er a stable and even surface on hich to ali'ht. !urthermore, the plaintiff as possessed of the vi'or and a'ilit( of (oun' manhood, and it as b( no means so ris( forhim to 'et off hile the train as (et movin' as the same act ould have been in an a'ed or feeble person. In determinin' the 0uestion of contributor( ne'li'ence in pe rformin' such act that is to sa(,hether the passen'er acted prudentl( or reclessl( the a'e, se6, and ph(sical condition of the passen'er are circumstances necessaril( affectin' the safet( of the passen'er, and should beconsidered. 7omen, it has been observed, as a 'eneral rule are less capable than men of ali'htin' ith

safet( under such conditions, as the nature of their earin' apparel obstructs the free movement of thelimbs. A'ain, it ma( be noted that the place as perfectl( familiar to the plaintiff as it as his dail(custom to 'et on and of the train at this station. +here could, therefore, be no uncertaint( in his mindith re'ard either to the len'th of the step hich he as re0uired to tae or the character of the platform here he as ali'htin'. ur conclusion is that the conduct of the plaint iff in undertain' toali'ht hile the train as (et sli'htl( under a( as not characteri;ed b( imprudence and thattherefore he as not 'uilt( of contributor( ne'li'ence.

+he evidence shos that the plaintiff, at the time of the accident, as earnin' P3 a month as acop(ist cler, and that the in#uries he has suffered have permanentl( disabled him from continuin' thatemplo(ment. efendant has not shon that an( other 'ainful occupation is open to plaintiff. 1ise6pectanc( of life, accordin' to the standard mortalit( tables, is appro6imatel( thirt(-three (ears. 7eare of the opinion that a fair compensation for the dama'e suffered b( him for his permanent disabilit(is the sum of P,3&&, and that he is also entitled to recover of defendant the additional sum of P2/&.3

for medical attention, hospital services, and other incidental e6penditures connected ith the treatmentof his in#uries.

+he decision of loer court is reversed, and #ud'ment is hereb( rendered plaintiff for the sum ofP$,/&.3, and for the costs of both instances. "o ordered.

Arellano, C.., +orres, "treet and Avancea, ., concur.

S#$ara%# O$&'&o'(

MALCOLM, J., dissentin'9

7ith one sentence in the ma#orit( decision, e are of full accord, namel(, It ma( be athat had plaintiff aited until the train had come to a full stop before ali'htin', the particulasuffered b( him could not have occurred. 7ith the 'eneral rule relative to a passen'er?s contne'li'ence, e are lieise in full accord, namel(, An attempt to ali'ht from a movin' tne'li'ence per se. Addin' these to points to'ether, should be absolved from the compla #ud'ment affirmed.

Jonson, J., concur.




Manila

"ECN IHI"IN

G.R. No. 77679 *'(*2*r 30, 197

CENTE ERGARA, petitioner,vs.T!E COURT O/ A))EAL an+ AMADEO AARCON, respondents.

A / # 6 = U & I 6 N

)ADLLA, J.:

n action for da'ages (ased on >uasi%delict rt. 2: of the Civil Code- was filed ($ privaterespondent against petitioner. &he action arose fro' a vehicular accident that occurred on 3

ugust 9:9 in Dapan, Nueva /cia, when )artin Bel'onte, while driving a cargo truc;

(elonging to petitioner, ra''ed !head%on! the store%residence of the private respondent,causing da'ages thereto which were inventoried and assessed at P3*,24.22.

In his answer to the co'plaint, the petitioner alleged principall$0 !that his driver )artinBel'onte operated said cargo truc; in a ver$ diligent and- careful 'anner5 that the steeringwheel refused to respond to his effort and as a result of a (lown%out tire and despiteapplication of his (ra;es, the said cargo truc; hit the store%residence of plaintiff privaterespondent- and that the said accident was an act of Dod for which he cannot (e held lia(le.!1

Petitioner also filed a third part$ co'plaint against &ravellers Insurance and #uret$Corporation, alleging that said cargo truc; involved in the vehicular accident, (elonging to thepetitioner, was insured ($ the third part$ defendant insurance co'pan$. Petitioner as;ed thatthe latter (e ordered to pa$ hi' whatever a'ount he 'a$ (e ordered ($ the court to pa$ to

the private respondent.

&he trial court rendered udg'ent in favor of private respondent. Upon appeal to the Court of ppeals, the latter court affir'ed in toto the decision of the trial court, which orderedPetitioner to pa$, ointl$ and severall$ with &ravellers Insurance and #uret$ Corporation, tothe private, respondent the following0 a- P3*,24.22 as actual da'ages5 (- P,. as'oral da'ages5 c- P,. as e7e'plar$ da'ages5 and d- the su' of P3,. for

attorne$8s fees and the costs. 6n the third part$ co'plaint, the insurance co'pansentenced to pa$ to the petitioner the following0 a- P3,. for third part$ lia(ilit$ unco'prehensive accident insurance polic$5 and (- P*,. for and as attorne$8s fees

"ence, this petition for review on certiorari.

Petitioner8s contention that the respondent court erred in finding hi' guilt$ of fanegligence is not tena(le. It was esta(lished ($ co'petent evidence that the re>uisit>uasi%delict are present in the case at (ar. &hese re>uisites are0 - da'ages to the p2- negligence, ($ act or o'ission, of which defendant, or so'e person for whose a'ust respond, was guilt$5 and *- the connection of cause and effect (etween

negligence and the da'ages.

It is undisputed that private respondent suffered da'ages as a result of an act or o'ispetitioner. &he issue of whether or not this act or o'ission can (e considered as a !negact or o'ission was passed upon ($ the trial court. &he findings of said court, affir'edrespondent court, which we are not prepared to now distur(, show that the fact of occuof the !vehicular accident! was sufficientl$ esta(lished ($ the polic$ report and the tesof Patrol'an )asiclat. nd the fact of negligence 'a$ (e deduced fro' the surroucircu'stances thereof. ccording to the police report, !the cargo truc; was travelling right side of the road going to )anila and then it crossed to the center line and went to side of the highwa$5 it then (u'ped a tric$cle5 and then another (ic$cle5 and then saidtruc; ra''ed the store warehouse of the plaintiff.!

ccording to the driver of the cargo truc;, he applied the (ra;es (ut the latter did no

due to 'echanical defect. Contrar$ to the clai' of the petitioner, a 'ishap causdefective (ra;es can not (e consideration as fortuitous in character. Certainl$, the dwere cura(le and the accident preventa(le.

Further'ore, the petitioner failed to adduce an$ evidence to overco'e the disppresu'ption of negligence on his part in the selection and supervision of his driver.

Based on the foregoing finding ($ the respondent Court that there was negligence on tof the petitioner, the petitioner8s contention that the respondent court erred in awprivate respondent actual, 'oral and e7e'plar$ da'ages as well as attorne$8s fecosts, is untena(le.

CC6A<IND=E, the petition is </NI/<.

#6 6A</A/<.

"ap (Chairman), Melencio#$errera, !aras and %armiento, JJ., concur.




Manila

"ECN IHI"IN

G.R. No. 7957 Mar&$ 13, 1991

RADO COMMUNCATON O/ T!E )!L))NE, NC. 8RC), petitioner,vs.!ON. COURT O/ A))EAL, an+ )OUE MNERA TMAN an+ /LORE TMAN,respondents.

%alalima, Trenas, !a&aoa ' Associates for petitioner.

!aul !. enteas for private respondents.

ARMENTO, J.:p

social condolence telegra' sent through the facilities of the petitioner gave rise to thepresent petition for review on certiorari assailing the decision 1 of the respondent Court of ppeals which affir'ed in toto the udg'ent of the trial court, dated Fe(ruar$ 4, 9+3, thedispositive portion of which reads0

1"/A/F6A/, pre'ises considered, udg'ent is here($ rendered0

. 6rdering the defendant ACPI to pa$ plaintiff the a'ount of P*,+4+.3representing actual and co'pensator$ da'ages5 P,. as 'oralda'ages and P3,. as e7e'plar$ da'ages.

2. warding of attorne$8s fees in the su' of P3,.. Costs against thedefendant.

#6 6A</A/<. 3

&he facts as gleaned fro' the records of the case are as follows0

6n anuar$ 24, 9+*, private respondents%spouses )inerva &i'an and Flores &i'an sent atelegra' of condolence to their cousins, )r. and )rs. "ilario )idoranda, at &rinidad,

Cal(a$og Cit$, through petitioner Aadio Co''unications of the Philippines, Inc. hereinafter- at Cu(ao, ue?on Cit$, to conve$ their deepest s$'path$ for the recent dthe 'other%in%law of "ilario )idoranda 4 to wit0

)A. G )A#. "I=AI6 )I<6A&AINI<<, C=BE6D CI&E

)E D6< DI@/ E6U C6UAD/ N< #&A/ND&B/A E6UA =6##. 6UA <//P/#& #E)P&"E &6

N< )/)B/A# 6F &"/ F)I=E. 5

&he condolence telegra' was correctl$ trans'itted as far as the written te7t was conc"owever, the condolence 'essage as co''unicated and delivered to the addresseet$pewritten on a !"app$ Birthda$! card and placed inside a !Christ'asgra'! enBelieving that the trans'ittal to the addressees of the aforesaid telegra' in that n'anner was done intentionall$ and with gross (reach of contract resulting to riconte'pt, and hu'iliation of the private respondents and the addressees, includinfriends and relatives, the spouses &i'an de'anded an e7planation. Unsatisfied with Ae7planations in its letters, dated )arch 9 and pril 2, 9+*, the &i'ans filed a co'plda'ages. 6

&he parties stipulated at the pre%trial that the issue to (e resolved ($ the trial court was

1"/&"/A or not the act of delivering the condolence 'essage in a Birthda$! card with a !Christ'asgra'! envelope constitutes a (recontract on the part of the defendant. If in the affir'ative, whetherplaintiff is entitled to da'ages. 7

&he trial court rendered udg'ent in favor of the respondents &i'ans which was affir'toto ($ the Court of ppeals. ACPI now su('its the following assign'ent of errors0

I

&"/ A/#P6N</N& C6UA& /AA/< IN C6N</)NIND P/&I&I6NPE C&U= N< C6)P/N#&6AE <)D/# IN &"/ )6UP*,+4+.3.

II

&"/ A/#P6N</N& C6UA& /AA/< IN C6N</)NIND P/&I&I6NPE )6A= <)D/# IN &"/ )6UN& 6F P,..

III





nent the award of 'oral and e7e'plar$ da'ages assigned as errors, the findings of therespondent court are persuasive.

. . . 1hen plaintiffs placed an order for trans'ission of their socialcondolence telegra', defendant did not infor' the plaintiff of the e7haustionof such social condolence for's. <efendant%appellant accepted through itsauthori?ed agent or agenc$ the order and received the correspondingco'pensation therefor. <efendant did not co'pl$ with its contract asintended ($ the parties and instead of trans'itting the condolence 'essagein an ordinar$ for', in accordance with its guidelines, placed the condolence'essage e7pressing sadness and sorrow in for's conve$ing o$ and

happiness. Under the circu'stances, 1e cannot accept the defendant8s pleaof good faith predicated on such e7haustion of social condolence for's.Dross negligence or carelessness can (e attri(uted to defendant%appellant innot suppl$ing its various stations with such sufficient and ade>uate socialcondolence for's when it held out to the pu(lic so'eti'e in anuar$, 9+*,the availa(ilit$ of such social condolence for's and accepted for a fee thetrans'ission of 'essages on said for's. Jnowing that there are no suchfor's as testified to ($ its )aterial Control )anager )ateo tien?a, andentering into a contract for the trans'ission of 'essages in such for's,defendant%appellant co''itted acts of (ad faith, fraud or 'alice. . . . 17

ACPI8s argu'ent that it can not (e held lia(le for e7e'plar$ da'ages, (eing penal or punitivein character, 1 is without 'erit. 1e have so held in 'an$ cases, and oddl$, >uite a nu'(er ofthe' li;ewise involved the herein petitioner as the transgressor.

777 777 777

. . . In contracts and *uasi#contracts, e7e'plar$ da'ages 'a$ (e awarded ifthe defendant acted in a wanton, fraudulent, rec;less, oppressive or'alevolent 'anner. &here was gross negligence on the part of ACPIpersonnel in trans'itting the wrong telegra', of which ACPI 'ust (e heldlia(le. Dross carelessness or negligence constitutes wanton 'isconduct.

777 777 777

. . . punitive da'ages 'a$ (e recovered for wilful orwantonl$ negligent acts in respect of 'essages, eventhough those acts are neither authori?ed nor ratifiedr;ansas G =.A. Co. vs. #troude 9 #1 +5 1est vs.1estern U. &el. Co., : P+:5 Peterson vs. 1estern U. &el.Co., :: N1 9+35 Brown vs. 1estern U. &el. Co., #/ 4-.&hus, punitive da'ages have (een recovered for 'ista;esin the trans'ission of telegra's Pitt'an vs. 1estern Union

&el. Co., #6 9::5 Painter vs. 1estern Union &el. C#/ 29*- e'phasis supplied-. 19

1e wish to add a little footnote to this <ecision. B$ 'erel$ reviewing the nu'(er of that has reached this Court in which the petitioner was ti'e and again held lia(le fsa'e causes as in the present case (reach of contract and gross negligencinelucta(le conclusion is that it has not in an$ wa$ refor'ed nor i'proved its servicespu(lic. It 'ust do so now or else ne7t ti'e the Court 'a$ (e constrained to adudge sanctions.

1"/A/F6A/, pre'ises considered, the decision appealed fro' is FFIA)/< in toto

Costs against the petitioner.

#6 6A</A/<.

Melencio#$errera, !aras, !adilla and Re&alado, JJ., concur.



+.R. -os. /010#12. -ovem3er 24, 2/5/.6

!A-TRA-C7 -7RT$ 89!R8%%, :-C. petitioner, vs. MAR:CAR ;A%C7% ;A8%A, thru her personal &uardian <RA-C:%CA 7. ;A%C7%, <8 7. :C7, in her 3ehalf and in 3ehalf of herminor children, namely 8R=:-, 7:>8, 8?M@-?7 and %$AR7- :C7, respondents.

8fren -. Am3rosio ' Associates for petitioner !-8:.

8miliano %. Micu for respondents.

%"A;@%

2. C:>: A= ?AMA8% A%T C8AR C$A-C8 ?7CTR:-8 =$8- A!!:CA;8.B The doctrine of last clear chance applies only in a situation here the defendant, havin&the last fair chance to avoid the impendin& harm and failed to do so, 3ecomes lia3le for allthe conse*uences of the accident notithstandin& the prior ne&li&ence of the plaintiff.

D. :?. :?. :?. C7-?:T:7- T7 MAE8 ?7CTR:-8 A!!:CA;8. B :n order that thedoctrine of last clear chance may 3e applied, it must 3e shon that the person ho alle&edlyhad the last opportunity to avert the accident as aare of the eFistence of the peril or itheFercise of due care should have 3een aare of it.

G. :?. :?. :?. -7T A!!:CA;8 T7 !8R%7- ACT:- :-%TA-TA-87@%" 7R ;" A>A:A;8 M8A-%. B This doctrine of last chance has no application to a case here a

person is to act instantaneously, and if the inury cannot 3e avoided 3y usin& all meansavaila3le after the peril is or should have 3een discovered.

4. :?. :?. !R7>:%:7- 7< R.A. -7. 42GH R8 >8$:C8 8-T8R:- A T$R7@$$:$=A" 7R A %T7! :-T8R%8CT:7-. B %ection 4G (c), Article :::, Chapter :> of Repu3lic

Act -o. 24GH cannot apply to case a 3ar here at the time of the accident, the eepney hadalready crossed the intersection.

1. :?. :?. -8:8-C8 ;@R?8- 7< !R77< :8% 7- T$8 8M!7"8R. B Afindin& of ne&li&ence on the part of the driver esta3lishes a presumption that the employerhas 3een ne&li&ent and the latter has the 3urden of proof that it has eFercised duene&li&ence not only in the selection of its employees 3ut also in ade*uately supervisin& theirork.

H. :?. :?. <A:@R8 T7 !R8%8-T 8>:?8-C8 T7 %@!!7RT CA:M <7R?AMA8%. B !laintiffIs failure to present documentary evidence to support their claim fordama&es for loss of earnin& capacity of the deceased victim does not 3ar recovery of thedama&es, if such loss may 3e 3ased sufficiently on their testimonies.

. :?. :?. :-?8M-:T" <:98? AT !G0,000. B The indemnity for the death of a as fiFed 3y this Court at (!G0,000.00).

? 8 C : % : 7 -

C7RT8%, J p

:n this !etition, !antranco -orth 8Fpress :nc. (!A-TRA-C7), asks the Court to revidecision of the Court of Appeals in CA#.R. -o. 014/4#/1 hich affirmed the decisionsCourt of <irst :nstance of Rosales, !an&asinan in Civil Case -o. 1H2#R and Civil Ca15/#R herein !A-TRA-C7 as ordered to pay dama&es and attorneyIs fees to

private respondents. Cdpr

The pertinent fact are as follos

At a3out 00 oIclock in the mornin& of June 2D, 2/52, the spouses Ceasar and M;aesa and their children $arold Jim, Marcelino and Maricar, to&ether ith spouses ?aand <e 7. :co ith their son 8rin :co and seven other persons, ere a3oard a pas

eepney on their ay to a picnic at Malalam River, :la&an, :sa3ela, to cele3rate theddin& anniversary of Ceasar and Marilyn ;aesa.

The &roup, num3erin& fifteen (21) persons, rode in the passen&er eepney driven 3y:co, ho as also the re&istered oner thereof. <rom :la&an, :sa3ela, they procee;arrio Capayacan to deliver some viands to one Mrs. ;ascos and thenceforth to %an

takin& the hi&hay &oin& to Malalam River. @pon reachin& the hi&hay, the eepney ri&ht and proceeded to Malalam River at a speed of a3out D0 kph. =hile they proceedin& toards Malalam River, a speedin& !A-TRA-C7 3us from Aparri, on its rroute to Manila, encroached on the eepneyIs lane hile ne&otiatin& a curve, and cith it.

As a result of the accident ?avid :co, spouses Ceasar ;aesa and Marilyn ;aesa anchildren, $arold Jim and Marcelino ;aesa, died hile the rest of the passen&ers suinuries. The eepney as eFtensively dama&ed. After the accident the driver !A-TRA-C7 ;us, Am3rosio Ramire, 3oarded a car and proceeded to %antia&o, :s<rom that time on up to the present, Ramire has never 3een seen and has appremained in hidin&.

All the victims andKor their survivin& heirs eFcept herein private respondents settled th

amica3ly under the L-o <aultL insurance covera&e of !A-TRA-C7.

Maricar ;aesa throu&h her &uardian <rancisca 7. ;ascos and <e 7. :co for herself aher minor children, filed separate actions for dama&es arisin& from *uasi#delict a!A-TRA-C7, respectively docketed as Civil Case -o. 1H2#R and 15/#R of the Court o:nstance of !an&asinan.



:n its anser, !A-TRA-C7, aside from pointin& to the late ?avid :coIs alle&ed ne&li&ence asthe proFimate cause of the accident, invoked the defense of due dili&ence in the selectionand supervision of its driver, Am3rosio Ramire. cdll

7n July G, 2/54, the C<: of !an&asinan rendered a decision a&ainst !A-TRA-C7 aardin&the total amount of To Million Three $undred <our Thousand %iF $undred <orty#%even(!D,G04,H4.00) as dama&es, plus 20 thereof as attorneyIs fees and costs to Maricar;aesa in Civil Case -o. 1H2#R, and the total amount of %iF $undred <ifty To Thousand %iF$undred %eventy#To !esos (!H1D,HD.00) as dama&es, plus 20 thereof as attorneyIsfees and costs to <e :co and her children in Civil Case -o. 15/#R. 7n appeal, the cases ereconsolidated and the Court of Appeals modified the decision of the trial court 3y orderin&

!A-TRA-C7 to pay the total amount of 7ne Million 7ne $undred 8i&hty#-ine Thousand-ine $undred Tenty %even !esos (!2,25/,/D.00) as dama&es, plus Tenty Thousand!esos (!D0,000.00) as attorneyIs fees to Maricar ;aesa, and the total amount of Three$undred <orty#<our Thousand !esos (!G44,000.00) plus Ten Thousand !esos (!20,000.00)as attorneyIs fees to <e :co and her children, and to pay the costs in 3oth cases. Thedispositive portion of the assailed decision reads as follos

=$8R8<7R8, the decision appealed from is here3y modified 3y orderin& the defendant!A-TRA-C7 -orth 8Fpress, :nc. to pay

:. The plaintiff in Civil Case -o. 1H2#R, Maricar ;ascos ;aesa, the folloin& dama&es

A) As compensatory dama&es for the death of Ceasar ;aesa B !G0,000.00

;) As compensatory dama&es for the death of Marilyn ;aesa B !G0,000.00

C) As compensatory dama&es for the death of $arold Jim ;aesa and Marcelino ;aesaB !G0,000.00

?) <or the loss of earnin&s of Ceasar ;aesa B !HG0,000.00

8) <or the loss of earnin&s of Marilyn ;ascos ;aesa B !G1,000.00

<) <or the 3urial eFpenses of the deceased Ceasar and Marilyn ;aesa B !42,D00.00

) <or hospitaliation eFpenses of Maricar ;aesa B !G,D.00

$) As moral dama&es B !10,000.00

: ) As at torneyIs fees B !D0,000.00

::. The plaintiffs in Civil Case -o. 15/#R, the folloin& dama&es

A) As compensatory dama&es for the death of ?avid :co B !G0,000.00

;) <or loss of earnin& capacity of ?avid :co B !D1D,000.00

C) As moral dama&es for the death of ?avid :co and the inury of <e :co B !G0,00

?) As payment for the eepney B !D0,000.00

8) <or the hospitaliation of <e :co B !2D,000.000

<) And for attorneyIs fees B !20,000.00

and to pay the costs in 3oth cases.

The amount of !D1,000 paid to Maricar ;ascos ;aesa, plaintiff in Civil Case -o. 1H2#the medical eFpenses in the sum of !G,DG.11, should 3e deducted from the aardfavor. Cdpr

All the fore&oin& amounts herein aarded eFcept the costs shall earn interest at thrate from date of this decision until fully paid. +CA ?ecision, pp. 24#21 Rollo, pp. 1#15

!A-TRA-C7 filed a motion for reconsideration of the Court of AppealsI decision, June DH, 2/5, it denied the same for lack of merit. !A-TRA-C7 then filed the

petition for revie.

:

!etitioner faults the Court of Appeals for not applyin& the doctrine of the Llast clear ca&ainst the eepney driver. !etitioner claims that under the circumstances of the case,the driver of the passen&er eepney ho had the last clear chance to avoid the collisias therefore ne&li&ent in failin& to utilie ith reasona3le care and competence heFistin& opportunity to avoid the harm.

The doctrine of the last clear chance as defined 3y this Court in the case of 7Metropolitan =ater ?istrict, 204 !hil. G/ (2/15), in this ise

The doctrine of the last clear chance simply, means that the ne&li&ence of a claiman

not preclude a recovery for the ne&li&ence of defendant here it appears that the lateFercisin& reasona3le care and prudence, mi&ht have avoided inurious conse*uenclaimant notithstandin& his ne&li&ence.

The doctrine applies only in a situation here the plaintiff as &uilty of prior or antene&li&ence 3ut the defendant, ho had the last fair chance to avoid the impendin& har



failed to do so, is made lia3le for all the conse*uences of the accident notithstandin& the prior ne&li&ence of the plaintiff +!icart v. %mith, G !hil. 50/ (2/25) lan !eopleIs um3erand $ardare, et al. v. :ntermediate Appellate Court, Cecilia Alfere >da. de Cali3o, et al.,.R. -o. 04/G, May 25, 2/5/6. The su3se*uent ne&li&ence of the defendant in failin& toeFercise ordinary care to avoid inury to plaintiff 3ecomes the immediate or proFimate causeof the accident hich intervenes 3eteen the accident and the more remote ne&li&ence ofthe plaintiff, thus makin& the defendant lia3le to the plaintiff +!icart v. %mith, supra6.

enerally, the last clear chance doctrine is invoked for the purpose of makin& a defendantlia3le to a plaintiff ho as &uilty of prior or antecedent ne&li&ence, althou&h it may also 3eraised as a defense to defeat claim for dama&es. llcd

To avoid lia3ility for the ne&li&ence of its driver, petitioner claims that the ori&inal ne&li&enceof its driver as not the proFimate cause of the accident and that the sole proFimate causeas the supervenin& ne&li&ence of the eepney driver ?avid :co in failin& to avoid theaccident. :t is petitionerIs position that even assumin& ar&uendo, that the 3us encroached intothe lane of the eepney, the driver of the latter could have served the eepney toards thespacious dirt shoulder on his ri&ht ithout dan&er to himself or his passen&ers.

The a3ove contention of petitioner is manifestly devoid of merit.

Contrary to the petitionerIs contention, the doctrine of Llast clear chanceL finds no applicationin this case. <or the doctrine to 3e applica3le, it is necessary to sho that the person hoalle&edly had the last opportunity to avert the accident as aare of the eFistence of the perilor should, ith eFercise of due care, have 3een aare of it. 7ne cannot 3e eFpected to avoid

an accident or inury if he does not kno or could not have knon the eFistence of the peril.:n this case, there is nothin& to sho that the eepney driver ?avid :co kne of the impendin&dan&er. =hen he sa at a distance that the approachin& 3us as encroachin& on his lane,he did not immediately serve the eepney to the dirt shoulder on his ri&ht since he musthave assumed that the 3us driver ill return the 3us to its on lane upon seein& the eepneyapproachin& from the opposite direction. As held 3y this Court in the case of >da. ?e;onifacio v. ;T;, .R. -o. #DH520, Au&ust G2, 2/0, G4 %CRA H25, a motorist ho is

properly proceedin& on his on side of the hi&hay is &enerally entitled to assume that anapproachin& vehicle comin& toards him on the ron& side, ill return to his proper lane oftraffic. There as nothin& to indicate to ?avid :co that the 3us could not return to its on laneor as prevented from returnin& to the proper lane 3y anythin& 3eyond the control of itsdriver. eo Marantan, an alternate driver of the !antranco 3us ho as seated 3eside thedriver Ramire at the time of the accident, testified that Ramire had no choice 3ut to servethe steerin& heel to the left and encroach on the eepneyIs lane 3ecause there as a steep

precipice on the ri&ht +CA ?ecision, p. D Rollo, p. 416. $oever, this is 3elied 3y the evidenceon record hich clearly shos that there as enou&h space to serve the 3us 3ack to itson lane ithout any dan&er +CA ?ecision, p. Rollo, p. 106.

Moreover, 3oth the trial court and the Court of Appeals found that at the time of the accidentthe !antranco 3us as speedin& toards Manila +CA ?ecision, p. D Rollo, p. 416. ;y the time

?avid :co must have realied that the 3us as not returnin& to its on lane, it as alrealate to serve the eepney to his ri&ht to prevent an accident. The speed at hiapproachin& 3us as runnin& prevented ?avid :co from servin& the eepney to thshoulder of the road in time to avoid the collision. Thus, even assumin& that the edriver perceived the dan&er a fe seconds 3efore the actual collision, he had no oppoto avoid it. This Court has held that the last clear chance doctrine Lcan never apply h

party char&ed is re*uired to act instantaneously, and if the inury cannot 3e avoided application of all means at hand after the peril is or should have 3een discoveredL +Metropolitan =ater ?istrict, supra6. prcd

!etitioner likeise insists that ?avid :co as ne&li&ent in failin& to o3serve %ection

Article ::: Chapter :> of Repu3lic Act -o. 42GH N hich provides that the driver of a venterin& a throu&h hi&hay or a stop intersection shall yield the ri&ht of ay to all veapproachin& in either direction on such throu&h hi&hay.

!etitionerIs misplaced reliance on the aforesaid la is readily apparent in this case. Thla itself provides that it applies only to vehicles enterin& a throu&h hi&hay or intersection. At the time of the accident, the eepney had already crossed the intersectias on its ay to Malalam River. !etitioner itself cited <e :coIs testimony that the acoccurred after the eepney had travelled a distance of a3out to (D) meters from the pintersection +!etition p. 20 Rollo, p. D6. :n fact, even the itness for the petitioneMarantan, testified that 3oth vehicles ere comin& from opposite directions +CA ?ecis Rollo, p. 106, clearly indicatin& that the eepney had already crossed the intersection.

Considerin& the fore&oin&, the Court finds that the ne&li&ence of petitionerIs dr

encroachin& into the lane of the incomin& eepney and in failin& to return the 3us to ilane immediately upon seein& the eepney comin& from the opposite direction as thand proFimate cause of the accident ithout hich the collision ould not have ocThere as no supervenin& or intervenin& ne&li&ence on the part of the eepney driverould have made the prior ne&li&ence of petitionerIs driver a mere remote cause accident.

::

7n the issue of its lia3ility as an employer, petitioner claims that it had o3served the dilof a &ood father of a family to prevent dama&e, conforma3ly to the last para&raph of D250 of the Civil Code. !etitioner adduced evidence to sho that in hirin& its drivelatter are re*uired to have professional driverIs license and police clearance. The dmust also pass ritten eFaminations, intervies and practical drivin& tests, and are re

to under&o a siF#month trainin& period. Rodri&o %an !edro, petitionerIs Trainin& Coordtestified on petitionerIs policy of conductin& re&ular and continuin& trainin& pro&ramsafety seminars for its drivers, conductors, inspectors and supervisors at a fre*uency at least to (D) seminars a month.

7 thi i t th C t t ith l th f ll i fi di f th t i l t hi h :::



7n this point, the Court *uotes ith approval the folloin& findin&s of the trial court hichas adopted 3y the Court of Appeals in its challen&ed decision

=hen an inury is caused 3y the ne&li&ence of an employee, there instantly arises a presumption that the employer has 3een ne&li&ent either in the selection of his employees orin the supervision over their acts. Althou&h this presumption is only a disputa3le presumptionhich could 3e overcome 3y proof of dili&ence of a &ood father of a family, this Court3elieves that the evidence su3mitted 3y the defendant to sho that it eFercised the dili&enceof a &ood father of a family in the case of Ramire, as a company driver is far from sufficient.-o support evidence has 3een adduced. The professional driverIs license of Ramire has not3een produced. There is no proof that he is 3eteen D1 to G5 years old. There is also no

proof as to his educational attainment, his a&e, his ei&ht and the fact that he is married ornot. -either are the result of the ritten test, psycholo&ical and physical test, amon& othertests, have 3een su3mitted in evidence +sic6. $is -;: or police clearances and clearancesfrom previous employment ere not marked in evidence. -o evidence as presented thatRamire actually and really attended the seminars. >ital evidence should have 3een thecertificate of attendance or certificate of participation or evidence of such participation like alo&3ook si&ned 3y the trainees hen they attended the seminars. :f such records are notavaila3le, the testimony of the classmates that Ramire as their classmate in said seminar(should have 3een presented) +CA ?ecision, pp. 5#/ Rollo, pp. 12#1D6. phil

!etitioner contends that the fact that Am3rosio Ramire as employed and remained as itsdriver only means that he underent the same ri&id selection process and as su3ected tothe same strict supervision imposed 3y petitioner on all applicants and employees. :t isar&ued 3y the petitioner that unless proven otherise, it is presumed that petitioner o3served

its usual recruitment procedure and company polices on safety and efficiency +!etition, p. D0Rollo, p. G6.

The Court finds the a3ove contention unmeritorious.

The findin& of ne&li&ence on the part of its driver Am3rosio Ramire &ave rise to the presumption of ne&li&ence on the part of petitioner and the 3urden of provin& that it eFerciseddue dili&ence not only in the selection of its employees 3ut also in ade*uately supervisin&their ork rests ith the petitioner +ilius v. Manila Railroad Company, 1/ !hil. 15 (2/G4)@mali v. ;acani, .R. -o. #4010, June G0, 2/H, H/ %CRA HDG6. Contrary to petitionerIsclaim, there is no presumption that the usual recruitment procedures and safety standardsere o3served. The mere issuance of rules and re&ulations and the formulation of variouscompany policies on safety, ithout shoin& that they are 3ein& complied ith, are notsufficient to eFempt petitioner from lia3ility arisin& from the ne&li&ence of its employee. :t is

incum3ent upon petitioner to sho that in recruitin& and employin& the errin& driver, therecruitment procedures and company policies on efficiency and safety ere folloed.!etitioner failed to do this. $ence, the Court finds no co&ent reason to distur3 the findin& of3oth the trial court and the Court of Appeals that the evidence presented 3y the petitioner,hich consists mainly of the uncorro3orated testimony of its Trainin& Coordinator, isinsufficient to overcome the presumption of ne&li&ence a&ainst petitioner. eFi3

:::

7n the *uestion of dama&es, petitioner claims that the Court of Appeals erred in fiFidama&es for the loss of earnin& capacity of the deceased victims. !etitioner arespondent courtIs findin&s 3ecause no documentary evidence in support thereof, sincome taF returns, pay#rolls, pay slips or invoices o3tained in the usual course of 3usere presented +!etition, p. DD Rollo, p. G/6. !etitioner ar&ues that the L3are and self#stestimonies of the ife of the deceased ?avid :co and the mother of the deceased M;aesa . . . have no pro3ative value to sustain in la the Court of AppealsI conclusion respective earnin&s of the deceased victims.L +!etition, pp. D2#DD Rollo, pp. G5#G/

petitionerIs contention that the evidence presented 3y the private respondent does no

the re*uirements of clear and satisfactory evidence to prove actual and compendama&es.

The Court finds that the Court of Appeals committed no reversi3le error in fiFin& the aof dama&es for the loss of earnin& capacity of the deceased victims. =hile it is tru

private respondents should have presented documentary evidence to support their cladama&es for loss of earnin& capacity of the deceased victims, the a3sence thereof donecessarily 3ar the recovery of the dama&es in *uestion. The testimony of <e :c<rancisca ;ascos as to the earnin& capacity of ?avid :co, and the spouses ;respectively, are sufficient to esta3lish a 3asis from hich the court can make a fareasona3le estimate of the dama&es for the loss of earnin& capacity of the three decvictims. Moreover, in fiFin& the dama&es for loss of earnin& capacity of a deceased the court can consider the nature of his occupation, his educational attainment and thof his health at the time of death.

:n the instant case, ?avid :co as thirty ei&ht (G5) years old at the time of his death inand as drivin& his on passen&er eepney. The spouses Ceasar and Marilyn ;aes3oth thirty (G0) years old at the time of their death. Ceasar ;aesa as a commerce dholder and the proprietor of the Cauayan !ress, printer of the Cauayan >alley -esand the >alley Times at Cauayan, :sa3ela. Marilyn ;aesa &raduated as a nurse in 2/at the time of her death, as the company nurse, personnel mana&er, treasurer and cof the :la&an !ress at :la&an, :sa3ela. Respondent court duly considered these fto&ether ith the uncontradicted testimonies of <e :co and <rancisca ;ascos, in fiFiamount of dama&es for the loss of earnin& capacity of ?avid :co and the spouses ;i3eF

$oever, it should 3e pointed out that the Court of Appeals committed error in fiFicompensatory dama&es for the death of $arold Jim ;aesa and Marcelino ;

Respondent court aarded to plaintiff (private respondent) Maricar ;aesa Thirty Tho!esos (!G0,000.00) as Lcompensatory dama&es for the death of $arold Jim ;aesMarcelino ;aesa.L +CA ?ecision, p. 24 Rollo, 16. :n other ords, the Court of Aaarded only <ifteen Thousand !esos (!21,000.00) as indemnity for the death of $aro;aesa and another <ifteen Thousand !esos (!21,000.00) for the death of Marcelino ;This is clearly erroneous. :n the case of !eople v. de la <uente, .R. -os. HGD?ecem3er D/, 2/5G, 2DH %CRA 125, the indemnity for the death of a person as fiFed

Court at Thirty Thousand !esos (!G0 000 00) !laintiff Maricar ;aesa should therefore 3e



Court at Thirty Thousand !esos (!G0,000.00). !laintiff Maricar ;aesa should therefore 3eaarded %iFty Thousand !esos (!H0,000.00) as indemnity for the death of her 3rothers,$arold Jim ;aesa and Marcelino ;aesa or Thirty Thousand !esos (!G0,000.00) for the deathof each 3rother.

The other items of dama&es aarded 3y respondent court hich ere not challen&ed 3y the petitioner are here3y affirmed.

=$8R8<7R8, premises considered, the petition is ?8-:8?, and the decision of respondentCourt of Appeals is here3y A<<:RM8? ith the modification that the amount ofcompensatory dama&es for the death of $arold Jim ;aesa and Marcelino ;aesa are

increased to Thirty Thousand !esos (!G0,000.00) each. phil

%7 7R?8R8?.

<ernan, C.J., utierre, Jr., <eliciano and ;idin, JJ., concur.

<ootnotes

N R.A. 42GH is entitled LAn Act to Compile the as Relative to and Transportationand Traffic Rules, To Create A and Transportation Commission and other !urposes.L

[G.R. No. 57079. September 29, 1989.]

PHILIPPINE LONG DISTN!E TELEPHONE !O., IN!. pet"t"o#er, $%. !O&R

PPELS (#) SPO&SES NTONIO ESTE*N (#) GLORI ESTE*N, re%po#)e#

S+LL*&S C ID ID OTION 'OR E?TENSION O' TIE &ST *E 'ILED PRIOR TO



S+LL*&S

1. REEDIL L- !TIONS OTION 'OR RE!ONSIDERTION SE!OND

OTION 'OR RE!ONSIDERTION &ST *E 'ILED -ITHIN THE 'I'TEEN /15 D+

PERIOD DED&!TING THERE'RO THE TIE IN -HI!H THE 'IRST OTION -S

PENDING. Set"o# 1, R34e 52 o t6e R34e% o !o3rt, 6"6 6() proe)3r(4

o$er#(#e (t t6e t"me, pro$")e) t6(t ( %eo#) mot"o# or reo#%")er(t"o# m(

be pre%e#te) "t6"# "tee# /15 )(% rom #ot"e o t6e or)er or :3)me#t

)e)3t"# t6e t"me "# 6"6 t6e "r%t mot"o# 6(% bee# pe#)"#. Pr"$(te

re%po#)e#t% 6($"# "4e) t6e"r "r%t mot"o# or reo#%")er(t"o# o# t6e 4(%t )( o

t6e re4eme#t(r per"o) o "tee# /15 )(% "t6"# 6"6 to )o %o, t6e 6() o#4o#e /1 )( rom ree"pt o t6e or)er )e#"# %(") mot"o# to "4e, "t6 4e($e o

o3rt, ( %eo#) mot"o# or reo#%")er(t"o#.

2. ID. ID. ID. OPTIONS O' PRT+ -HERE HIS OTION 'OR

RE!ONSIDERTION -S DENIED !SE T *R. I# t6e pre%e#t (%e, (ter t6e"r

ree"pt o# 'ebr3(r 22, 1980 o t6e re%o43t"o# )e#"# t6e"r "r%t mot"o# or

reo#%")er(t"o#, pr"$(te re%po#)e#t% 6() to reme)"(4 opt"o#%. O# 'ebr3(r 2;,

1980, t6e rem("#"# o#e /1 )( o t6e (ore%(") re4eme#t(r per"o), t6e o34)

6($e "4e) ( mot"o# or 4e($e o o3rt to "4e ( %eo#) mot"o# or reo#%")er(t"o#,

o#e"$(b4 "t6 ( pr(er or t6e e<te#%"o# o t6e per"o) "t6"# 6"6 to )o %o.

O# t6e ot6er 6(#), t6e o34) 6($e (ppe(4e) t6ro36 ( pet"t"o# or re$"e o#

ert"or(r" to t6"% !o3rt "t6"# "tee# /15 )(% rom 'ebr3(r 2;, 1980. I#%te(),

t6e "4e) ( mot"o# or 4e($e to "4e ( %eo#) mot"o# =or reo#%")er(t"o# o#'ebr3(r 29, 1980, (#) %(") %eo#) mot"o# or reo#%")er(t"o# o# (r6 7, 1980,

bot6 o 6"6 mot"o#% ere b t6e# t"me>b(rre).

;. ID. ID. E?PIRTION O' THE 'I'TEEN /15 D+ PERIOD, DEPRI@ES THE

!O&RT O' A&RISDI!TION TO TBE '&RTHER PRO!EEDINGS ON THE !SE. ter

t6e e<p"r(t"o# o# 'ebr3(r 2C, 1980 o t6e or""#(4 "tee# /15 )( per"o), t6e

r3##"# o 6"6 (% %3%pe#)e) )3r"# t6e pe#)e# o t6e "r%t mot"o# or

reo#%")er(t"o#, t6e !o3rt o ppe(4% o34) #o 4o#er $(4")4 t(e 3rt6er

proee)"#% o# t6e mer"t% o t6e (%e, m36 4e%% to (4ter, mo)" or reo#%")er "t%

(ore%(") )e"%"o# (#) or re%o43t"o#. T6e "4"# o t6e mot"o# or 4e($e to "4e (

%eo#) mot"o# or reo#%")er(t"o# b 6ere"# re%po#)e#t% o# 'ebr3(r 29, 1980

(#) t6e %3b%e3e#t "4"# o t6e mot"o# "t%e4 o# (r6 7, 1980, (ter t6ee<p"r(t"o# o t6e re4eme#t(r per"o) to "4e t6e %(me, pro)3e) #o 4e(4 eet%.

O#4 ( mot"o# or re>6e(r"# or reo#%")er(t"o# "4e) "# t"me %6(44 %t( t6e "#(4

or)er or :3)me#t %o36t to be re>e<(m"#e).

C. ID. ID. OTION 'OR E?TENSION O' TIE &ST *E 'ILED PRIOR TO

E?PIRTION O' THE PERIOD SO&GHT TO *E E?TENDED. # (pp4"(t"o

e<te#%"o# o t"me m3%t be "4e) pr"or to t6e e<p"r(t"o# o t6e per"o) %o36t

e<te#)e).

5. ID. ID. A&DGENT 'INLIT+ O' DE!ISION, DI@EST THE !O&R

A&RISDI!TION TO LTER OR END, &!H LESS RE@OBE IT. O#e ( )e

6(% beome "#(4 (#) e<e3tor "t "% remo$e) rom t6e poer (#) :3r"%)"

t6e o3rt 6"6 re#)ere) "t to 3rt6er (4ter or (me#), m36 4e%% re$oe

)e"%"o# re#)ere) (#e "% #344 (#) $o"). T6e o3rt=% "#6ere#t poer to orr

o# error% %6o34) be e<er"%e) beore t6e "#(4"t o t6e )e"%"o# or or)er %to be orrete), ot6er"%e 4"t"(t"o# "44 be e#)4e%% (#) #o 3e%t"o# o3

o#%")ere) "#(44 %ett4e).

F. ID. ID. OTION 'OR RE!ONSIDERTION GRNT THEREO' RESTS O

SO&ND A&DI!IL DIS!RETION. 4t6o36 t6e r(#t"# or )e#"(4 o ( mot

reo#%")er(t"o# "#$o4$e% t6e e<er"%e o )"%ret"o#, t6e %(me %6o34) #

e<er"%e) 6"m%"(44, (pr""o3%4 or (rb"tr(r"4, b3t pr3)e#t4 "# o#orm"

4(, :3%t"e, re(%o# (#) e3"t.

7. ID. E@IDEN!E 'INDINGS O' '!T O' THE !O&RT O' PPELS !ONT

TO THT O' THE TRIL !O&RT, &PHELD ON PPEL. -e "#) #o error

"#)"#% o t6e re%po#)e#t o3rt "# "t% or""#(4 )e"%"o# t6(t t6e (")e#t

bee44 pr"$(te re%po#)e#t% (% )3e to t6e 4( o )"4"e#e o re%po#)e#t E%teb(# (#) (% #ot "mp3t(b4e to #e4"e#t om"%%"o# o# t6e p(rt o pet

PLDT. S36 "#)"#% ere re(6e) (ter (# e<6(3%t"$e (%%e%%me#t (#) e$(4

o t6e e$")e#e o# reor), (% e$")e#e) b t6e re%po#)e#t o3rt=% re%o43t

A(#3(r 2C, 1980.

8. !I@IL L- O*LIGTIONS ND !ONTR!TS E?TR>!ONTR!

O*LIGTIONS &SI>DELI!T OISSION TO PER'OR D&T+ !ONSTIT&TE

PRO?ITE !&SE ONL+ -HEN THE DOING O' S&!H -O&LD H@E PRE@E

THE INA&R+. T6e om"%%"o# to perorm ( )3t, %36 (% t6e p4("# o

%"#% o# t6e %"te o t6e e<($(t"o#, o#%t"t3te% t6e pro<"m(te (3%e o#4

t6e )o"# o t6e %(") om"tte) (t o34) 6($e pre$e#te) t6e "#:3r.

9. ID. DGES PRT+ !NNOT !HRGE NOTHER 'OR THE D!&SED *+ HIS O-N NEGLIGEN!E. It "% b(%" t6(t pr"$(te re%po#)e#t%

6(re PLDT or t6e"r "#:3r"e% 6ere t6e"r o# ("43re to e<er"%e )3

re(%o#(b4e (re (% t6e (3%e t6ereo. It "% bot6 ( %o"et(4 #orm (#) #e

t6(t o#e %6o34) e<er"%e ( re(%o#(b4e )eree o (3t"o# or 6"% o# prote

'3rt6ermore re%po#)e#t #to#"o E%teb(# 6() t6e 4(%t 4e(r 6(#e or *(rte 4("me) t6(t "t (% #ot ((re #or (% "t #ot""e) o t6e (")e#t "#$



'3rt6ermore, re%po#)e#t #to#"o E%teb(# 6() t6e 4(%t 4e(r 6(#e or

opport3#"t to ($o") t6e (")e#t, #ot"t6%t(#)"# t6e #e4"e#e 6e "mp3te% to

pet"t"o#er PLDT. % ( re%")e#t o L(%o# Street, 6e p(%%e) o# t6(t %treet (4mo%t

e$er)( (#) 6() #o4e)e o t6e pre%e#e (#) 4o(t"o# o t6e e<($(t"o#%

t6ere. It (% 6"% #e4"e#e t6(t e<po%e) 6"m (#) 6"% "e to )(#er, 6e#e 6e "%

%o4e4 re%po#%"b4e or t6e o#%e3e#e% o 6"% "mpr3)e#e.

10. REEDIL L- E@IDEN!E *&RDEN O' PROO' ND PRES&PTIONS

PERSON !LIING DGES HS THE *&RDEN O' PRO@ING THE E?ISTEN!E O'

'&LT OR NEGLIGEN!E O' NOTHER !&SING THE DGE. per%o#

4("m"# )(m(e% or t6e #e4"e#e o (#ot6er 6(% t6e b3r)e# o pro$"# t6ee<"%te#e o %36 (34t or #e4"e#e (3%(t"$e t6ereo. T6e (t% o#%t"t3t"$e o

#e4"e#e m3%t be ("rm(t"$e4 e%t(b4"%6e) b ompete#t e$")e#e. -6o%oe$er

re4"e% o# #e4"e#e or 6"% (3%e o (t"o# 6(% t6e b3r)e# "# t6e "r%t "#%t(#e o

pro$"# t6e e<"%te#e o t6e %(me " o#te%te), ot6er"%e 6"% (t"o# m3%t ("4.

D E ! I S I O N

REGLDO, A p

T6"% (%e 6() "t% "#ept"o# "# (# (t"o# or )(m(e% "#%t"t3te) "# t6e ormer !o3rt

o '"r%t I#%t(#e o Nero% O")e#t(4 1 b pr"$(te re%po#)e#t %po3%e% (("#%t

pet"t"o#er P6"4"pp"#e Lo# D"%t(#e Te4ep6o#e !omp(# /PLDT, or bre$"t or t6e

"#:3r"e% t6e %3%t("#e) "# t6e e$e#"# o A34 ;0, 19F8 6e# t6e"r :eep r(# o$er (mo3#) o e(rt6 (#) e44 "#to (# ope# tre#6, (# e<($(t"o# (44ee)4 3#)ert(e#

b PLDT or t6e "#%t(44(t"o# o "t% 3#)erro3#) o#)3"t %%tem. T6e omp4("#t

(44ee) t6(t re%po#)e#t #to#"o E%teb(# ("4e) to #ot"e t6e ope# tre#6 6"6

(% 4et 3#o$ere) be(3%e o t6e reep"# )(r#e%% (#) t6e 4( o (# (r#"#

4"6t or %"#%. % ( re%34t o t6e (")e#t, re%po#)e#t G4or"( E%teb(# (44ee)4

%3%t("#e) "#:3r"e% o# 6er (rm%, 4e% (#) (e, 4e($"# ( perm(#e#t %(r o# 6er

6ee, 6"4e t6e re%po#)e#t 63%b(#) %3ere) 3t 4"p%. I# ())"t"o#, t6e "#)%6"e4)

o t6e :eep (% %6(ttere). 2

PLDT, "# "t% (#%er, )e#"e% 4"(b"4"t o# t6e o#te#t"o# t6(t t6e "#:3r"e% %3%t("#e)

b re%po#)e#t %po3%e% ere t6e re%34t o t6e"r o# #e4"e#e (#) t6(t t6e e#t"t

6"6 %6o34) be 6e4) re%po#%"b4e, " (t (44, "% L.R. *(rte (#) !omp(# /*(rte, or

%6ort, (# "#)epe#)e#t o#tr(tor 6"6 3#)ertoo t6e o#%tr3t"o# o t6em(#6o4e (#) t6e o#)3"t %%tem. ; or)"#4, PLDT "4e) ( t6"r)>p(rt

omp4("#t (("#%t *(rte (44e"# t6(t, 3#)er t6e term% o t6e"r (reeme#t, PLDT

%6o34) "# #o m(##er be (#%er(b4e or (# (")e#t or "#:3r"e% (r"%"# rom t6e

#e4"e#e or (re4e%%#e%% o *(rte or (# o "t% emp4oee%. C I# (#%er t6ereto,

*(rte 4("me) t6(t "t (% #ot ((re #or (% "t #ot""e) o t6e (")e#t "#$

re%po#)e#t %po3%e% (#) t6(t "t 6() omp4"e) "t6 t6e term% o "t% o#tr(

PLDT b "#%t(44"# t6e #ee%%(r (#) (ppropr"(te %t(#)(r) %"#% "# t6e $""

t6e or %"te, "t6 b(rr"()e% (t bot6 e#)% o t6e e<($(t"o# (#) "t6 re)

(t #"6t (4o# t6e e<($(te) (re( to (r# t6e tr($e4"# p3b4" o t6e pre%e

e<($(t"o#%. 5

O# Otober 1, 197C, t6e tr"(4 o3rt re#)ere) ( )e"%"o# "# ($or o p

re%po#)e#t%, t6e )eret(4 p(rt o 6"6 re()%

IN @IE- O' THE 'OREGOING o#%")er(t"o#% t6e )ee#)(#t P6"4"pp"#e

D"%t(#e Te4ep6o#e !omp(# "% 6ereb or)ere) / to p( t6e p4("#t"

E%teb(# t6e %3m o P20,000.00 (% mor(4 )(m(e% (#) P5,000.00 e<em

)(m(e% to p4("#t" #to#"o E%teb(# t6e %3m o P2,000.00 (% mor(4 )(

(#) P500.00 (% e<emp4(r )(m(e%, "t6 4e(4 r(te o "#tere%t rom t6e )

t6e "4"# o t6e omp4("#t 3#t"4 344 p("). T6e )ee#)(#t "% 6ereb or)ere)

t6e p4("#t" t6e %3m o P;,000.00 (% (ttor#e=% ee%.

/* T6e t6"r)>p(rt )ee#)(#t "% 6ereb or)ere) to re"mb3r%e 6

(mo3#t t6e )ee#)(#t>t6"r) p(rt p4("#t" 6(% p(") to t6e p4("#t". -"t6

(("#%t t6e )ee#)(#t. F

'rom t6"% )e"%"o# bot6 PLDT (#) pr"$(te re%po#)e#t% (ppe(4e), t6e

(ppe(4"# o#4 (% to t6e (mo3#t o )(m(e%. T6"r)>p(rt )ee#)(#t *(rte )(ppe(4.

O# September 25, 1979, t6e Spe"(4 Seo#) D"$"%"o# o t6e !o3rt o p

re#)ere) ( )e"%"o# "# %(") (ppe(4e) (%e, "t6 A3%t"e !or(Jo# A34"(#o r

po#e#te, re$er%"# t6e )e"%"o# o t6e 4oer o3rt (#) )"%m"%%"# t6e om

o re%po#)e#t %po3%e%. It 6e4) t6(t re%po#)e#t E%teb(# %po3%e% ere #e

(#) o#%e3e#t4 (b%o4$e) pet"t"o#er PLDT rom t6e 4("m or )(m(e%. 7

o t6"% )e"%"o# (% ree"$e) b pr"$(te re%po#)e#t% o# Otober 10, 1979

Otober 25, 1979, %(") re%po#)e#t% "4e) ( mot"o# or reo#%")er(t"o#

Otober 2C, 1979. 9 O# A(#3(r 2C, 1980, t6e Spe"(4 N"#t6 D"$"%"o# o t6e

o ppe(4% )e#"e) %(") mot"o# or reo#%")er(t"o#. 10 T6"% re%o43t"o

ree"$e) b re%po#)e#t %po3%e% o# 'ebr3(r 22, 1980. 11

O# 'ebr3(r 29, 1980, re%po#)e#t !o3rt o ppe(4% ree"$e) pr"$(te re%po#

mot"o# or 4e($e o o3rt to "4e ( %eo#) mot"o# or reo#%")er(t"o#,

'ebr3(r 27, 1980. 12 O# (r6 11, 1980, re%po#)e#t o3rt, "# ( re%o

4"e"%e pe##e) b A3%t"e r($(, (44oe) re%po#)e#t% to "4e ( %eo#) m

or reo#%")er(t"o#, "t6"# te# /10 )(% rom #ot"e t6ereo. 1; S(") re%o

(% ree"$e) b pr"$(te re%po#)e#t% o# pr"4 1, 1980 b3t pr"or t6ereto, pr"$(te /( September 25, 1979, ( )e"%"o# (% re#)ere) b t6e !o3rt o ppe(



(% ree"$e) b pr"$(te re%po#)e#t% o# pr"4 1, 1980 b3t pr"or t6ereto, pr"$(te

re%po#)e#t% 6() (4re() "4e) t6e"r %eo#) mot"o# or reo#%")er(t"o# o# (r6 7,

1980. 1C

O# pr"4 ;0, 1980 pet"t"o#er PLDT "4e) (# oppo%"t"o# to (#) or mot"o# to )"%m"%%

%(") %eo#) mot"o# or reo#%")er(t"o#. 15 T6e !o3rt o ppe(4%, "# $"e o t6e

)"$ere#t op"#"o#% o# t6e re%o43t"o# o t6e %eo#) mot"o# or reo#%")er(t"o#,

)e%"#(te) to ())"t"o#(4 :3%t"e% to orm ( )"$"%"o# o "$e. 1F O# September ;,

1980, %(") )"$"%"o# o "$e prom34(te) "t% re%o43t"o#, pe##e) b A3%t"e (r"(#o

. Ko%(, %ett"# (%")e t6e )e"%"o# )(te) September 25, 1979, (% e44 (% t6e

re%o43t"o# )(te) A(#3(r 2C, 1980, (#) ("rm"# "# toto t6e )e"%"o# o t6e 4oero3rt. 17

O# September 19, 1980, pet"t"o#er PLDT "4e) ( mot"o# to %et (%")e (#)or or

reo#%")er(t"o# o t6e re%o43t"o# o September ;, 1980, o#te#)"# t6(t t6e

%eo#) mot"o# or reo#%")er(t"o# o pr"$(te re%po#)e#t %po3%e% (% "4e) o3t o

t"me (#) t6(t t6e )e"%"o# o September 25, 1979 pe##e) b A3%t"e r($( (%

(4re() "#(4. It 3rt6er %3bm"tte) t6ere"# t6(t t6e re4(t"o#%6"p o *(rte (#)

pet"t"o#er PLDT %6o34) be $"ee) "# t6e 4"6t o t6e o#tr(t betee# t6em (#),

3#)er t6e "#)epe#)e#t o#tr(tor r34e, PLDT "% #ot 4"(b4e or t6e (t% o (#

"#)epe#)e#t o#tr(tor. 18 O# ( 11, 1981, re%po#)e#t !o3rt o ppe(4%

prom34(te) "t% re%o43t"o# )e#"# %(") mot"o# to %et (%")e (#)or or

reo#%")er(t"o# (#) ("rm"# "# toto t6e )e"%"o# o t6e 4oer o3rt )(te)

Otober 1, 197C. 19

!om"# to t6"% !o3rt o# ( pet"t"o# or re$"e o# ert"or(r", pet"t"o#er (%%"#% t6e

o44o"# error%

1. Re%po#)e#t !o3rt o ppe(4% erre) "# #ot )e#"# pr"$(te re%po#)e#t%=

%eo#) mot"o# or reo#%")er(t"o# o# t6e ro3#) t6(t t6e )e"%"o# o t6e Spe"(4

Seo#) D"$"%"o#, )(te) September 25, 1979, (#) t6e re%o43t"o# o t6e Spe"(4

N"#t6 D"$"%"o#, )(te) A(#3(r 2C, 1980, (re (4re() "#(4, (#) o# t6e ())"t"o#(4

ro3#) t6(t %(") %eo#) mot"o# or reo#%")er(t"o# "% pro orm(.

2. Re%po#)e#t o3rt erre) "# re$er%"# t6e (ore%(") )e"%"o# (#) re%o43t"o#

(#) "# m"%(pp4"# t6e "#)epe#)e#t o#tr(tor r34e "# 6o4)"# PLDT 4"(b4e to

re%po#)e#t E%teb(# %po3%e%.

o#$e#"e#t re%3me o t6e re4e$(#t proee)"#% "# t6e re%po#)e#t o3rt, (%

%6o# b t6e reor)% (#) ()m"tte) b bot6 p(rt"e%, m( be r(p6"(44 pre%e#te)

(% o44o%

/( September 25, 1979, ( )e"%"o# (% re#)ere) b t6e !o3rt o ppe(

A3%t"e r($( (% po#e#te

/b Otober 10, 1979, ( op o %(") )e"%"o# (% ree"$e) b p

re%po#)e#t%

/ Otober 25, 1979, ( mot"o# or reo#%")er(t"o# (% "4e) b p

re%po#)e#t%

/) A(#3(r 2C, 1980, ( re%o43t"o# (% "%%3e) )e#"# %(") mot"o

reo#%")er(t"o#

/e 'ebr3(r 22, 1980, ( op o %(") )e#"(4 re%o43t"o# (% ree"$

pr"$(te re%po#)e#t%

/ 'ebr3(r 29, 1980, ( mot"o# or 4e($e to "4e ( %eo#) mot"o

reo#%")er(t"o# (% "4e) b pr"$(te re%po#)e#t%

/ (r6 7, 1980, ( %eo#) mot"o# or reo#%")er(t"o# (% "4e) b p

re%po#)e#t%

/6 (r6 11, 1980, ( re%o43t"o# (% "%%3e) (44o"# re%po#)e#t% to

%eo#) mot"o# or reo#%")er(t"o# "t6"# te# /10 )(% rom ree"pt (#)

/" September ;, 1980, ( re%o43t"o# (% "%%3e), pe##e) b A3%t"e re$er%"# t6e or""#(4 )e"%"o# )(te) September 25, 1979 (#) %ett"# (%")

re%o43t"o# )(te) A(#3(r 2C, 1980.

'rom t6e oreo"# 6ro#o4o, e (re o#$"#e) t6(t bot6 t6e mot"o# or

to "4e ( %eo#) mot"o# or reo#%")er(t"o# (#), o#%e3e#t4, %(") %eo#) m

or reo#%")er(t"o# "t%e4 ere "4e) o3t o t"me.

Set"o# 1, R34e 52 o t6e R34e% o !o3rt, 6"6 6() proe)3r(4 o$er#(#e

t"me, pro$")e) t6(t ( %eo#) mot"o# or reo#%")er(t"o# m( be pre%e#te)

"tee# /15 )(% rom #ot"e o t6e or)er or :3)me#t )e)3t"# t6e t"me "#

t6e "r%t mot"o# 6(% bee# pe#)"#. 20 Pr"$(te re%po#)e#t% 6($"# "4e) t6e

mot"o# or reo#%")er(t"o# o# t6e 4(%t )( o t6e re4eme#t(r per"o) o

/15 )(% "t6"# 6"6 to )o %o, t6e 6() o#4 o#e /1 )( rom ree"pt or)er )e#"# %(") mot"o# to "4e, "t6 4e($e o o3rt, ( %eo#) mot"

reo#%")er(t"o#. 21 I# t6e pre%e#t (%e, (ter t6e"r ree"pt o# 'ebr3(r 22

o t6e re%o43t"o# )e#"# t6e"r "r%t mot"o# or reo#%")er(t"o#, p

re%po#)e#t% 6() to reme)"(4 opt"o#%. O# 'ebr3(r 2;, 1980, t6e rem("#"#

/1 )( o t6e (ore%(") re4eme#t(r per"o), t6e o34) 6($e "4e) ( mot

4e($e o o3rt to "4e ( %eo#) mot"o# or reo#%")er(t"o#, o#e"$(b4 "t6 ( re#)ere) "t to 3rt6er (4ter or (me#), m36 4e%% re$oe "t. 25 T6e )e



pr(er or t6e e<te#%"o# o t6e per"o) "t6"# 6"6 to )o %o. O# t6e ot6er 6(#),

t6e o34) 6($e (ppe(4e) t6ro36 ( pet"t"o# or re$"e o# ert"or(r" to t6"% !o3rt

"t6"# "tee# /15 )(% rom 'ebr3(r 2;, 1980. 22 I#%te(), t6e "4e) ( mot"o#

or 4e($e to "4e ( %eo#) mot"o# or reo#%")er(t"o# o# 'ebr3(r 29, 1980, (#)

%(") %eo#) mot"o# or reo#%")er(t"o# o# (r6 7, 1980, bot6 o 6"6 mot"o#%

ere b t6e# t"me>b(rre).

!o#%e3e#t4, (ter t6e e<p"r(t"o# o# 'ebr3(r 2C, 1980 o t6e or""#(4 "tee#

/15 )( per"o), t6e r3##"# o 6"6 (% %3%pe#)e) )3r"# t6e pe#)e# o t6e

"r%t mot"o# or reo#%")er(t"o#, t6e !o3rt o ppe(4% o34) #o 4o#er $(4")4 t(e3rt6er proee)"#% o# t6e mer"t% o t6e (%e, m36 4e%% to (4ter, mo)" or

reo#%")er "t% (ore%(") )e"%"o# (#) or re%o43t"o#. T6e "4"# o t6e mot"o# or

4e($e to "4e ( %eo#) mot"o# or reo#%")er(t"o# b 6ere"# re%po#)e#t% o#

'ebr3(r 29, 1980 (#) t6e %3b%e3e#t "4"# o t6e mot"o# "t%e4 o# (r6 7,

1980, (ter t6e e<p"r(t"o# o t6e re4eme#t(r per"o) to "4e t6e %(me, pro)3e)

#o 4e(4 eet%. O#4 ( mot"o# or re>6e(r"# or reo#%")er(t"o# "4e) "# t"me %6(44

%t( t6e "#(4 or)er or :3)me#t %o36t to be re>e<(m"#e). 2;

T6e o#%e3e#t"(4 re%34t "% t6(t t6e re%o43t"o# o re%po#)e#t o3rt o (r6 11,

1980 r(#t"# pr"$(te re%po#)e#t%= (ore%(") mot"o# or 4e($e (#), "$"# t6em

(# e<te#%"o# ote# /10 )(% to "4e ( %eo#) mot"o# or reo#%")er(t"o#, "% #344

(#) $o"). T6e per"o) or "4"# ( %eo#) mot"o# or reo#%")er(t"o# 6() (4re()

e<p"re) 6e# pr"$(te re%po#)e#t% %o36t 4e($e to "4e t6e %(me, (#) re%po#)e#to3rt #o 4o#er 6() t6e poer to e#tert("# or r(#t t6e %(") mot"o#. T6e (ore%(")

e<te#%"o# o te# /10 )(% or pr"$(te re%po#)e#t% to "4e t6e"r %eo#) mot"o# or

reo#%")er(t"o# (% o #o 4e(4 o#%e3e#e %"#e "t (% "$e# 6e# t6ere (%

#o more per"o) to e<te#). It "% (# e4eme#t(r r34e t6(t (# (pp4"(t"o# or

e<te#%"o# o t"me m3%t be "4e) pr"or to t6e e<p"r(t"o# o t6e per"o) %o36t to be

e<te#)e). 2C Nee%%(r"4, t6e )"%ret"o# o re%po#)e#t o3rt to r(#t %(")

e<te#%"o# or "4"# ( %eo#) mot"o# or reo#%")er(t"o# "% o#)"t"o#e) 3po# t6e

t"me4"#e%% o t6e mot"o# %ee"# t6e %(me.

No (ppe(4 6($"# bee# t(e# %e(%o#(b4, t6e re%po#)e#t o3rt=% )e"%"o#, )(te)

September 25, 1979, be(me "#(4 (#) e<e3tor o# (r6 9, 1980. T6e

%3b%e3e#t re%o43t"o#% o re%po#)e#t o3rt, )(te) (r6 11, 1980 (#)

September ;, 1980, (44o"# pr"$(te re%po#)e#t% to "4e ( %eo#) mot"o# or

reo#%")er(t"o# (#) re$er%"# t6e or""#(4 )e"%"o# (re #344 (#) $o") (#) (##ot

)"%t3rb t6e "#(4"t o t6e :3)me#t #or re%tore :3r"%)"t"o# to re%po#)e#t o3rt.

T6"% "% b3t "# 4"#e "t6 t6e (epte) r34e t6(t o#e ( )e"%"o# 6(% beome "#(4

(#) e<e3tor "t "% remo$e) rom t6e poer (#) :3r"%)"t"o# o t6e o3rt 6"6

re#)ere) (#e "% #344 (#) $o"). 2F T6e o3rt=% "#6ere#t poer to orret "t

error% %6o34) be e<er"%e) beore t6e "#(4"t o t6e )e"%"o# or or)er %o36t

orrete), ot6er"%e 4"t"(t"o# "44 be e#)4e%% (#) #o 3e%t"o# o3

o#%")ere) "#(44 %ett4e). 4t6o36 t6e r(#t"# or )e#"(4 o ( mot"

reo#%")er(t"o# "#$o4$e% t6e e<er"%e o )"%ret"o#, 27 t6e %(me %6o34)

e<er"%e) 6"m%"(44, (pr""o3%4 or (rb"tr(r"4, b3t pr3)e#t4 "# o#orm"

4(, :3%t"e, re(%o# (#) e3"t. 28

Pre%"#)"# rom t6e (ore%(") proe)3r(4 4(p%e% "#to t6e %3b%t(#t"$e me

t6e (%e, e "#) #o error "# t6e "#)"#% o t6e re%po#)e#t o3rt "# "t% or)e"%"o# t6(t t6e (")e#t 6"6 bee44 pr"$(te re%po#)e#t% (% )3e to t6e

)"4"e#e o re%po#)e#t #to#"o E%teb(# (#) (% #ot "mp3t(b4e to #e

om"%%"o# o# t6e p(rt o pet"t"o#er PLDT. S36 "#)"#% ere re(6e) (

e<6(3%t"$e (%%e%%me#t (#) e$(43(t"o# o t6e e$")e#e o# reor), (% e$")

b t6e re%po#)e#t o3rt=% re%o43t"o# o A(#3(r 2C, 1980 6"6 e 3ot

(ppro$(4

'"r%t. P4("#t"=% :eep (% r3##"# (4o# t6e "#%")e 4(#e o L(%o# Street. I

rem("#e) o# t6(t "#%")e 4(#e, "t o34) #ot 6($e 6"t t6e !!IDENT O&ND.

E<6"b"t * %6o%, t6ro36 t6e t"rem(r%, t6(t t6e !!IDENT O&ND (%

t6e :eep %er$"# rom t6e 4et t6(t "%, %er$"# rom t6e "#%")e 4(#e.

(3%e) t6e %er$"# "% #ot )"%4o%e) b3t, (% t6e (3%e o t6e (")e#t, )ee(##ot be m()e 4"(b4e or t6e )(m(e% %3ere) b p4("#t"%. T6e (")e#

#ot )3e to t6e (b%e#e o (r#"# %"#%, b3t to t6e 3#e<p4("#e) (br3pt %e

o t6e :eep rom t6e "#%")e 4(#e. T6(t m( e<p4("# p4("#t">63%b(#)=% "#%"

t6(t 6e )") #ot %ee t6e !!IDENT O&ND or 6"6 re(%o# 6e r(# "#to "t.

Seo#). T6(t p4("#t"=% Aeep (% o# t6e "#%")e 4(#e beore "t %er$e) to 6

!!IDENT O&ND o34) 6($e bee# orrobor(te) b ( p"t3re %6o"# L

Street to t6e %o3t6 o t6e !!IDENT O&ND.

It 6(% bee# %t(te) t6(t t6e )"t6e% (4o# L(%o# Street 6() (4re()

o$ere) e<ept t6e ; or C meter% 6ere t6e !!IDENT O&ND (% 4o

E<6"b"t *>1 %6o% t6(t t6e )"t6e% o# L(%o# Street #ort6 o t6e !!

O&ND 6() (4re() bee# o$ere), b3t #ot "# %36 ( ( (% to (44o t6e 4(#e to be ree4 (#) o#$e#"e#t4 p(%%(b4e to $e6"4e%. T6e %"t3(t"o# o34)

bee# or%e to t6e %o3t6 o t6e !!IDENT O&ND or 6"6 re(%o# #o p"t

t6e !!IDENT O&ND ("# %o3t6 (% t(e#.

T6"r). P4("#t"=% :eep (% #ot r3##"# (t 25 "4ometer% (# 6o3r (% p4("#t"> b(%" t6(t pr"$(te re%po#)e#t% (##ot 6(re PLDT or t6e"r "#:3r"e% 6ere



63%b(#) 4("me). t t6(t %pee), 6e o34) 6($e br(e) t6e $e6"4e t6e mome#t "t

%tr3 t6e !!IDENT O&ND. T6e :eep o34) #ot 6($e 4"mbe) t6e !!IDENT

O&ND %e$er(4 eet (% "#)"(te) b t6e t"rem(r% "# E<6"b"t *. T6e :eep m3%t

6($e bee# r3##"# 3"te (%t. I t6e :eep 6() bee# br(e) (t 25 "4ometer% (#

6o3r, p4("#t"% o34) #ot 6($e bee# t6ro# (("#%t t6e "#)%6"e4) (#) t6e

o34) #ot 6($e %3ere) t6e"r "#:3r"e%.

'o3rt6. I t6e (")e#t )") #ot 6(ppe# be(3%e t6e :eep (% r3##"# 3"te (%t

o# t6e "#%")e 4(#e (#) or %ome re(%o# or ot6er "t 6() to %er$e %3))e#4 to t6e

r"6t (#) 6() to 4"mb o$er t6e !!IDENT O&ND, t6e# p4("#t">63%b(#) 6() #ote<er"%e) t6e )"4"e#e o ( oo) (t6er o ( (m"4 to ($o") t6e (")e#t. -"t6 t6e

)r"JJ4e, 6e %6o34) #ot 6($e r3# o# )"m 4"6t%, b3t %6o34) 6($e p3t o# 6"% re34(r

4"6t% 6"6 %6o34) 6($e m()e 6"m %ee t6e !!IDENT O&ND "# t"me. I 6e (%

r3##"# o# t6e o3t%")e 4(#e (t 25 "4ometer% (# 6o3r, e$e# o# )"m 4"6t%, 6"%

("43re to %ee t6e !!IDENT O&ND "# t"me to br(e t6e (r (% #e4"e#e o#

6"% p(rt. T6e !!IDENT O&ND (% re4(t"$e4 b" (#) $"%"b4e, be"# 2 to ; eet

6"6 (#) 1>12 eet ")e. I 6e )") #ot %ee t6e !!IDENT O&ND "# t"me, 6e

o34) #ot 6($e %ee# (# (r#"# %"# e"t6er. He #e o t6e e<"%te#e (#)

4o(t"o# o t6e !!IDENT O&ND, 6($"# %ee# "t m(# pre$"o3% t"me%. -"t6

or)"#(r pre(3t"o#, 6e %6o34) 6($e )r"$e# 6"% :eep o# t6e #"6t o t6e (")e#t

%o (% to ($o") 6"tt"# t6e !!IDENT O&ND. 29

T6e (bo$e "#)"#% 4e(r4 %6o t6(t t6e #e4"e#e o re%po#)e#t #to#"oE%teb(# (% #ot o#4 o#tr"b3tor to 6"% "#:3r"e% (#) t6o%e o 6"% "e b3t oe% to

t6e $er (3%e o t6e o3rre#e o t6e (")e#t, (% o#e o "t% )eterm"#"#

(tor%, (#) t6ereb pre43)e% t6e"r r"6t to reo$er )(m(e%. ;0 T6e per"4% o

t6e ro() ere #o# to, 6e#e (ppre"(te) (#) (%%3me) b, pr"$(te

re%po#)e#t%. * e<er"%"# re(%o#(b4e (re (#) pr3)e#e, re%po#)e#t #to#"o

E%teb(# o34) 6($e ($o")e) t6e "#:3r"o3% o#%e3e#e% o 6"% (t, e$e# (%%3m"#

(r3e#)o t6(t t6ere (% %ome (44ee) #e4"e#e o# t6e p(rt o pet"t"o#er.

T6e pre%e#e o (r#"# %"#% o34) #ot 6($e omp4ete4 pre$e#te) t6e (")e#t

t6e o#4 p3rpo%e o %(") %"#% (% to "#orm (#) (r# t6e p3b4" o t6e pre%e#e

o e<($(t"o#% o# t6e %"te. T6e pr"$(te re%po#)e#t% (4re() #e o t6e pre%e#e

o %(") e<($(t"o#%. It (% #ot t6e 4( o #o4e)e o t6e%e e<($(t"o#% 6"6

(3%e) t6e :eep o re%po#)e#t% to (44 "#to t6e e<($(t"o# b3t t6e 3#e<p4("#e)

%3))e# %er$"# o t6e :eep rom t6e "#%")e 4(#e to(r)% t6e (")e#t mo3#). %

op"#e) "# %ome 3(rter%, t6e om"%%"o# to perorm ( )3t, %36 (% t6e p4("# o

(r#"# %"#% o# t6e %"te o t6e e<($(t"o#, o#%t"t3te% t6e pro<"m(te (3%e o#4

6e# t6e )o"# o t6e %(") om"tte) (t o34) 6($e pre$e#te) t6e "#:3r. ;1 It "%

o# ("43re to e<er"%e )3e (#) re(%o#(b4e (re (% t6e (3%e t6ereo. It "

( %o"et(4 #orm (#) #ee%%"t t6(t o#e %6o34) e<er"%e ( re(%o#(b4e )e

(3t"o# or 6"% o# protet"o#. '3rt6ermore, re%po#)e#t #to#"o E%teb(# 6(

4(%t 4e(r 6(#e or opport3#"t to ($o") t6e (")e#t, #ot"t6%t(#)"#

#e4"e#e 6e "mp3te% to pet"t"o#er PLDT. % ( re%")e#t o L(%o# Stre

p(%%e) o# t6(t %treet (4mo%t e$er)( (#) 6() #o4e)e o t6e pre%e#

4o(t"o# o t6e e<($(t"o#% t6ere. It (% 6"% #e4"e#e t6(t e<po%e) 6"m (

"e to )(#er, 6e#e 6e "% %o4e4 re%po#%"b4e or t6e o#%e3e#e%

"mpr3)e#e. L"bLe<

oreo$er, e (4%o %3%t("# t6e "#)"#% o re%po#)e#t !o3rt o ppe(4%

or""#(4 )e"%"o# t6(t t6ere (% "#%3""e#t e$")e#e to pro$e (# #e4"e#

t6e p(rt o PLDT. -e 6($e or o#%")er(t"o# o#4 t6e %e4>%er$"# te%t"mo

re%po#)e#t #to#"o E%teb(# (#) t6e 3#$er""e) p6otor(p6 o mere4 ( por

t6e %e#e o t6e (")e#t. T6e (b%e#e o ( po4"e report o t6e "#")e#t (#

#o#>%3bm"%%"o# o ( me)"(4 report rom t6e 6o%p"t(4 6ere pr"$(te re%po#

ere (44ee)4 tre(te) 6($e #ot e$e# bee# %(t"%(tor"4 e<p4("#e).

% (pt4 ob%er$e) b re%po#)e#t o3rt "# "t% (ore"te) e<te#)e) re%o43t

A(#3(r 2C, 1980

/( T6ere (% #o t6"r) p(rt ee"t#e%% o t6e (")e#t. % to 6o

(")e#t o3rre), t6e !o3rt (# o#4 re4 o# t6e te%t"mo#"(4 e$")e#e o p4(t6em%e4$e%, (#) %36 e$")e#e %6o34) be $er (re344 e$(43(te)

)ee#)(#t, (% t6e p(rt be"# 6(re), be"# "$e# t6e be#e"t o (# )

De"#"te4 "t6o3t (%r"b"# t6e %(me mot"$(t"o# to p4("#t"%, (#ot6er p

o34) 6($e )e4"ber(te4 e#"#eere) ( %"m"4(r (")e#t "# t6e 6ope (#) e<pe

t6(t t6e !o3rt (# r(#t 6"m %3b%t(#t"(4 mor(4 (#) e<emp4(r )(m(e% ro

b" orpor(t"o# t6(t )ee#)(#t "%. T6e %t(teme#t "% m()e o#4 to %tre

)"%()$(#t(eo3% po%"t"o# o )ee#)(#t 6"6 o34) 6($e e<treme )""

o#te%t"# %36 per%o#=% 4("m. I t6ere ere #o "t#e%% or reor) ($("4(b4e

t6e po4"e )ep(rtme#t o *(o4o), )ee#)(#t o34) #ot be (b4e to )eterm

"t%e4 6"6 o t6e o#4"t"# te%t"mo#"e% o p4("#t"% "% orret (% to t6e re

#o#>report o t6e (")e#t to t6e po4"e )ep(rtme#t. ;2

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o#%t"t3t"$e o #e4"e#e m3%t be ("rm(t"$e4 e%t(b4"%6e) b om

e$")e#e. ;; -6o%oe$er re4"e% o# #e4"e#e or 6"% (3%e o (t"o# 6(

b3r)e# "# t6e "r%t "#%t(#e o pro$"# t6e e<"%te#e o t6e %(me " o#te%te),



ot6er"%e 6"% (t"o# m3%t ("4. LLpr

-HERE'ORE, t6e re%o43t"o#% o re%po#)e#t !o3rt o ppe(4%, )(te) (r6 11,

1980 (#) September ;, 1980, (re 6ereb SET SIDE. It% or""#(4 )e"%"o#,

prom34(te) o# September 25, 1979, "% 6ereb REINSTTED (#) ''IRED.

SO ORDERED.

e4e#"o>Herrer(, P(r(%, P()"44( (#) S(rm"e#to, AA., o#3r.[G.R. No. F5295. (r6 10, 1987.]

PHOENI? !ONSTR&!TION, IN!. (#) RNDO &. !R*ONEL, pet"t"o#er%, $%

INTEREDITE PPELLTE !O&RT (#) LEONRDO DIONISIO, re%po#)e#t%.

D E ! I S I O N

'ELI!INO, A p

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re)3e) ((r) o )(m(e% m()e b t6e re%po#)e#t (ppe44(te o3rt.

-HERE'ORE, t6e )e"%"o# o t6e re%po#)e#t (ppe44(te o3rt "% mo)""e) b

re)3"# t6e (re(te (mo3#t o ompe#%(tor )(m(e%, 4o%% o e<pete)

%36 (mo3#t. !o%t% (("#%t t6e pet"t"o#er%. )p6"4

SO ORDERED.

+(p, N(r$(%(, !r3J, G(#(o (#) S(rm"e#to, AA ., o#3r.

e4e#"o>Herrer(, A . , o# o""(4 4e($e.




Manila

+1IR IHI"IN

G.R. No. L-47379 May 16, 19

NATONAL )O:ER COR)ORATON, petitioner,vs.!ONORA"LE COURT O/ A))EAL an+ ENGNEERNG CONTRUCTON, NC., respondents.

G.R. No. L-4741 May 16, 19

ENGNEERNG CONTRUCTON, NC., petitioner,vs.

COUTRT O/ A))EAL an+ NATONAL )O:ER COR)ORATON, respondents.

Raymundo A. Armovit for private respondent in #4G/.

The %olicitor eneral for petitioner.

GUTERRE, JR., J.:

&hese consolidated petitions see; to set aside the decision of the respondent C ppeals which adudged the National Power Corporation lia(le for da'ages a/ngineering Construction, Inc. &he appellate court, however, reduced the a'oda'ages awarded ($ the trial court. "ence, (oth parties filed their respective petitioNational Power Corporation NPC- in D.A. No. 4:*:9, >uestioning the decision of theof ppeals for holding it lia(le for da'ages and the /ngineering Construction, Inc. D.A. No. 4:4+, >uestioning the sa'e decision for reducing the conse>uential da'ag

attorne$8s fees and for eli'inating the e7e'plar$ da'ages.

&he facts are succinctl$ su''ari?ed ($ the respondent Court of ppeals, as follows0

6n ugust 4, 94, plaintiff /ngineering Construction, Inc., (esuccessful (idder, e7ecuted a contract in )anila with the N1aterwor;s and #ewerage uthorit$ N1#-, where($ the undertoo; to furnish all tools, la(or, e>uip'ent, and 'aterials not fur($ 6wner-, and to construct the proposed 2nd lpo%Bicti &unnel, Inta6utlet #tructures, and ppurtenant #tructures, and ppurtenant FeatuNor?agara$, Bulacan, and to co'plete said wor;s within eight hundredcalendar da$s fro' the date the Contractor receives the for'al noproceed /7h. -.

&he proect involved two 2- 'aor phases0 the first phase co'prisintunnel wor; covering a distance of seven :- ;ilo'eters, passing throu'ountain, fro' the Ipo river, a part of Nor?agara$, Bulacan, where <a' of the defendant National Power Corporation is located, to Biother phase consisting of the outwor;s at (oth ends of the tunnel.

B$ #epte'(er 9:, the plaintiff corporation alread$ had co'pleted t'aor phase of the wor;, na'el$, the tunnel e7cavation wor;. #o'e pof the outwor;s at the Bicti site were still under construction. s soonplaintiff corporation had finished the tunnel e7cavation wor; at the Bicall the e>uip'ent no longer needed there were transferred to the Iwhere so'e proects were $et to (e co'pleted.

&he record shows that on Nove'(er 4,9:, t$phoon 81el'ing8 hit C

=u?on, passing through defendant8s ngat "$dro%electric Proect and lpo, Nor?agara$, Bulacan. #trong winds struc; the proect area, andrains inter'ittentl$ fell. <ue to the heav$ downpour, the water in the reof the ngat <a' was rising perilousl$ at the rate of si7t$ - centi'per hour. &o prevent an overflow of water fro' the da', since the watehad reached the danger height of 22 'eters a(ove sea level, the def

corporation caused the opening of the spillwa$ gates.! pp. 43%4, =%4:*:9,Aollo-

at the rate of P4. an hour for hours a da$. &he evidence, hoshows that the appellee (ought a crane also a crawler t$pe, on Nov



&he appellate court sustained the findings of the trial court that the evidence preponlderantl$esta(lished the fact that due to the negligent 'anner with which the spillwa$ gates of the

ngat <a' were opened, an e7traordinar$ large volu'e of water rushed out of the gates, andhit the installations and construction wor;s of /CI at the lpo site with terrific i'pact, as aresult of which the latter8s stoc;pile of 'aterials and supplies, ca'p facilities and per'anentstructures and accessories either washed awa$, lost or destro$ed.

&he appellate court further found that0

It cannot (e pretended that there was no negligence or that the appellante7ercised e7traordinar$ care in the opening of the spillwa$ gates of the ngat<a'. )aintainers of the da' ;new ver$ well that it was far 'ore safe to openthe' graduall$. But the spillwa$ gates were opened onl$ when t$phoon1el'ing was alread$ at its height, in a vain effort to race against ti'e andprevent the overflow of water fro' the da' as it 8was rising dangerousl$ atthe rate of si7t$ centi'eters per hour. 8ction could have (een ta;en as earl$as Nove'(er *, 9:, when the water in the reservoir was still low. t thatti'e, the gates of the da' could have (een opened in a regulated 'anner.=et it (e stressed that the appellant ;new of the co'ing of the t$phoon fourda$s (efore it actuall$ hit the proect area. p. 3*, =%4:*:9, Aollo-

s to the award of da'ages, the appellate court held0

1e co'e now to the award of da'ages. &he appellee su('itted a list ofesti'ated losses and da'ages to the tunnel proect Ipo side- caused ($ theinstant flooding of the ngat Aiver /7h. %-. &he da'ages were ite'i?ed infour categories, to wit0 Ca'p Facilities P33,:.5 />uip'ent, Parts andPlant P*:3,39.35 )aterials P:,:3.+5 and Per'anent #tructuresand accessories P*:,23., with an aggregate total a'ount ofP:3,:+3.*. &he list is supported ($ several vouchers which were allsu('itted as /7hi(its J to )%*+ a, N to 6, P to U%2 and @ to X% %a @ide0Folders Nos. to 4-. &he appellant did not su('it proofs to traverse theafore'entioned docu'entar$ evidence. 1e hold that the lower court did notco''it an$ error in awarding P :3,:+3.* as actual or co'pensator$da'ages.

"owever, 1e cannot sustain the award of P***,2. as conse>uentialda'ages. &his a'ount is (ro;en down as follows0 P2*,2. as and forthe rentals of a crane to te'poraril$ replace the one !destro$ed (e$ondrepair,! and P2,. as one 'onth (onus which the appellee failed toreali?e in accordance with the contract which the appellee had withN1#. #aid rental of the crane allegedl$ covered the period of one $ear

, 9:, si7 - da$s after the incident in >uestion /7h N- nd accordthe lower court, which finding was never assailed, the appellee resu'nor'al construction wor; on the Ipo% Bicti Proect after a stoppage one 'onth. &here is no evidence when the appellee received the cranthe seller, sian /nterprise =i'ited. But there was an agree'ent thship'ent of the goods would (e effected within da$s fro' the opethe letter of credit /7h. N-.OPreQQanS2U It appearing that the contsale was consu''ated, 1e 'ust conclude or at least assu'e that thewas delivered to the appellee within da$s as stipulated. &he appellecould have availed of the services of another crane for a period of on

'onth after a wor; stoppage of one 'onth- at the rate of P 4. an h hours a da$ or a total of P 9,2. as rental.

But the value of the new crane cannot (e included as part of actual da(ecause the old was reactivated after it was repaired. &he cost of thewas P ::,. as shown in ite' No. under the />uip'ent, PaPlants categor$ /7h. %-, which a'ount of repair was alread$ incluthe actual or co'pensator$ da'ages. pp. 34%3, =%4:*:9, Aollo-

&he appellate court li;ewise reected the award of unreali?ed (onus fro' N1#a'ount of P2,. co'puted at P4,. a da$ in case construction is finishedthe specified ti'e, i.e., within + calendar da$s-, considering that the incident occurre'ore than three *- $ears or one thousand one hundred sevent$ ,:- da$s. &he coueli'inated the award of e7e'plar$ da'ages as there was no gross negligence on the

NPC and reduced the a'ount of attorne$8s fees fro' P3,. to P*,..

In these consolidated petitions, NPC assails the appellate court8s decision aserroneous on the ground that the destruction and loss of the /CI8s e>uip'ent and fawere due to force 'aeure. It argues that the rapid rise of the water level in the reservo

ngat <a' due to heav$ rains (rought a(out ($ the t$phoon was an e7traooccurrence that could not have (een foreseen, and thus, the su(se>uent release othrough the spillwa$ gates and its resultant effect, if an$, on /CI8s e>uip'ent and fa'a$ rightl$ (e attri(uted to force 'aeure.

6n the other hand, /CI assails the reduction of the conse>uential da'agesP***,2. to P9,. on the grounds that the appellate court had no (aconcluding that /CI ac>uired a new Crawler%t$pe crane and therefore, it onl$ canrentals for the te'porar$ use of the leased crane for a period of one 'onth5 and th

award of P4,. a da$ or P2,. a 'onth (onus is ustified since the li'itation on /CI8s contract with N1# had dual effects, i.e., (onus for earlier co'and li>uidated da'ages for dela$ed perfor'ance5 and in either case at the rate of P4,dail$. &hus, since NPC8s negligence co'pelled wor; stoppage for a period of one 'onsaid award of P2,. is ustified. /CI further assailes the reduction of attorne$and the total eli'ination of e7e'plar$ da'ages.

Both petitions are without 'erit. findings of fact when supported ($ su(stantial evidence $tona v. C ppeals, * #CA 3:3 K9+3L5 Collector of Custo's of )aI t di t ll t C t *: #CA * K9+3L 6 th th



It is clear fro' the appellate court8s decision that (ased on its findings of fact and that of thetrial court8s, petitioner NPC was undou(tedl$ negligent (ecause it opened the spillwa$ gatesof the ngat <a' onl$ at the height of t$phoon !1el'ing! when it ;new ver$ well that it wassafer to have opened the sa'e graduall$ and earlier, as it was also undenia(le that NPC;new of the co'ing t$phoon at least four da$s (efore it actuall$ struc;. nd even though thet$phoon was an act of Dod or what we 'a$ call force 'aeure, NPC cannot escape lia(ilit$(ecause its negligence was the pro7i'ate cause of the loss and da'age. s we have ruledin Juan <. -akpil ' %ons v. Court of Appeals, 44 #CA 39, %:-0

&hus, if upon the happening of a fortuitous event or an act of Dod, thereconcurs a corresponding fraud, negligence, dela$ or violation orcontravention in an$ 'anner of the tenor of the o(ligation as provided for in

rticle : of the Civil Code, which results in loss or da'age, the o(ligorcannot escape lia(ilit$.

&he principle e'(odied in the act of Dod doctrine strictl$ re>uires that the act'ust (e one occasioned e7clusivel$ ($ the violence of nature and hu'anagencies are to (e e7cluded fro' creating or entering into the cause of the'ischief. 1hen the effect, the cause of which is to (e considered, is found to(e in part the result of the participation of 'an, whether it (e fro' activeintervention or neglect, or failure to act, the whole occurrence is there($hu'ani?ed, as it was, and re'oved fro' the rules applica(le to the acts ofDod. Corpus uris, pp. :4%:3-.

&hus, it has (een held that when the negligence of a person concurs with anact of Dod in producing a loss, such person is not e7e'pt fro' lia(ilit$ ($showing that the i''ediate cause of the da'age was the act of Dod. &o (ee7e'pt fro' lia(ilit$ for loss (ecause of an act of Dod, he 'ust (e free fro'an$ previous negligence or 'isconduct ($ which the loss or da'age 'a$have (een occasioned. Fish G /lective Co. v. Phil. )otors, 33 Phil. 295&uc;er v. )ilan 49 6.D. 4*:95 =i'pangco G #ons v. Eangco #tea'ship Co.,*4 Phil. 394, 45 =asa' v. #'ith, 43 Phil. 3:-.

Further'ore, the >uestion of whether or not there was negligence on the part of NPC is a>uestion of fact which properl$ falls within the urisdiction of the Court of ppeals and will not(e distur(ed ($ this Court unless the sa'e is clearl$ unfounded. &hus, in Tolentino v. Courtof appeals, 3 #CA 2, *- we ruled0

)oreover, the findings of fact of the Court of ppeals are generall$ final andconclusive upon the #upre'e Court =eonardo v. Court of ppeals, 2#CA +9 K9+*L. In fact it is settled that the #upre'e Court is not supposedto weigh evidence (ut onl$ to deter'ine its su(stantiall$ NuMe? v.#andigan(a$an, #CA 4** K9+2L and will generall$ not distur( said

Inter'ediate ppellate Court, *: #CA * K9+3L. 6n the othesu(stantial evidence is defined as such relevant evidence as a reas'ind 'ight accept as ade>uate to support a conclusion PhilippineProducts, Inc. v. Court of Industrial Aelations, 9 #CA *3 K9:9L5 Co''ission v. =ood, 2: #CA :3: K9+4L5 Canete v. 1CC, * #CAK9+3L-

&herefore, the respondent Court of ppeals did not err in holding the NPC lia(le for da'

=i;ewise, it did not err in reducing the conse>uential da'ages fro' P***,2P9,.. s shown ($ the records, while there was no categorical state'ent or ad'on the part of /CI that it (ought a new crane to replace the da'aged one, a sales cwas presented to the effect that the new crane would (e delivered to it ($ sian /ntewithin da$s fro' the opening of the letter of credit at the cost of P,**.:3. &hwas 'ade ($ sian /nterprises a few da$s after the flood. s co'pared to the a'oP,**.:3 for a (rand new crane and pa$ing the alleged a'ount of P4,. a drental for the use of a te'porar$ crane, which use petitioner /CI alleged to have lasteperiod of one $ear, thus, totalling P2,., plus the fact that there was alread$ acontract (etween it and sian /nterprises, there is no reason wh$ /CI should opt to te'porar$ crane for a period of one $ear. &he appellate court also found that the da'crane was su(se>uentl$ repaired and reactivated and the cost of repair was P::,&herefore, it included the said a'ount in the award of of co'pensator$ da'ages, (ut value of the new crane. 1e do not find an$thing erroneous in the decision of the apcourt that the conse>uential da'ages should represent onl$ the service of the te'

crane for one 'onth. contrar$ ruling would result in the unust enrich'ent of /CI.

&he P2,. (onus was also properl$ eli'inated as the sa'e was granted ($ tcourt on the pre'ise that it represented /CI8s lost opportunit$ !to earn the one 'onth fro' N1# ... .! s stated earlier, the loss or da'age to /CI8s e>uip'ent and faoccurred long after the stipulated deadline to finish the construction. No (onus, thecould have (een possi(l$ earned ($ /CI at that point in ti'e. &he supposed li>uda'ages for failure to finish the proect within the stipulated period or the oppositeclai' for (onus is not clearl$ presented in the records of these petitions. It is not showN1# i'posed the'.

s to the >uestion of e7e'plar$ da'ages, we sustain the appellate court in eli'inatsa'e since it found that there was no (ad faith on the part of NPC and that neither clatter8s negligence (e considered gross. In ?ee $ua ion& 8lectrical 8*uipment C

Reyes, 43 #CA :*, :9- we ruled0

Neither 'a$ private respondent recover e7e'plar$ da'ages since heentitled to 'oral or co'pensator$ da'ages, and again (ecaupetitioner is not shown to have acted in a wanton, fraudulent, rec;l

oppressive 'anner rt. 22*4, Civil Code5 Eutu; v. )anila /lectric Co., 2#CA *::5 Francisco v. Dovern'ent #ervice Insurance #$ste', : #CA3::5 Dutierre? v @illegas + #CA 32:5 ir France v Carrascoso + #CA

&he case arose fro' a vehicular collision which occurred at a(out 0* in the 'orninNove'(er 9+:. Aogelio )onterola, a licensed driver, was traveling on (oard his 'otorc$cle towards )angago$ on the right lane along a dust$ national road in Bislig #



3::5 Dutierre? v. @illegas, + #CA 32:5 ir France v. Carrascoso, + #CA335 Pan Pacific Phil.- v. Phil. dvertising Corp., 2* #CA 9::5 )archan v.)endo?a, 24 #CA +++-.

1e also affir' the reduction of attorne$8s fees fro' P3,. to P*,.. &here are noco'pelling reasons wh$ we should set aside the appellate court8s finding that the lattera'ount suffices for the services rendered ($ /CI8s counsel.

1"/A/F6A/, the petitions in D.A. No. 4:*:9 and D.A. No. 4:4+ are (oth <I#)I##/< for=CJ 6F )/AI&. &he decision appealed fro' is FFIA)/<.

#6 6A</A/<.

<ernan (Chairman), <eliciano, ;idin and Cortes, JJ., concur.


Manila

+1IR IHI"IN

G.R. No. 10163 /*ruary 3, 1995

L"C AR CARGO, NC. /ERNANDO M. U an+ JAME TANO, petitioners,vs.!ON. COURT O/ A))EAL, /our($ D#;#%#on, !ER:N MONTEROLA y OON-OON,r*'r*%*n(*+ y )ATROCENA GRONDANO y MONTEROLA, an+ )ATROCENAGRONDANO y MONTEROLA, respondents.

TUG, J.:

In this petition for review, the application of the doctrines of !pro7i'ate cause! and !last clearchance! is, once again, (eing put to test. &he petition >uestions the decision of the Court of

ppeals, dated + ul$ 99, which has reversed that of the trial court.

'otorc$cle towards )angago$ on the right lane along a dust$ national road in Bislig, #del #ur. t a(out the sa'e ti'e, a cargo van of the =BC ir Cargo Incorporated, drivdefendant ai'e &ano, r., was co'ing fro' the opposite direction on its wa$ to the

irport. 6n (oard were passengers Fernando Eu, )anager of =BC ir Cargo, and hwho was seated (eside &ano. 1hen &ano was approaching the vicinit$ of the airpoentrance on his left, he saw two vehicles racing against each other fro' the opdirection. &ano stopped his vehicle and waited for the two racing vehicles to pass (stirred cloud of dust 'ade visi(ilit$ e7tre'el$ (ad. Instead of waiting for the dust to s&ano started to 'a;e a sharp left turn towards the airport road. 1hen he was a(out tothe center of the right lane, the 'otorc$cle driven ($ )onterola suddenl$ e'erged fr

dust and s'ashed head%on against the right side of the =BC van. )onterola died frosevere inuries he sustained.

cri'inal case for !ho'icide thru rec;less i'prudence! was filed against &ano. cwas li;ewise instituted ($ the heirs of deceased )onterola against &ano, along with FeEu and =BC ir Cargo Incorporated, for the recover$ of da'ages. &he two cases we

ointl$ ($ the Aegional &rial Court, Branch 29, of #urigao del #ur.

6n 29 ul$ 99, the trial court dis'issed (oth cases on the ground that the pro7i'ateof the !accident! was the negligence of deceased Aogelio )onterola.

Private respondent appealed the dis'issal of the civil case to the Court of ppeals. ul$ 99, the appellate court reversed the court a *uo. It held0

1"/A/F6A/, the udg'ent appealed fro' is A/@/A#/<, and anothis here($ rendered ordering the defendants ai'e &ano and =BC ir Inc. to ointl$ and severall$ pa$ the plaintiff Patrocinia )onterola the foa'ounts0

&o #"/A1IN )6N&/A6=0

. Inde'nit$ for the death Aogelio )onterola P3,.

2. For )oral da'ages P2,.

&o P&A6CINI DA6N<IN6 E )6N&/A6=0

*. ctual <a'ages P:,*.

4. "ospitals G Burial /7penses 3,.

3. ttorne$s8 Fees and e7pensesof =itigation ,.

nd it was at this uncture, when $ou were to follotheor$, when $ou started $our =BC van again and swto the left leading to the Bislig airportO



Plus the costs.

ctual pa$'ent of the afore'entioned a'ounts should however (e reducedto twent$ 2- percent. 1

In the instant petition for review, petitioners contend that

. &he Court of ppeals erred in finding that ai'e &ano, r. was negligent in

the driving of his vehicle and in failing to give a signal to approachingvehicles of his intention to 'a;e a left turn.

2. &he Court of ppeals erred in not finding that the pro7i'ate cause of theaccident was the victi'8s negligence in the driving of his 'otorc$cle in a ver$fast speed and thus hitting the petitioner8s cargo van.

&he issues raised are thus essentiall$ factual. &he intrinsic 'erit of, as well as cogenc$ in, thedetailed anal$ses 'ade ($ the Court of ppeals in arriving at its findings is at once apparent.#aid the appellate court0

&hat visi(ilit$ was poor when ai'e &ano 'ade a left turn was ad'itted ($the latter.

1hen these two vehicles passed ($ $our par;ed vehicle,as $ou said, there were clouds of dust, did I get $ou rightO

Ees sir, the road was dust$.

#o 'uch so that $ou could no longer see the vehiclesfro' the opposite direction following these vehiclesO

It is not clear, sir, so I even turned on '$ left signal andthe headlight.

1hat do $ou 'ean ($ it was not clear, $ou could not seethe inco'ing vehiclesO

I could not see (ecause of the cloud of dust.

to the left leading to the Bislig airportO

I did not enter i''ediatel$ the airport, I waited the clear a little (efore I drove.

777 777 777

In other words when $ou said that it was slightl$ clewould li;e to tell the "onora(le Court that $ou couclearl$ see (ig vehicles . . . (ut not s'all vehicles'otorc$cleO

I could see clearl$ (ig vehicles (ut not s'all vehicle'otorc$cle.

=i;e the 'otorc$cle of Aogelio )onterolaO

Ees, sir. I could not see clearl$. &ano, tsn, pril +pp. 2%*- p. 3, ppellant8s (rief-.

&ano should not have 'ade a left turn under the conditions ad'itted (Under the =and &ransportation and &raffic Code, the driver of an$ upon a highwa$, (efore starting, stopping or turning fro' a direct

called upon to first see that such 'ove'ent can (e 'ade in safetwhenever the operation of an$ other vehicle approaching 'a$ (e affecsuch 'ove'ent, shall give a signal plainl$ visi(le to the driver of suchvehicles of the intention to 'a;e such 'ove'ent #ec. 44, A.. 4a'ended-. &his 'eans that (efore a driver turns fro' a direct line, case to the left, the driver 'ust first see to it that there are no approvehicles and, if there are, to 'a;e the turn onl$ if it can (e 'ade in safat the ver$ least give a signal that is plainl$ visi(le to the driver of sucvehicle. &ano did neither in this case, for he rec;lessl$ 'ade a left turas visi(ilit$ was still ver$ poor, and thus failed to see the appro'otorc$cle and warn the latter, of his intention to 'a;e a left turn. plain and si'ple negligence.

In thus 'a;ing the left turn, he placed his vehicle directl$ at the path

'otorc$cle which, unaware of &ano8s intention to 'a;e a left turn, s'at &ano8s vehicle. It was &ano8s negligence that created the ris; condition of danger that set into operation the event that led s'ashedup and unti'el$ death of Aogelio )onterola.

Aogelio )onterola8s 'otorc$cle would not have hit the cargo van had &ano,in operating it, not rec;lessl$ turned left when visi(ilit$ was still poor, andinstead o(served the direct line of the =and &ransportation Code that (efore

Considering, however, the contri(utor$ negligence of Aogelio )ontedriving at a fast clip despite the fact that the road was dust$, we reduaggregate a'ount of da'ages to which the plaintiff is entitled ($ twe



instead o(served the direct line of the =and &ransportation Code that (eforedoing so, he should first see to it that such 'ove'ent can (e 'ade in safet$,and that whenever an$ other vehicle approaching 'a$ (e affected ($ such'ove'ent, should give a signal plainl$ visi(le to the driver of such othervehicle of the intention to 'a;e such 'ove'ent.

&hat Aogelio )onterola was running fast despite poor visi(ilit$ as evidenced($ the 'agnitude of the da'age to the vehicles is no defense. "isnegligence would at 'ost (e contri(utor$ rticle 2:9, N.C.C.-. "avingnegligentl$ created the condition of danger, defendants 'a$ not avoid lia(ilit$

($ pointing to the negligence of the for'er.

777 777 777

&ano8s proven negligence created a presu'ption of negligence on the part ofhis e'plo$er, the =BC ir Cargo Corporation, in supervising its e'plo$eesproperl$ and ade>uatel$ Phoeni7 Construction, Inc. vs. Inter'ediate

ppellate Court, supra-, which 'a$ onl$ (e destro$ed ($ proof of duediligence in the selection and supervision of his e'plo$ees to prevent theda'age rticle 2+, N.C.C.-. No such defense was interposed ($defendants in their answer.

1e, however, fail to see Fernando Eu8s lia(ilit$ as )anager of =BC%)angago$ Branch 6ffice, there (eing no e'plo$er%e'plo$ee relationship(etween hi' and ai'e &ano who is a driver of the =BC ir Cargo Inc. It washeld in !hilippine Ra33it ;us ines :nc . et al . vs. !hil . American <orarders,:nc ., * #CA 2*, that the ter' !)anager! in rticle 2+ is used in thesense of !e'plo$er.! "ence, no tortuous or >uasi%delictual lia(ilit$ can (efastened on Fernando Eu as (ranch 'anager of =BC ir Cargo Inc.

Now for the a'ount of da'ages. side fro' the inde'nit$ for death whichhas (een pegged at P3,. Aesolution 8n ;anc , ugust *, 99, citedin People vs. #a?on, +9 #CA :-, the evidence disclose that as a resultof the accident, Aogelio )onterola8s 'otorc$cle was da'aged, the repaircost of which a'ounted to P:,*. /7h. /%-, for hospitali?ation, wa;eand (urial e7penses, plaintiff spent P3,.. &here is li;ewise no >uestionthat ($ reason of Aogelio )onterola8s unti'el$ death, his onl$ child 4 $earsold #herwin )onterola, suffered 'ental anguish, fright, serious an7iet$,

wounded feelings and 'oral shoc; that entitles hi' to 'oral da'ages whichwe here($ fi7 at P2,.. Because of defendants8 refusal to inde'nif$ theplaintiff for his father8s death, the latter was co'pelled to litigate and engagethe services of counsel. "e is therefore entitled to an additional a'ount ofP,. for attorne$8s fees and e7penses of litigation.

aggregate a'ount of da'ages to which the plaintiff is entitled ($ twecent Phoeni7 Construction Inc. vs. Inter'ediate ppellate Court, %upr

Fro' ever$ indication, the pro7i'ate cause of the accident was the negligence of &andespite e7tre'el$ poor visi(ilit$, hastil$ e7ecuted a left turn towards the Bislig airpoentrance- without first waiting for the dust to settle. It was this negligent act of &anohad placed his vehicle =BC van- directl$ on the path of the 'otorc$cle co'ing froopposite direction, that al'ost instantaneousl$ caused the collision to occur. #i'ple prure>uired hi' not to atte'pt to cross the other lane until after it would have (een safand clear of an$ onco'ing vehicle.

Petitioners poorl$ invo;e the doctrine of !last clear chance! also referred to, at ti'!supervening negligence! or as !discovered peril!-. &he doctrine, in essence, is to thethat where (oth parties are negligent, (ut the negligent act of one is apprecia3ly later than that of the other, or when it is i'possi(le to deter'ine whose fault or negligence (e attri(uted to the incident, the one who had the last clear opportunit$ to avoi'pending har' and failed to do so is chargea(le with the conse>uences thereof seevs. #'ith, *: Phil. +9-. #tated differentl$, the rule would also 'ean that an antenegligence of a person does not preclude the recover$ of da'ages for supenegligence of, or (ar a defense against the lia(ilit$ sought ($, another if the latter, wthe last fair chance, could have avoided the i'pending har' ($ the e7ercise of due dilPantranco North /7press, Inc. vs. Baesa, :9 #CA *+45 Dlan People8s =u'("ardware vs. Inter'ediate ppellate Court, :* #CA 44-.

In the case at (ench, the victi' was traveling along the lane where he was rightl$ supto (e. &he incident occurred in an instant. No apprecia(le ti'e had elapsed, fro' the '&ano swerved to his left to the actual i'pact5 that could have afforded the victi' a lasopportunit$ to avoid the collision.

It is true however, that the deceased was not all that free fro' negligence in evspeeding too closel$ (ehind the vehicle he was following. 1e, therefore, agree wappellate court that there indeed was contri(utor$ negligence on the victi'8s part thawarrant a 'itigation of petitioners lia(ilit$ for da'ages.

1"/A/F6A/, the appealed decision is FFIA)/<. Costs against petitioners.

#6 6A</A/<.

<eliciano, Romero, Melo and <rancisco, JJ., concur.

/oo(no(*%

Rollo, p. :.

2 Rollo pp *%*

and effects inside them. +heir oners, amon' them petitioners here, sued respondents Calte6Inc. and Mateo Bo0uiren, the first as alle'ed oner of the station and the second as its a'ent inof operation. Ne'li'ence on the part of both of them as attributed as the cause of the fire.



2 Rollo, pp. *%*.

* Rollo, pp. 3%33.


Manila

EN BANC

G.R. No. L-12986 March 1, 1966

TE SPOUSES ERNAE AFRICA a'/ SOLEDAD C. AFRICA, a'/ %h# EIRS OF

DOMINGA ONG, petitioners-appellants,vs.CALTE: ;PIL.<, INC., MATEO O=UIREN a'/ TE COURT OF APPEALS, respondents-appellees.

$oss, #elp, Carrascoso and Janda for te respondents.

'ernabe Africa, etc. for te petitioners.

MAKALINTAL., J.:

+his case is before us on a petition for revie of the decision of the Court of Appeals, hich affirmedthat of the Court of !irst Instance of Manila dismissin' petitioners? second amended complaint a'ainstrespondents.

+he action is for dama'es under Articles %/& and %/&$ of the old Civil Code. It appears that in theafternoon of March %5, %/45 a fire broe out at the Calte6 service station at the corner of Antipolostreet and Ri;al Avenue, Manila. It started hile 'asoline as bein' hosed from a tan truc into theunder'round stora'e, ri'ht at the openin' of the receivin' tan here the no;;le of the hose asinserted. +he fire spread to and burned several nei'hborin' houses, includin' the personal properties

of operation. Ne'li'ence on the part of both of them as attributed as the cause of the fire.

+he trial court and the Court of Appeals found that petitioners failed to prove ne'li'ence arespondents had e6ercised due care in the premises and ith respect to the supervision oemplo(ees.

+he first 0uestion before *s refers to the admissibilit( of certain reports on the fire preparedManila Police and !ire epartments and b( a certain Captain +inio of the Armed !orcesPhilippines. Portions of the first to reports are as follos9

%. Police epartment report9

Investi'ation disclosed that at about 49&& P.M. March %5, %/45, hile )!lores as transferrin' 'asoline from a tan truc, plate No. +-3/ iunder'round tan of the Calte6 <asoline "tation located at the corner oAvenue and Antipolo "treet, this Cit(, an unnon !ilipino li'hted a ci'arethre the burnin' match stic near the main valve of the said under'round tanto the 'asoline fumes, fire suddenl( bla;ed. uic action of )eandro !l pullin' off the 'asoline hose connectin' the truc ith the under'roun prevented a terrific e6plosion. 1oever, the flames scattered due to the hohich the 'asoline as spoutin'. It burned the truc and the folloin' accand residences.

. +he !ire epartment report9

In connection ith their alle'ation that the premises as =sic> subleased for the installaa coca-cola and ci'arette stand, the complainants furnished this ffice a cop( of a photaen durin' the fire and hich is submitted hereith. it appears in this picture that thin the premises a coca-cola cooler and a rac hich accordin' to information 'atherenei'hborhood contained ci'arettes and matches, installed beteen the 'asoline pumps under'round tans.

+he report of Captain +inio reproduced information 'iven b( a certain Benito Morales re'ardhistor( of the 'asoline station and hat the chief of the fire department had told him on thsub#ect.

+he fore'oin' reports ere ruled out as double hearsa( b( the Court of Appeals and

inadmissible. +his rulin' is no assi'ned as error. It is contended9 first, that said reports ere a b( the trial court ithout ob#ect ion on the part of respondents8 secondl(, that ith respect to thereport =E6hibit H-Africa> hich appears si'ned b( a etective Oapanta alle'edl( for "Capacillo, the latter as presented as itness but respondents aived their ri'ht to cross-e6amalthou'h the( had the opportunit( to do so8 and thirdl(, that in an( event the said reports are admas an e6ception to the hearsa( rule under section $3 of Rule %$, no Rule %$&.

+he first contention is not borne out b( the record. +he transcript of the hearin' of "eptember %2, %/3$=pp. %@2-%2&> shos that the reports in 0uestion, hen offered as evidence, ere ob#ected to b(counsel for each of respondents on the 'round that the( ere hearsa( and that the( ere irrelevant,

+he ne6t 0uestion is hether or not, ithout proof as to the cause and ori'in of the fire, the docres ipsa lo9uitur should appl( so as to presume ne'li'ence on the part of appellees. Both the triand the appellate court refused to appl( the doctrine in the instant case on the 'rounds that as



p ' ( ( ( ,immaterial and impertinent. Indeed, in the court?s resolution onl( E6hibits , J, J-3 and -@ ereadmitted 3itout objection8 the admission of the others, includin' the disputed ones, carried no suche6planation.

n the second point, althou'h etective Capacillo did tae the itness stand, he as not e6amined andhe did not testif( as to the facts mentioned in his alle'ed report =si'ned b( etective Oapanta>. All hesaid as that he as one of those ho investi'ated the location of the fire and, if possible, 'atheritnesses as to the occurrence, and that he brou'ht the report ith him. +here as nothin', therefore,on hich he need be cross-e6amined8 and the contents of the report, as to hich he did not testif(, did

not thereb( become competent evidence. And even if he had testified, his testimon( ould still have been ob#ectionable as far a s information 'athered b( him from third persons as concerned.

Petitioners maintain, hoever, that the reports in themselves, that is, ithout further testimonialevidence on their contents, fall ithin the scope of section $3, Rule %$, hich provides that entries inofficial records made in the performance of his dut( b( a public officer of the Philippines, or b( a person in the performance of a dut( spec iall( en#oined b( l a, are prima facie evidence of the factstherein stated.

+here are three re0uisites for admissibilit( under the rule #ust mentioned9 =a> that the entr( as made b( a public officer, or b( another person speciall( en#oined b( la to do so8 =b> that it as made b( the public officer in the performance of his duties, or b( such other pe rson in the performance of a dut(speciall( en#oined b( la8 and =c> that the public officer or other person had sufficient noled'e ofthe facts b( him stated, hich must have been ac0uired b( him personall( or throu'h official

information =Moran, Comments on the Rules of Court, Hol. $ %/32D p. $/5>.

f the three re0uisites #ust stated, onl( the last need be considered here. bviousl( the material factsrecited in the reports as to the cause and circumstances of the fire ere not ithin the personalnoled'e of the officers ho conducted the investi'ation. 7as noled'e of such facts, hoever,ac0uired b( them throu'h official information: As to some facts the sources thereof are not evenidentified. thers are attributed to )eopoldo Medina, referred to as an emplo(ee at the 'as station erethe fire occurred8 to )eandro !lores, driver of the tan truc from hich 'asoline as bein' transferredat the time to the under'round tan of the station8 and to respondent Mateo Bo0uiren, ho could not,accordin' to E6hibit H-Africa, 'ive an( reason as to the ori'in of the fire. +o 0ualif( their statementsas official information ac0uired b( the officers ho prepared the reports, the persons ho made thestatements not onl( must have personal noled'e of the facts stated but must have the dut( to 'ivesuch statements for record.%

+he reports in 0uestion do not constitute an e6ception to the hearsa( rule8 the facts stated therein erenot ac0uired b( the reportin' officers throu'h official information, not havin' been 'iven b( theinformants pursuant to an( dut( to do so.

pp pp ( 'applicabilit( ... in the Philippines, there seems to he nothin' definite, and that hile the rules prohibit its adoption in appropriate cases, in the case at bar, hoever, e find no practical such doctrine. +he 0uestion deserves more than such summar( dismissal. +he doctrine has a been applied in this #urisdiction, in the case of Espiritu vs. )ilippine )o3er and +evelopm

=CA-<.R. No. $4&-R, "eptember &, %/4/>, herein the decision of the Court of Appeals as b( Mr. ustice .B.). Re(es no a member of the "upreme Court.

+he facts of that case are stated in the decision as follos9

In the afternoon of Ma( 3, %/4@, hile the plaintiff-appellee and other companionloadin' 'rass beteen the municipalities of Ba( and Calauan, in the province of )a'unclear eather and ithout an( ind bloin', an electric transmission ire, installmaintained b( the defendant Philippine Poer and evelopment Co., Inc. alon'side thsuddenl( parted, and one of the broen ends hit the head of the plaintiff as he as a board the truc. As a result, plaintiff received the full shoc of 4,4&& volts carri ed b( tand as noced unconscious to the 'round. +he electric char'e coursed throu'h hand caused e6tensive and serious multiple burns from sull to le's, leavin' the bone ein some parts and causin' intense pain and ounds that ere not completel( healed case as tried on une %5, %/42, over one (ear after the mishap.

+he defendant therein disclaimed liabilit( on the 'round that the plaintiff had failed to shspecific act of ne'li'ence, but the appellate court overruled the defense under the doctrine of r

lo9uitur . +he court said9

+he first point is directed a'ainst the sufficienc( of plaintiff?s evidence to place appeits defense. 7hile it is the rule, as contended b( the appellant, that in case of nonconne'li'ence, or culpa a9uiliana, the burden of proof is on the plaintiff to establish t pro6imate cause of his in#ur( as the ne'li'ence of the defendant, it is also a reco principal that here the thin' hich caused in#ur(, ithout fault of the in#ured peunder the e6clusive control of the defendant and the in#ur( is such as in the ordinar( cothin's does not occur if he havin' such control use proper care, it affords reasonable evin the absence of the e6planation, that the in#ur( arose from defendant?s ant of care.

And the burden of evidence is shifted to him to establish that he has observed due cdili'ence. ="an uan )i'ht F +ransit Co. v. Re0uena, 44, *.". 5/, 3@ ). ed. @5&.> +hinon b( the name of res ipsa lo9uitur =the transaction speas for itself>, and is peapplicable to the case at bar, here it is un0uestioned that the plaintiff had ever( ri'ht tthe hi'ha(, and the electric ire as under the sole control of defendant compan(ordinar( course of events, electric ires do not part suddenl( in fair eather and people, unless the( are sub#ected to unusual strain and stress or there are defects installation, maintenance and supervision8 #ust as barrels do not ordinaril( roll outarehouse indos to in#ure passersb(, unless some one as ne'li'ent. =B(rne v. Bo

1 F Co. 28 %3/ En'. Reprint //, the leadin' case that established that rule>. Conse0uentl(,in the absence of contributor( ne'li'ence =hich is admittedl( not present>, the fact that theire snapped suffices to raise a reasonable presumption of ne'li'ence in its installation, care

evoed the doctrine of res ipsa lo9uitur . +here are man( cases in hich the doctrine successfull( invoed and this, e thin, is one of them.



and maintenance. +hereafter, as observed b( Chief Baron Polloc, if there are an( factsinconsistent ith ne'li'ence, it is for the defendant to prove.

It is true of course that decisions of the Court of Appeals do not la( don doctrines bindin' on the"upreme Court, but e do not consider this a reason for not appl(in' the particular doctrine of res ipsa

lo9uitur in the case at bar. <asoline is a hi'hl( combustible material, in the stora'e and sale of hiche6treme care must be taen. n the other hand, fire is not considered a fortuitous event, as it arisesalmost invariabl( from some act of man. A case striin'l( similar to the one before *s is ones vs."hell Petroleum Corporation, et al., %2% "o. 4429

Arthur . ones is the oner of a buildin' in the cit( of 1ammon hich in the (ear %/$4 asleased to the "hell Petroleum Corporation for a 'asoline fillin' station. n ctober 5, %/$4,durin' the term of the lease, hile 'asoline as bein' transferred from the tan a'on, alsooperated b( the "hell Petroleum Corporation, to the under'round tan of the station, a firestarted ith resultin' dama'es to the buildin' oned b( ones. Alle'in' that the dama'es tohis buildin' amounted to Q3%@./3, ones sued the "hell Petroleum Corporation for therecover( of that amount. +he #ud'e of the district court, after hearin' the testimon(,concluded that plaintiff as entitled to a recover( and rendered #ud'ment in his favor forQ42.5. +he Court of Appeals for the !irst Circuit reversed this #ud'ment, on the 'round thetestimon( failed to sho ith reasonable certaint( an( ne'li'ence on the part of the "hellPetroleum Corporation or an( of its a'ents or emplo(ees. Plaintiff applied to this Court for a7rit of Revie hich as 'ranted, and the case is no before us for decision. 4?3p@4.ñt

In resolvin' the issue of ne'li'ence, the "upreme Court of )ouisiana held9

Plaintiff?s petition contains to distinct char'es of ne'li'ence one relatin' to the cause ofthe fire and the other relatin' to the spreadin' of the 'asoline about the fillin' station.

ther than an e6pert to assess the dama'es caused plaintiff?s buildin' b( the fire, no itnessesere placed on the stand b( the defendant.

+ain' up plaintiff?s char'e of ne'li'ence relatin' to the cause of the fire, e find itestablished b( the record that the fillin' station and the tan truc ere under the control ofthe defendant and operated b( its a'ents or emplo(ees. 7e further find from theuncontradicted testimon( of plaintiff?s itnesses that fire started in the under'round tanattached to the fillin' station hile it as bein' filled from the tan truc and hile both the

tan and the truc ere in char'e of and bein' operated b( the a'ents or emplo(ees of thedefendant, e6tended to the hose and tan truc, and as communicated from the burnin'hose, tan truc, and escapin' 'asoline to the buildin' oned b( the plaintiff.

Predicated on these circumstances and the further circumstance of defendant?s failure toe6plain the cause of the fire or to sho its lac of noled'e of the cause, plaintiff has

7here the thin' hich caused the in#ur( complained of is shon to be under the manaof defendant or his servants and the accident is such as in the ordinar( course of thinnot happen if those ho have its mana'ement or control use proper care, it affords reaevidence, in absence of e6planation b( defendant, that the accident arose from ant =43 C.. 2@5, p. %%/$>.

+his statement of the rule of res ipsa lo9uitur has been idel( approved and adoptedcourts of last resort. "ome of the cases in this #urisdiction in hich the doctrine haapplied are the folloin', vi6 .9 Maus v. Broderic, 3% )a. Ann. %%3$, 3 "o. /228 1

)ae Charles Ice, etc., Co., %%% )a. 3, $3 "o. 2$%, @4 ).R.A. %&%, %&& Am. "t. Re7illis v. Hicsbur', etc., R. Co., %%3 )a. @$, $5 "o. 5/8 Bents v. Pa'e, %%3 )a. 3@&3//.

+he principle enunciated in the afore0uoted case applies ith e0ual force here. +he 'asoline ith all its appliances, e0uipment and emplo(ees, as under the control of appellees. A fire otherein and spread to and burned the nei'hborin' houses. +he persons ho ne or could have ho the fire started ere appellees and their emplo(ees, but the( 'ave no e6planation hatsoever. It is a fair and reasonable inference that the incident happened because of ant of c

In the report submitted b( Captain )eoncio Mariano of the Manila Police epartment =E6Africa> the folloin' appears9

Investi'ation of the basic complaint disclosed that the Calte6 <asoline "tation complaoccupies a lot appro6imatel( %& m 6 %& m at the southest corner of Ri;al AvenAntipolo. +he location is ithin a ver( bus( business district near the brero Marailroad crossin' and ver( thicl( populated nei'hborhood here a 'reat number ofmill around t

until

'asoline

tever be the7act#vities of these peopleor li'htin' a ci'arette cannot be e6cluded aconstitute a secondar( ha;ard to its operation hich in turn endan'ers the entire nei'hbto confla'ration.

!urthermore, aside from precautions alread( taen b( its operator the concrete alland est ad#oinin' the nei'hborhood are onl( -%S meters hi'h at most and cannot avflames from leapin' over it in case of fire.

Records sho that there have been to cases of fire hich caused not onl( material dama'es but desperation and also panic in the nei'hborhood.

independent cause in the resultin' in#ur(. =MacAfee, et al. vs. +raver?s <as Corporation, %3nd 44.>



Althou'h the soft drins stand had been eliminated, this 'asoline service station is also used b( it s operator as a 'ara'e and repa ir shop for his fleet of ta6icabs numberin' ten or more,addin' another ris to the possible outbrea of fire at this alread( small but croded 'asolinestation.

+he fore'oin' report, havin' been submitted b( a police officer in the performance of his duties on the basis of his on personal observation of the fact s reported, ma( properl( be considered as an e6ceptionto the hearsa( rule. +hese facts, descriptive of the location and ob#ective circumstances surroundin' theoperation of the 'asoline station in 0uestion, stren'then the presumption of ne'li'ence under the

doctrine of res ipsa lo0uitur, since on their face the( called for more strin'ent measures of caution thanthose hich ould satisf( the standard of due dili'ence under ordinar( circumstances. +here is nomore elo0uent demonstration of this than the statement of )eandro !lores before the policeinvesti'ator. !lores as the driver of the 'asoline tan a'on ho, alone and ithout assistance, astransferrin' the contents thereof into the under'round stora'e hen the fire broe out. 1e said9 Beforeloadin' the under'round tan there ere no people, but hile the loadin' as 'oin' on, there ere people ho ent to drin coca-cola =at the coca-cola stand> hich is about a meter from the holeleadin' to the under'round tan. 1e added that hen the tan as almost filled he ent to the tantruc to close the valve, and hile he had his bac turned to the manhole he, heard someone shoutfire.

Even then the fire possibl( ould not have spread to the nei'hborin' houses ere it not for anotherne'li'ent omission on the part of defendants, namel(, their failure to provide a concrete all hi'henou'h to prevent the flames from leapin' over it. As it as the concrete all as onl( -%S meters

hi'h, and be(ond that hei'ht it consisted merel( of 'alvani;ed iron sheets, hich ould predictabl(crumple and melt hen sub#ected to intense heat. efendants? ne'li'ence, therefore, as not onl( ithrespect to the cause of the fire but also ith respect to the spread thereof to the nei'hborin' houses.

+here is an admission on the part of Bo0uiren in his amended anser to the second amended complaintthat the fire as caused throu'h the acts of a stran'er ho, ithout authorit(, or permission ofanserin' defendant, passed throu'h the 'asoline station and ne'li'entl( thre a li'hted match in the premises. No evidence on this point as adduced, but assumin' the alle'ation to be t rue cert ainl(an( unfavorable inference from the admission ma( be taen a'ainst Bo0uiren it does not e6tenuatehis ne'li'ence. A decision of the "upreme Court of +e6as, upon facts analo'ous to those of the presentcase, states the rule hich e find acceptable here. It is the rule that those ho distribute a dan'erousarticle or a'ent, oe a de'ree of protection to the public proportionate to and commensurate ith adan'er involved ... e thin it is the 'enerall( accepted rule as applied to torts that ?if the effects of theactor?s ne'li'ent conduct activel( and continuousl( operate to brin' about harm to another, the fact that

the active and substantiall( simultaneous operation of the effects of a third person?s innocent, tortiousor criminal act is also a substantial factor in brin'in' about the harm, does not protect the actor fromliabilit(.? =Restatement of the )a of +orts, vol. , p. %%54, 4$/>. "tated in another a(, +heintention of an unforeseen and une6pected cause, is not sufficient to relieve a ron'doer fromconse0uences of ne'li'ence, if such ne'li'ence directl( and pro6imatel( cooperates ith the

+he ne6t issue is hether Calte6 should be held liable for the dama'es caused to appellants. +hdepends on hether Bo0uiren as an independent contractor, as held b( the Court of Appeala'ent of Calte6. +his 0uestion, in the li'ht of the facts not controverted, is one of la and hen be passed upon b( this Court . +hese facts are9 =%> Bo0uiren made an admission that he as an aCalte68 => at the time of the fire Calte6 oned the 'asoline station and all the e0uipment therCalte6 e6ercised control over Bo0uiren in the mana'ement of the state8 =4> the deliver( truc deliverin' 'asoline to the station had the name of CA)+E painted on it8 and =3> the license 'asoline at the station as in the name of Calte6, hich paid the license fees. =E6hibit +-E6hibit *-Africa8 E6hibit -3 Africa8 E6hibit -@ Africa8 E6hibit G-Africa>.

In Bo0uiren?s amended anser to the second amended complaint, he denied that he directed ondrivers to remove 'asoline from the truc into the tan and alle'ed that the alle'ed driver, if onas, as not in his emplo(, the driver bein' an emplo(ee of the Calte6 =Phil.> Inc. andSor the of the 'asoline station. It is true that Bo0uiren later on amended his anser, and that amochan'es as one to the effect that he as not actin' as a'ent of Calte6. But then a'ain, in his mdismiss appellants? second amended complaint the 'round alle'ed as that it stated no cause osince under the alle'ations thereof he as merel( actin' as a'ent of Calte6, such that he could nincurred personal liabilit(. A motion to dismiss on this 'round is deemed to be an admissionfacts alle'ed in the complaint.

Calte6 admits that it oned the 'asoline station as ell as the e0uipment therein, but claims business conducted at the service station in 0uestion as oned and operated b( Bo0uiren. Butdid not present an( contract ith Bo0uiren that ould reveal the nature of their relationship at t

of the fire. +here must have been one in e6istence at that time. Instead, hat as presentedlicense a'reement manifestl( tailored for purposes of this case, since it as entered into shortl(the e6piration of the one-(ear period it as intended to operate. +his so-called license a'r=E6hibit 3-Calte6> as e6ecuted on November /, %/45, but made effective as of anuar( %, %/4to cover the date of the fire, namel(, March %5, %/45. +his retroactivit( provision is 0uite si'nand 'ives rise to the conclusion that it as desi'ned precisel( to free Calte6 from an( responith respect to the fire, as shon b( the clause that Calte6 shall not be liable for an( in#ur( toor propert( hile in the propert( herein licensed, it bein' understood and a'reed that )IC=Bo0uiren> is not an emplo(ee, representative or a'ent of )ICEN"R =Calte6>.

But even if the license a'reement ere to 'overn, Bo0uiren can hardl( be considered an indepcontractor. *nder that a'reement Bo0uiren ould pa( Calte6 the purel( nominal sum of P%.&&use of the premises and all the e0uipment therein. 1e could sell onl( Calte6 Products. Maintenthe station and its e0uipment as sub#ect to the approval, in other ords control, of Calte6. B

could not assi'n or transfer his ri'hts as licensee ithout the consent of Calte6. +he license a'ras supposed to be from anuar( %, %/45 to ecember $%, %/45, and thereafter until terminCalte6 upon to da(s prior ritten notice. Calte6 could at an( time cancel and terminate the a'rin case Bo0uiren ceased to sell Calte6 products, or did not conduct the business ith due dili'the #ud'ment of Calte6. +ermination of the contract as therefore a ri'ht 'ranted onl( to Calte6

to Bo0uiren. +hese provisions of the contract sho the e6tent of the control of Calte6 over Bo0uiren.+he control as such that the latter as virtuall( an emplo(ee of the former.

testimon( of one of the n' children that said propert( as orth P4,&&&.&&. 7e a'ree that therred, since it is of common noled'e that the assessment for ta6ation purposes is not an a'au'e of fair maret value, and in this case should not prevail over positive evidence of such+h h i f th f titl d t P%& &&& &&



+ain' into consideration the fact that the operator oed his position to the compan( and thelatter could remove him or terminate his services at ill8 that the service station belon'ed tothe compan( and bore its tradename and the operator sold onl( the products of the compan(8that the e0uipment used b( the operator belon'ed to the compan( and ere #ust loaned to theoperator and the compan( too char'e of their repair and maintenance8 that an emplo(ee ofthe compan( supervised the operator and conducted periodic inspection of the compan(?s'asoline and service station8 that the price of the products sold b( the operator as fi6ed b(the compan( and not b( the operator8 and that the receipts si'ned b( the operator indicatedthat he as a mere a'ent, the findin' of the Court of Appeals that the operator as an a'ent of

the compan( and not an independent contractor should not be disturbed.

+o determine the nature of a contract courts do not have or are not bound to rel( upon thename or title 'iven it b( the contractin' parties, should thereb( a controvers( as to hat the(reall( had intended to enter into, but the a( the contractin' parties do or perform theirrespective obli'ations stipulated or a'reed upon ma( be shon and in0uired into, and shouldsuch performance conflict ith the name or title 'iven the contract b( the parties, the formermust prevail over the latter. ="hell Compan( of the Philippines, )td. vs. !iremens? InsuranceCompan( of Near, Ne erse(, %&& Phil. 232>.

+he ritten contract as apparentl( dran for the purpose of creatin' the apparentrelationship of emplo(er and independent contractor, and of avoidin' liabilit( for thene'li'ence of the emplo(ees about the station8 but the compan( as not satisfied to allosuch relationship to e6ist. +he evidence shos that it immediatel( assumed control, and

proceeded to d irect the method b( hich the or contracted for should be performed. B(reservin' the ri'ht to terminate the contract at ill, it retained the means of compellin'submission to its orders. 1avin' elected to assume control and to direct the means andmethods b( hich the or has to be performed, it must be held liable for the ne'li'ence ofthose performin' service under its direction. 7e thin the evidence as sufficient to sustainthe verdict of the #ur(. =<ulf Refinin' Compan( v. Ro'ers, 32 ".7. d, %5$>.

Calte6 further ar'ues that the 'asoline stored in the station belon'ed to Bo0uiren. But no cash invoicesere presented to sho that Bo0uiren had bou'ht said 'asoline from Calte6. Neither as there a salescontract to prove the same.

As found b( the trial court the Africas sustained a loss of P/,&&3.5&, after deductin' the amount ofP,&&&.&& collected b( them on the insurance of the house. +he deduction is no challen'ed aserroneous on the 'round that Article &2 of the Ne Civil Code, hich provides for the subro'ation

of the insurer to the ri'hts of the insured, as not (et in effect hen the loss too place. 1oever,re'ardless of the silence of the la on this point at that time, the amount that should be recovered bemeasured b( the dama'es actuall( suffered, otherise the principle prohibitin' un#ust enrichmentould be violated. 7ith respect to the claim of the heirs of n' P2,3&&.&& as ad#ud'ed b( the loercourt on the basis of the assessed value of the propert( destro(ed, namel(, P%,3&&.&&, disre'ardin' the

+he heirs of n' are therefore entitled to P%&,&&&.&&.

7herefore, the decision appealed from is reversed and respondents-appellees are held liable soto appellants, and ordered to pa( them the aforesaid sum of P/,&&3.5& and P%&,&&&.&&, respeith interest from the filin' of the complaint, and costs.

'eng6on, C.J., 'autista Angelo, Concepcion, $e-es, J.'.%., 'arrera, $egala, 'eng6on, J.)., 7

and #ance6, JJ.,

+i6on, J., too( no part.

Foo%'o%#(

%+hus, for instance, the record of a #ustice of the peace of marria'e certificates transmhim b( the correspondin' priest is admissible. +he #ustice of the peace has no pnoled'e of the marria'e, but it as reported to him b( a priest hose dut( it as, unla, to mae the report for record purposes. "imilarl(, the ta6 records of a provincial aare admissible even if the assessments ere made b( subordinates. "o also are enmarria'es made b( a municipal treasurer in his official record, because he ac0uires nothereof b( virtue of a statutor( dut( on the part of those authori;ed to solemni;e marrisend a cop( of each marria'e contract solemni;ed b( them to the local civil re'istraMoran, Comments on the Rules of Court, Hol. $ %/32D pp. $5/-$/3.>

&he furniture 'anufacturing shop of petitioner in Caloocan Cit$ was situated adacentresidence of private respondents. #o'eti'e in ugust 9:, private respondent D)a(le first approached /ric Cru?, petitioner8s plant 'anager, to re>uest that a firewconstructed (etween the shop and private respondents8 residence &he re>uest was re




Manila

+1IR IHI"IN

G.R. No. L-573 Auu%( 9, 19

/./. CRU an+ CO., NC., petitioner,vs.T!E COURT O/ A))EAL, GREGORO MA"LE a% %u%(#(u(*+ y $#% <#* LUALMONTE MA"LE an+ &$#=+r*n DOMNG, LEONDA, LGAA, ELENA, GREGORO,JR., ALOME, ANTONO, an+ "ERNARDO a== %urna2*+ MA"LE, respondents.

uis %. Topacio for petitioner.

Mauricio M. Monta for respondents.

CORTE, J.:

&his petition to review the decision of the Court of ppeals puts in issue the application of theco''on law doctrine of res ipsa lo*uitur .

&he essential facts of the case are not disputed.

constructed (etween the shop and private respondents residence. &he re>uest was reseveral ti'es (ut the$ fell on deaf ears. In the earl$ 'orning of #epte'(er , 9:4, fireout in petitioner8s shop. Petitioner8s e'plo$ees, who slept in the shop pre'ises, triedout the fire, (ut their efforts proved futile. &he fire spread to private respondents8 housethe shop and the house were ra?ed to the ground. &he cause of the conflagration wasdiscovered. &he National Bureau of Investigation found speci'ens fro' the (urned strunegative for the presence of infla''a(le su(stances.

#u(se>uentl$, private respondents collected P*3,. on the insurance on their hou

the contents thereof.

6n anuar$ 2*, 9:3, private respondents filed an action for da'ages against petpra$ing for a udg'ent in their favor awarding P3,. as actual da'ages, P3,as 'oral da'ages, P23,. as e7e'plar$ da'ages, P2,. as attorne$8s feecosts. &he Court of First Instance held for private respondents0

1"/A/F6A/, the Court here($ renders udg'ent, in favor of plaintifagainst the defendant0

. 6rdering the defendant to pa$ to the plaintiffs the a'ount of P+,for da'ages suffered ($ said plaintiffs for the loss of their houseinterest of fro' the date of the filing of the Co'plaint on anua9:3, until full$ paid5

2. 6rdering the defendant to pa$ to the plaintiffs the su' of P3,the loss of plaintiffs8 furnitures, religious i'ages, silverwares, china

ewelries, (oo;s, ;itchen utensils, clothing and other valua(les, with iof fro' date of the filing of the Co'plaint on anuar$ 2*, 9:3, unpaid5

*. 6rdering the defendant to pa$ to the plaintiffs the su' of P3,'oral da'ages, P2,. as e7e'plar$ da'ages, and P3,. ($ wa$ of attorne$8s fees5

4. 1ith costs against the defendant5

3. Counterclai' is ordered dis'issed, for lac; of 'erit. KC <ecision, pAollo, pp. 29%*.L

6n appeal, the Court of ppeals, in a decision pro'ulgated on Nove'(er 9, 9:9, athe decision of the trial court (ut reduced the award of da'ages0

1"/A/F6A/, the decision declaring the defendants lia(le is affir'ed. &heda'ages to (e awarded to plaintiff should (e reduced to P:,. for thehouse and P3,. for the furniture and other fi7tures with legal interestfro' the date of the filing of the co'plaint until full pa$'ent thereof KC

&he facts of the case li;ewise call for the application of the doctrine, considering thatnor'al course of operations of a furniture 'anufacturing shop, co'(usti(le 'aterial swood chips, sawdust, paint, varnish and fuel and lu(ricants for 'achiner$ 'a$ (ethereon



fro' the date of the filing of the co'plaint until full pa$'ent thereof. KC<ecision, p. :5 Aollo, p. *3.L

'otion for reconsideration was filed on <ece'(er *, 9:9 (ut was denied in a resolutiondated Fe(ruar$ +, 9+. "ence, petitioner filed the instant petition for review on Fe(ruar$22, 9+. fter the co''ent and repl$ were filed, the Court resolved to den$ the petition forlac; of 'erit on une , 9+.

"owever, petitioner filed a 'otion for reconsideration, which was granted, and the petition

was given due course on #epte'(er 2, 9+. fter the parties filed their 'e'oranda, thecase was su('itted for decision on anuar$ 2, 9+.

Petitioner contends that the Court of ppeals erred0

. In not deducting the su' of P*3,., which private respondents recovered on theinsurance on their house, fro' the award of da'ages.

2. In awarding e7cessive andHor unproved da'ages.

*. In appl$ing the doctrine of res ipsa lo*uitur to the facts of the instant case.

&he pivotal issue in this case is the applica(ilit$ of the co''on law doctrine of res ipsa

lo*uitur, the issue of da'ages (eing 'erel$ conse>uential. In view thereof, the errorsassigned ($ petitioner shall (e discussed in the reverse order.

. &he doctrine of res ipsa lo*uitur , whose application to the instant case petitioner o(ects to,'a$ (e stated as follows0

1here the thing which caused the inur$ co'plained of is shown to (e underthe 'anage'ent of the defendant or his servants and the accident is such asin the ordinar$ course of things does not happen if those who have its'anage'ent or control use proper care, it affords reasona(le evidence, inthe a(sence of e7planation ($ the defendant, that the accident arose fro'want of care. Kfrica v. Calte7 Phil.-, Inc., D.A. No. =%29+, )arch *,9, #CA 44+.L

&hus, in Africa, supra, where fire (ro;e out in a Calte7 service station while gasoline fro' atan; truc; was (eing unloaded into an underground storage tan; through a hose and the firespread to and (urned neigh(oring houses, this Court, appl$ing the doctrine of res ipsalo*uitur , adudged Calte7 lia(le for the loss.

thereon.

It 'ust also (e noted that negligence or want of care on the part of petitioner or its e'pwas not 'erel$ presu'ed. &he Court of ppeals found that petitioner failed to consfirewall (etween its shop and the residence of private respondents as re>uired ($ordinance5 that the fire could have (een caused ($ a heated 'otor or a lit cigarettgasoline and alcohol were used and stored in the shop5 and that wor;ers so'eti'es sinside the shop KC <ecision, p. 35 Aollo, p. **.L

/ven without appl$ing the doctrine of res ipsa lo*uitur , petitioner8s failure to consfirewall in accordance with cit$ ordinances would suffice to support a finding of negligen

/ven then the fire possi(l$ would not have spread to the neigh(oring were it not for another negligent o'ission on the part of defendants, ntheir failure to provide a concrete wall high enough to prevent the fro' leaping over it. s it was the concrete wall was onl$ 2%H2 'eterand (e$ond that height it consisted 'erel$ of galvani?ed iron sheets,would predicta(l$ cru'(le and 'elt when su(ected to intense?efendantIs ne&li&ence, therefore, as not only ith respect to the cathe fire 3ut also ith respect to the spread thereof to the nei&h3orin& hKfrica v. Calte7 Phil.-, Inc., supra5 /'phasis supplied.L

In the instant case, with 'ore reason should petitioner (e found guilt$ of negligence s

had failed to construct a firewall (etween its propert$ and private respondents8 reswhich sufficientl$ co'plies with the pertinent cit$ ordinances. &he failure to co'pl$ wordinance providing for safet$ regulations had (een ruled ($ the Court as an negligence K&eague v. Fernande?, D.A. No. =%29:43, une 4, 9:*, 3 #CA +.L

&he Court of ppeals, therefore, had 'ore than ade>uate (asis to find petitioner lia(leloss sustained ($ private respondents.

2. #ince the a'ount of the loss sustained ($ private respondents constitutes a finding such finding ($ the Court of ppeals should not (e distur(ed ($ this Court K).<. &ra&a7i Co., Inc. v. Court of ppeals, D.A. No. =%2*++2, Fe(ruar$ :, 9+, 22 #CA'ore so when there is no showing of ar(itrariness.

In the instant case, (oth the CFI and the Court of ppeals were in agree'ent as to theof private respondents8 furniture and fi7tures and personal effects lost in the fiP3,.-. 1ith regard to the house, the Court of ppeals reduced the awP:,. fro' P+,.. #uch cannot (e categori?ed as ar(itrar$ considering thevidence shows that the house was (uilt in 93 for P4,. and, according to respondents, its reconstruction would cost P24,.. Considering the apprecia

value of real estate and the di'inution of the real value of the peso, the valuation of thehouse at P:,. at the ti'e it was ra?ed cannot (e said to (e e7cessive.

* 1hile this Court finds that petitioner is lia(le for da'ages to private respondents as found

#6 6A</A/<.

<ernan, C.J., utierre, Jr., <eliciano and ;idin, JJ., concur.



*. 1hile this Court finds that petitioner is lia(le for da'ages to private respondents as found($ the Court of ppeals, the fact that private respondents have (een inde'nified ($ theirinsurer in the a'ount of P*3,. for the da'age caused to their house and its contentshas not escaped the attention of the Court. "ence, the Court holds that in accordance with

rticle 22: of the Civil Code the a'ount of P*3,. should (e deducted fro' the a'ountawarded as da'ages. #aid article provides0

rt. 22:. If the plaintiffs propert$ has (een insured, and he has receivedinde'nit$ fro' the insurance co'pan$ for the inur$ or loss arising out of the

wrong or (reach of contract co'plained of, the insurance co'pan$ issu(rogated to the rights of the insured against the wrongdoer or the personwho violated the contract. :f the amount paid 3y the insurance company doesnot fully cover the inury or loss, the a&&rieved party shall 3e entitled torecover the deficiency from the person causin& the loss or inury . /'phasissupplied.L

&he law is clear and needs no interpretation. "aving (een inde'nified ($ their insurer, privaterespondents are onl$ entitled to recover the deficienc$ fro' petitioner.

6n the other hand, the insurer, if it is so 'inded, 'a$ see; rei'(urse'ent of the a'ount itinde'nified private respondents fro' petitioner. &his is the essence of its right to (esu(rogated to the rights of the insured, as e7pressl$ provided in rticle 22:. Upon pa$'entof the loss incurred ($ the insured, the insurer is entitled to (e su(rogated pro tanto to an$

right of action which the insured 'a$ have against the third person whose negligence orwrongful act caused the loss KFire'an8s Fund Insurance Co. v. a'ila G Co., Inc., D.A. No. =%2:42:, pril :, 9:, : #CA *2*.L

Under rticle 22:, the real part$ in interest with regard to the inde'nit$ received ($ theinsured is the insurer KPhil. ir =ines, Inc. v. "eald =u'(er Co., Phil. *, 93:-.L1hether or not the insurer should e7ercise the rights of the insured to which it had (eensu(rogated lies solel$ within the for'er8s sound discretion. #ince the insurer is not a part$ tothe case, its identit$ is not of record and no clai' is 'ade on its (ehalf, the privaterespondent8s insurer has to clai' his right to rei'(urse'ent of the P*3,. paid to theinsured.

1"/A/F6A/, in view of the foregoing, the decision of the Court of ppeals is here($ FFIA)/< with the following 'odifications as to the da'ages awarded for the loss of private

respondents8 house, considering their receipt of P*3,. fro' their insurer0 - theda'ages awarded for the loss of the house is reduced to P*3,.5 and 2- the right of theinsurer to su(rogation and thus see; rei'(urse'ent fro' petitioner for the P*3,. it hadpaid private respondents is recogni?ed.

Needless to sa$ then, when a ph$sician stra$s fro' his sacred dut$ and endangers ithe life of his patient, he 'ust (e 'ade to answer therefor. lthough societ$ toda$ cannwill not tolerate the punish'ent 'eted out ($ the ancients, neither will it and this Cothis case would show, let the act go unconde'ned.




Manila

+1IR IHI"IN

G.R. No. 1131 Ju=y 5, 1996

DR. CTORA L. "AT>UN an+ ALLAN "AT>UN, petitioners,vs.COURT O/ A))EAL, )OUE >UEDO D. ACOGDO an+ /LOTLDE G. LLEGA,

respondents.

DADE, JR., J.: p

&hroughout histor$, patients have consigned their fates and lives to the s;ill of their doctors.For a (reach of this trust, 'en have (een >uic; to de'and retri(ution. #o'e 4, $earsago, the Code of "a''ura(i 1 then alread$ provided0 !If a ph$sician 'a;e a deep incisionupon a 'an with his (ron?e lancet and cause the 'an8s death, or operate on the e$e soc;etof a 'an with his (ron?e lancet and destro$ the 'an8s e$es, the$ shall cut off his hand.!

#u(se>uentl$, "ippocrates 3 wrote what was to (eco'e part of the healer8s oath0 !I will followthat 'ethod of treat'ent which according to '$ a(ilit$ and udg'ent, I consider for the(enefit of '$ patients, and a(stain fro' whatever is deleterious and 'ischievous. . . . 1hile I

continue to ;eep this oath unviolated 'a$ it (e granted 'e to eno$ life and practice the art,respected ($ all 'en at all ti'es (ut should I trespass and violate this oath, 'a$ the reverse(e '$ lot.! t present, the pri'ar$ o(ective of the 'edical profession if the preservation oflife and 'aintenance of the health of the people. 4

, g

&he petitioners appeal fro' the decision 5 of the Court of ppeals of )a$ 994 in CC@ No. *+3, which reversed the decision 6 of 2 <ece'(er 99 of Branch *Aegional &rial Court A&C- of Negros 6riental in Civil Case No. 9492.

&he facts, as found ($ the trial court, are as follows0

<r. Bati>uin was a Aesident Ph$sician at the Negros 6riental Pro

"ospital, <u'aguete Cit$ fro' anuar$ 9, 9:+ to #epte'(erBetween 9+: and #epte'(er, 9+9 she was also the ctg. "ead<epart'ent of 6(stetrics and D$necolog$ at the said "ospital.

)rs. @illegas is a 'arried wo'an who su('itted to <r. Bati>uin for pcare as the latter8s private patient so'eti'e (efore #epte'(er 2, 9+

In the 'orning of #epte'(er 2, 9++ <r. Bati>uin, with the assistance<oris &eresita #$ who was also a Aesident Ph$sician at the sa'e "C.I. and 6.A. Nurse rlene <iones and so'e student nurses perforsi'ple caesarean section on )rs. @illegas at the Negros 6riental Pro"ospital and after 43 'inutes )rs. @illegas delivered her first child,

cogido, at a(out 043 that 'orning. &hereafter, Plaintiff re'ained coat the "ospital until #epte'(er 2:, 9++ during which period of confin

she was regularl$ visited ($ <r. Bati>uin. 6n #epte'(er 2+, 9+@illegas chec;ed out of the "ospital. . . and on that sa'e da$ she paBati>uin, thru the latter8s secretar$, the a'ount of P,3. as !profefee!. . . .

#oon after leaving the "ospital )rs. @illegas (egan to suffer a(do'inaand co'plained of (eing feverish. #he also graduall$ lost her appetshe consulted <r. Bati>uin at the latter8s pol$clinic who prescri(ed certain 'edicines. . . which she had (een ta;ing up to <ece'(er, 9++

In the 'eanti'e, )rs. @illegas was given a )edical Certificate Bati>uin on 6cto(er *, 9++. . . certif$ing to her ph$sical fitness to reher wor; on Nove'(er :, 9++. #o, on the second wee; of Nove'(e)rs. @illegas returned to her wor; at the Aural Ban; of $ungon, N6riental.

&he a(do'inal pains and fever ;ept on recurring and (othered )rs. @no end despite the 'edications ad'inistered ($ <r. Bati>uin. 1hen the(eca'e un(eara(le and she was rapidl$ losing weight she consulted <

#alud Jho at the "ol$ Child8s "ospital in <u'aguete Cit$ on anuar$ 2,9+9.

&he evidence of Plaintiffs show that when <r. )a. #alud Jho e7a'ined )rs.

&he trial court dee'ed vital <r. @ictoria Bati>uin8s testi'on$ that when she confrontJho regarding the piece of ru((er, !<r. Jho answered that there was ru((er indeed (she threw it awa$.! 1 &his state'ent, the trial court noted, was never denied nor dispu<r. Jho, leading it to conclude0



&he evidence of Plaintiffs show that when <r. )a. #alud Jho e7a'ined )rs.@illegas at the "ol$ Child8s "ospital on anuar$ 2, 9+9 she found )rs.@illegas to (e feverish, pale and was (reathing fast. Upon e7a'ination shefelt an a(do'inal 'ass one finger (elow the u'(ilicus which she suspectedto (e either a tu'or of the uterus or an ovarian c$st, either of which could (ecancerous. #he had an 7%ra$ ta;en of )rs. @illegas8 chest, a(do'en and;idne$. #he also too; (lood tests of Plaintiff. (lood count showed that )rs.@illegas had KanL infection inside her a(do'inal cavit$. &he results of allthose e7a'inations i'pelled <r. Jho to suggest that )rs. @illegas su('it to

another surger$ to which the latter agreed.

1hen <r. Jho opened the a(do'en of )rs. @illegas she found whitish%$ellow discharge inside, an ovarian c$st on each of the left and right ovarieswhich gave out pus, dirt and pus (ehind the uterus, and a piece of ru((er'aterial on the right side of the uterus e'(edded on Ksic L the ovarian c$st, 2inches ($ *H4 inch in si?e. &his piece of ru((er 'aterial which <r. Jhodescri(ed as a !foreign (od$! loo;ed li;e a piece of a !ru((er glove!. . . andwhich is Ksic L also !ru((er%drain li;e!. . . . It could have (een a torn section ofa surgeon8s gloves or could have co'e fro' other sources. nd this foreign(od$ was the cause of the infection of the ovaries and conse>uentl$ of all thedisco'fort suffered ($ )rs. @illegas after her deliver$ on #epte'(er 2,9++. 7

&he piece of ru((er allegedl$ found near private respondent Flotilde @illegas8s uterus was notpresented in court, and although <r. )a. #alud Jho &estified that she sent it to a pathologistin Ce(u Cit$ for e7a'ination, it was not 'entioned in the pathologist8s #urgical Patholog$Aeport. 9

side fro' <r. Jho8s testi'on$, the evidence which 'entioned the piece of ru((er are a)edical Certificate, 10 a Progress Aecord, 11 an nesthesia Aecord, 1 a Nurse8s Aecord, 13 anda Ph$sician8s <ischarge #u''ar$. 14 &he trial court, however, regarded these docu'entar$evidence as 'ere hearsa$, !there (eing no showing that the person or persons who preparedthe' are deceased or una(le to testif$ on the facts therein stated. . . . /7cept for the )edicalCertificate /7hi(it !F!-, all the a(ove docu'ents were allegedl$ prepared ($ persons otherthan <r. Jho, and she 'erel$ affi7ed her signature on so'e of the' to e7press heragree'ent thereto. . . .! 15 &he trial court also refused to give weight to <r. Jho8s testi'on$regarding the su(ect piece of ru((er as <r. Jho !'a$ not have had first%hand ;nowledge!

thereof, 16

as could (e gleaned fro' her state'ent, thus0

. . . I have heard so'e(od$ that Ksic L sa$s Ksic L there isKsic L a foreign (od$ that goes with the tissues (ut unluc;il$ Idon8t ;now where the ru((er was. 17

&here are now two different versions on the wherea(outs of that off!ru((er! - that it was sent to the Pathologist in Ce(u as testifieCourt ($ <r. Jho and 2- that <r. Jho threw it awa$ as told ($ <efendant. &he failure of the Plaintiffs to reconcile these two dversions serve onl$ to wea;en their clai' against <efendant Bati>uin.

ll told, the trial court held in favor of the petitioners herein.

&he Court of ppeals reviewed the entiret$ of <r. Jho8s testi'on$ and, even wad'itting the private respondents8 docu'entar$ evidence, dee'ed <r. Jho8s ptesti'on$ to definitel$ esta(lish that a piece of ru((er was found near private resp@illegas8s uterus. &hus, the Court of ppeals reversed the decision of the trial court, ho

4. &he fault or negligence of appellee <r. Bati>uin is esta(lishpreponderance of evidence. &he trial court itself had narrated what hapto appellant Flotilde after the caesarean operation 'ade ($ appellee d. . fter the second operation, appellant Flotilde (eca'e well and h

ppellant Flotilde8s trou(les were caused ($ the infection due to the !that was left inside her a(do'en. Both appellant5 testified that afoperation 'ade ($ appellee doctor, the$ did not go to an$ other doctothe$ finall$ decided to see another doctor in anuar$, 9+9 when she w

getting an$ (etter under the care of appellee <r. Bati>uin. . . . ppelBati>uin ad'itted on the witness stand that she alone decided when tothe operating area5 that she e7a'ined the portion she operated on closing the sa'e. . . "ad she e7ercised due diligence, appellee <r. Bwould have found the ru((er and re'oved it (efore closing the opearea. 0

&he appellate court then ruled0

ppellants8 evidence showKsL that the$ paid a total of P:,. KdepP:,. /7h. D%%- plus hospital and 'edical e7penses togethdoctor8s fees in the total a'ount P9,9. /7hs. D and D%2-L fsecond operation that saved her life.

For the 'iseries appellants endured for 'ore than three *- 'onths, the negligence of appellee <r. Bati>uin the$ are entitled to 'oral da'athe a'ount of P,.5 e7e'plar$ da'ages in the a'oP2,. and attorne$8s fees in the a'ount of P23,..

&he fact that appellant Flotilde can no longer (ear children (ecause heruterus and ovaries were re'oved ($ <r. Jho is not ta;en into considerationas it is not shown that the re'oval of said organs were the direct result of theru((er left ($ appellee <r. Bati>uin near the uterus. 1hat is esta(lished is

conte7t ($ the trial court. ccording to the Court of ppeals, the trial court have li;ewise considered the other portions of <r. Jho8s testi'on$, especiafollowing0



that the ru((er left ($ appellee caused infection, placed the life of appellantFlotilde in eopard$ and caused appellant fear, worr$ and an7iet$. . . .

1"/A/F6A/, the appealed udg'ent, dis'issing the co'plaint forda'ages is A/@/A#/< and #/& #I</. nother udg'ent is here($entered ordering defendants%appellees to pa$ plaintiffs%appellants thea'ounts of P:,. as and for actual da'ages5 P,. as and for'oral da'ages5 P2,. as and for e7e'plar$ da'ages5 and P23,.

as and for attorne$8s fees plus the costs of litigation.

#6 6A</A/<. 1

Fro' the a(ove udg'ent, the petitioners appealed to this Court clai'ing that the appellatecourt0 - co''itted grave a(use of discretion ($ resorting to findings of fact not supported ($the evidence on record, and 2- e7ceeded its discretion, a'ounting to lac; or e7cess of

urisdiction, when it gave credence to testi'onies punctured with contradictions and falsities.

&he private respondents co''ented that the petition raised onl$ >uestions of fact, whichwere not proper for review ($ this Court.

1hile the rule is that onl$ >uestions of law 'a$ (e raised in a petition for review on certiorari ,there are e7ceptions, a'ong which are when the factual findings of the trial court and the

appellate court conflict, when the appealed decision is clearl$ contradicted ($ the evidenceon record, or when the appellate court 'isapprehended the facts.

fter deciphering the cr$ptic petition, we find that the focal point of the instant appeal is theappreciation of <r. Jho8s testi'on$. &he petitioners contend that the Court of ppeals'isappreciated the following portion of <r. Jho8s testi'on$0

1hat is the purpose of the e7a'inationO

ust in case, I was ust thin;ing at the (ac; of '$ 'ind, ust in case this would turn out to (e a 'edico%legal case, :have heard some3ody that Ksic L says Ksic L there is Ksic L aforei&n 3ody that &oes ith the tissues 3ut unluckily : donIt

kno here the ru33er as. It was not in the =a(, it was notin Ce(u. 3 e'phasis supplied-

&he petitioners prefer the trial court8s interpretation of the a(ove testi'on$, i .e., that<r. Jho8s ;nowledge of the piece of ru((er was (ased on hearsa$. &he Court of

ppeals, on the other hand, concluded that the underscored phrase was ta;en out of

#o $ou did actuall$ conduct the operation on herO

Ees, I did.

nd what was the resultO

6pening up her a(do'en, there was whitishdischarge inside the a(do'en, there was an ovarian

the left and side and there was also an ovarian c$st right which, on opening up or freeing it up fro' the turned out to (e pus. Both ovaries turned out. . . to hav

nd then, cleaning up the uterus, at the (ac; of the uwas ver$ dirt$, it was full of pus. nd there was a Kpiru((er, we found a Kpiece ofL ru((er on the side. 4

1e agree with the Court of ppeals. &he phrase relied upon ($ the trial court donegate the fact that <r. Jho saw a piece of ru((er in private respondent @illegas8s a(dand that she sent it to a la(orator$ and then to Ce(u Cit$ for e7a'ination ($ a patholoNot even the Pathologist8s Aeport, although devoid of an$ 'ention of a piece of ru((eralter what <r. Jho saw. Further'ore, <r. Jho8s ;nowledge of the piece of ru((er could (ased on other than first%hand ;nowledge for, as she asserted (efore the trial court0

But $ou are sure $ou have seen Kthe piece of ru((er

6h $es. I was not the onl$ one who saw it. 6

&he petitioners e'phasi?e that the private respondents never reconciled <r. Jho8s teswith <r. Bati>uin8s clai' on the witness stand that when <r. Bati>uin confronted <a(out the foreign (od$, the latter said that there was a piece of ru((er (ut that she tawa$. lthough hearsa$, <r. Bati>uin8s clai' was not o(ected to, and hence, the sad'issi(le 7 (ut it carries no pro(ative value. Nevertheless, assu'ing otherwiBati>uin8s state'ent cannot (elie the fact that <r. Jho found a piece of ru((er near respondent @illegas8s uterus. nd even if we were to dou(t <r. Jho as to what she didpiece of ru((er, i .e., whether she threw it awa$ or sent it to Ce(u Cit$, we are not ust

distrusting her as to her recover$ of a piece of ru((er fro' private respondent @ila(do'en. 6n this score, it is perfectl$ reasona(le to (elieve the testi'on$ of a witnesrespect to so'e facts and dis(elieve his testi'on$ with respect to other facts. nd(een aptl$ said that even when a witness is found to have deli(eratel$ falsified in'aterial particulars, it is not re>uired that the whole of his uncorro(orated testi'oreected, (ut such portions thereof dee'ed worth$ of (elief 'a$ (e credited. 9

It is here worth noting that the trial court paid heed to the following portions of <r. Bati>uin8stesti'on$0 that no ru((er drain was used in the operation, 30 and that there was neither an$tear on <r. Bati>uin8s gloves after the operation nor (lood s'ears on her hands uponre'oving her gloves. 31 )oreover, the trial court pointed out that the a(sence of a ru((erd i ( t d ( < < i # < B ti i 8 i t t d i th ti

evidence where($ negligence of KtheL alleged wro'a$ (e inferred fro' KtheL 'ere fact that KtheL ahappened provided KtheL character of KtheL accidecircu'stances attending it lead reasona(l$ to (elief Kth L ( f li it ld t h



drain was corro(orated ($ <r. <oris #$, <r. Bati>uin8s assistant during the operation onprivate respondent @illegas. 3 But the trial court failed to recogni?e that the assertions of <rs.Bati>uin and #$ were denials or negative testi'onies. 1ell%settled is the rule that positivetesti'on$ is stronger than negative testi'on$. 33 6f course, as the petitioners advocate, suchpositive testi'on$ 'ust co'e fro' a credi(le source, which leads us to the second assignederror.

1hile the petitioners clai' that contradictions and falsities punctured <r. Jho8s testi'on$, a

regarding of the said testi'on$ reveals no such infir'it$ and esta(lishes <r. Jho as acredi(le witness. <r. Jho was fran; throughout her turn on the witness stand. Further'ore,no 'otive to state an$ untruth was ever i'puted against <r. Jho, leaving her trustworthinessuni'paired. 34 &he trial court8s following declaration shows that while it was critical of the lac;of care with which <r. Jho handled the piece of ru((er, it was not prepared to dou(t <r. Jho8scredi(ilit$, thus onl$ supporting our appraisal of <r. Jho8s trustworthiness0

&his is not to sa$ that she was less than honest when she testified a(out herfindings, (ut it can also (e said that she did not ta;e the 'ost appropriateprecaution to preserve that !piece of ru((er! as an elo>uent evidence of whatshe would reveal should there (e a !legal pro(le'! which she clai'KsL tohave anticipated. 35

Considering that we have assessed <r. Jho to (e a credi(le witness, her positive testi'on$

Kthat a piece of ru((er was indeed found in private respondent @illega8s a(do'enL prevailsover the negative testi'on$ in favor of the petitioners.

s such, the rule of res ipsa lo*uitur co'es to fore. &his Court has had occasion to delve intothe nature and operation of this doctrine0

&his doctrine Kres ipsa lo*uitur L is stated thus0 !1here the thing which causesinur$ is shown to (e under the 'anage'ent of the defendant, and theaccident is such as in the ordinar$ course of things does not happen in thosewho have the 'anage'ent use proper care, it affords reasona(le evidence,in the a(sence of an e7planation ($ the defendant, that the accident arosefro' want of care.! 6r as ;lack 8s a ?ictionary puts it0

Res ipsa lo*uitur . &he thing spea;s for itself. Ae(ucta(le

presu'ption or inference that defendant was negligent,which arises upon proof that KtheL instru'entalit$ causinginur$ was in defendant8s e7clusive control, and that theaccident was one which ordinar$ does not happen ina(sence of negligence. Aes ipsa lo>uitur is KaL rule of

KtheL a(sence of negligence it would not have occurrethat thing which caused inur$ is shown to have (eenKtheL 'anage'ent and control of K theL awrongdoer. . . . Under KthisL d. . . the happening of an inur$ per'its an inferenegligence where plaintiff produces su(stantial evidenKtheL inur$ was caused ($ an agenc$ or instru'under KtheL e7clusive control and 'anage'ent of defeand that the occurrence Ksic L was such that in the ocourse of things would not happen if reasona(le ca(een used.

777 777 777

&he doctrine of Kr Les ipsa lo*uitur as a rule of evidepeculiar to the law of negligence which recogni?e

prima facie negligence 'a$ (e esta(lished withoutproof and furnishes a su(stitute for specific prnegligence. &he doctrine is not a rule of su(stantive la'erel$ a 'ode of proof or a 'ere procedural conven&he rule, when applica(le to the facts and circu'stana particular case, is not intended to and does not diswith the re>uire'ent of proof of culpa(le negligence part$ charged. It 'erel$ deter'ines and regulates wh(e prima facie evidence thereof and facilitates the (uplaintiff of proving a (reach of the dut$ of due caredoctrine can (e invo;ed when and onl$ when, undcircu'stances involved, direct evidence is a(sent areadil$ availa(le. 36

In the instant case, all the re>uisites for recourse to the doctrine are present. First, theproceedings of the caesarean section were under the e7clusive control of <r. Bati>uin.light, the private respondents were (ereft of direct evidence as to the actual culprite7act cause of the foreign o(ect finding its wa$ into private respondent @illegas8swhich, needless to sa$, does not occur unless through the intersection of negl#econd, since aside fro' the caesarean section, private respondent @illegas underwother operation which could have caused the offending piece of ru((er to appearuterus, it stands to reason that such could onl$ have (een a ($%product of the caesection perfor'ed ($ <r. Bati>uin. &he petitioners, in this regard, failed to overco'presu'ption of negligence arising fro' resort to the doctrine of res ipsa lo*uitur . <r. Bis therefore lia(le for negligentl$ leaving (ehind a piece of ru((er in private respo@illegas8s a(do'en and for all the adverse effects thereof.

s a final word, this Court reiterates its recognition of the vital role the 'edical professionpla$s in the lives of the people, 37 and the #tate8s co'pelling interest to enact 'easures toprotect the pu(lic fro' !the potentiall$ deadl$ effects of inco'petence and ignorance in thosewho would underta;e to treat our (odies and 'inds for disease or trau'a.! 3 Indeed, aph$sician is (ound to serve the interest of his patients !with the greatest of solicitude giving



ph$sician is (ound to serve the interest of his patients !with the greatest of solicitude, givingthe' alwa$s his (est talent and s;ill.! 39 &hrough her tortious conduct, the petitionerendangered the life of Flotilde @illegas, in violation of her profession8s rigid ethical code andin contravention of the legal standards set forth for professionals, in general, 40 and 'e'(ersof the 'edical profession, 41 in particular.

1"/A/F6A/, the challenged decision of )a$ 994 of the Court of ppeals in C%D.A.C@ No. *+3 is here($ FFIA)/< in toto.

Costs against the petitioners.

#6 6A</A/<.

-arvasa, C.J., Melo, <rancisco and !an&ani3an, JJ., concur.

ir =ines, =td. shall li;ewise (e lia(le with its two co%defendants in a osolidar$ capacit$, the udg'ent appealed fro' is here($ affir'ed in arespects, without costs.

&h h ll d d i i f d t t t i th i f th f t th t




Manila

"ECN IHI"IN

G.R. No. 4595 May 1, 1990

C!NA AR LNE, LTD., petitioner,vs.COURT O/ A))EAL, JOE )AG"GAN, )!L))NE AR LNE, NC. an+ RO"ERTOE)RTU, respondents.

G.R. No. 46036 May 1, 1990

)!L))NE AR LNE, NC. an+ RO"ERTO E)RTU, petitioners,vs.COURT O/ A))EAL, JOE )AG"GAN an+ C!NA AR LNE, LTD., respondents.

;al&os ' !ere a 7ffices for petitioner China Air ines, td.

%i&uion Reyna, Montecillo ' 7n&siako for petitioners in .R. -o. 4H0GH.

%y*uia a 7ffices for Jose !a&si3i&an.

REGALADO, J.:

&hese consolidated petitions see; the review of the decision of respondent court in C%D.A.No. 3*2*%A entitled !ose /. Pagsi(igan, Plaintiff%ppellant, vs. Philippine ir =ines, Inc.and Ao(erto /spiritu, <efendants%ppellants5 China ir =ines, =td., <efendant%ppellee,! 1

the dispositive portion of which declares0

1"/A/F6A/, e7cept for a 'odification of the udg'ent in the sense thatthe award of P2,. in favor of the plaintiff shall (e in the concept ofno'inal da'ages instead of e7e'plar$ da'ages, and that defendant China

&he challenged decision of respondent court contains a s$nthesis of the facts that spthese cases and the udg'ent of the court a *uo which it affir'ed with 'odifications, th

6n une 4, 9+, plaintiff ose /. Pagsi(igan, then @ice%PresideDeneral )anager of Aento;il Phils.- Inc., a local fir' dealing in insecpesticides and related services appurtenant thereto, purchased a planefor a )anila%&aipei%"ong;ong%)anila flight fro' the &ransaire

genc$. &he said agenc$, through its Cecille Baron, contacted the

"otel (ranch of defendant Philippine ir =ines which at that ti'e was aand tic;eting agent of defendant China ir lines. 6n une , 9+through its tic;eting cler; defendant Ao(erto /spiritu, cut and issue⁣et No. :99 for a )anila%&aipei%"ong;ong%)anila flight. ccorthe plane tic;et, the plaintiff was (oo;ed on C= CI Flight No. +2 tofro' )anila for &aipei on une , 9+ at :02 hours 302 p.'.-,

.

6n une , 9+, one hour (efore the scheduled ti'e of the flight asin his tic;et, the plaintiff arrived at the airport to chec; in for CI Flight NUpon arriving at the airport, the plaintiff was infor'ed that the plane hsupposed to ta;e for &aipei had left at 02 in the 'orning of that daP= e'plo$ees at the airport 'ade appropriate arrange'ents for the pto ta;e P=8s flight to &aipei the following da$, une , 9+. &he p

too; said flight and arrived in &aipei around noonti'e of the said date.

6n ul$ +, 9+, the plaintiff, through counsel, 'ade for'al de'adefendant P=, for 'oral da'ages in not less than P23,. for wplaintiff allegedl$ suffered as a result of his failure to ta;e the flight asin his plane tic;et. /7hi(it /- fter a series of negotiations a'oplaintiff, P= and C= failed to reach an a'ica(le settle'ent, the pinstituted this action in the Court of First Instance of Ai?al on #epte'(99. In his co'plaint, plaintiff pra$s for the recover$ of P23,'oral da'ages and P23,. for and as attorne$8s fees. &heda'ages allegedl$ arose fro' the gross negligence of defendant A/spiritu in stating on the plane tic;et that the ti'e of departure washours, instead of 02 hours which was the correct ti'e of departurerevised su''er schedule of C=. Plaintiff clai's that ($ reason of his

to ta;e the plane, he suffered (es'irched reputation, e'(arrass'ent, anguish, wounded feelings and sleepless nights, inas'uch as when hto the airport, he was acco'panied ($ his (usiness associates, close and relatives. "e further averred that his trip to &aipei was for the purpconferring with a certain Peng #iong =i', President of the Union &Che'ical Corporation, scheduled at 90 a.'. on une , 9+.

<efendant Philippine ir =ines alleged in its answer that the departure ti'eindicated ($ /spiritu in the tic;et was furnished and confir'ed ($ thereservation office of defendant China ir =ines. It further averred that C=had not infor'ed P=8s )anila "otel Branch of the revised schedule of itsflight nor provided it with revised ti'eta(le5 that when the travel agenc$

&he co'plaint is dis'issed with respect to the defChina ir =ines, =td. &he cross%clai' filed ($ defendaand /spiritu against defendant C= as well as the clai' filed ($ the defendant C= against defendant P/spiritu are also here($ dis'issed 3



flight, nor provided it with revised ti'eta(le5 that when the travel agenc$sought to purchase the tic;et for the plaintiff on C= CI Flight No. +2 forune , 9+, /spiritu who was then the tic;eting cler; on dut$, chec;edwith the reservation office of C= on the availa(ilit$ of space, the date andthe ti'e of said flight5 that C=8s <or$ Chan infor'ed /spiritu that thedeparture ti'e of Flight No. +2 on une , 9+ was at 302 in theafternoon of said date. P= asserted a cross%clai' against C= for attorne$8sfees and for rei'(urse'ent of whatever a'ount the court 'a$ adudge P=to (e lia(le to the plaintiff. <efendant /spiritu adopted the defenses of his co%

defendant P=.

<efendant China ir =ines, for its part, disclai's lia(ilit$ for the negligenceand inco'petence of the e'plo$ees of P=. It avers that it had revised itsschedule since pril , 9+, the sa'e to (e effective on pril 2, 9+, andthe said revised schedule was adopted onl$ after proper petition with andapproval of the Civil eronautics Board of which all airlines, includingdefendant P=, were notified5 that (oth printed copies of the internationalti'eta(le and of the 'i'eographed notices of the official schedule and flightdeparture schedules were distri(uted to all its sales agents, including P=,that after the effectivit$ of the new ti'e schedules, P=8s )anila "otel officehad (een issuing and selling tic;ets (ased on the revised ti'e schedule5 andthat, assu'ing that the plaintiff is entitled to recover da'ages, the lia(ilit$ ison P= and not on C=. cross%c lai' was li;ewise asserted ($ C= against

its co%defendant P=.

fter due trial, the Court a *uo rendered udg'ent la$ing the (la'e for theerroneous entr$ in the tic;et as to the ti'e of departure to defendant Ao(erto/spiritu, tic;eting agent of defendant P=, and that no e'plo$ee of C=contri(uted to such erroneous entr$. It was further ruled that the plaintiff hadno reason to clai' 'oral da'ages (ut 'a$ (e entitled to recover e7e'plar$da'ages. &he dispositive portion of the decision 'a;es the followingadudication0

1"/A/F6A/, pre'ises considered, udg'ent is here($rendered sentencing the defendants Philippine ir =ines, Inc.and Ao(erto /spiritu, to pa$ to plaintiff ose Pagsi(igan

ointl$ and severall$, ($ wa$ of e7e'plar$ da'ages, the su'of &went$ &housand Pesos P2,.- plus &wo&housand Pesos P2,.- as rei'(urse'ent forattorne$8s fees and the costs.

/spiritu are also here($ dis'issed.

Fro' said decision of the court (elow, all the parties, e7cept China ir =ines, =td. apperespondent court which, however, sustained the ruling of the trial court den$ing Pagsiclai' for 'oral da'ages. It concluded that Ao(erto /spiritu did not act with 'alice or faith in 'a;ing a wrong entr$ of the ti'e of departure on the tic;et, and that the 'co''itted ($ /spiritu appears to (e an honest one done in good faith.

Aespondent court also ruled out the clai' for e7e'plar$ da'ages for lac; of legalNonetheless, as earlier noted, it awarded Pagsi(igan P2,. as no'inal da'ages rticle 222 of the Civil Code, for the vindication of a legal wrong co''itted against hregards the lia(ilit$ of the parties, respondent court held0

&here can (e little >uestion as to the lia(ilit$ of P= and /spiritu da'age caused to the plaintiff due to the erroneous entr$ in the plane'ade ($ the latter. &he$ see; to ustif$ the erroneous state'ent asti'e of departure on the ground that such was the ti'e given ($ <or$to /spiritu when the latter called up for the reservation in favor of p

side fro' the fact that <or$ Chan had vigorousl$ disclai'ed havingsuch infor'ation to /spiritu, 1e are convinced that, as the trial coufound, C= had no share in the error co''itted ($ /spiritu in indicatti'e of departure of Flight No. +2. P= had shown through the testi'

Car'en I(a?eta Dallaga, tic;et representative of P= at the )anila6ffice, that the$ received circulars and ti'eta(les of airlines in the Poffice. It further appears that on two occasions, defendant P= cissued tic;ets for C= (ased on the new schedule even (efore u9+. s a 'atter of fact, the other entries of ti'e departures in theissued to the plaintiff are in accordance with the revised schedule, anthe onl$ error therein was with respect to the departure fro' )anila o, 9+.

"owever, in proving that the fault lied with /spiritu, defendant C= dno solace nor gains an advantage. It 'a$ not clai' e7e'ption fro' ($ reason thereof. /spiritu was an e'plo$ee of P= and whnegligence was co''itted ($ hi' is attri(uta(le to P=. It is an ad'ittthat P= is an authori?ed agent of C=. In this relationship, the respon

of defendant P= for the tortious act of its agent or representainescapa(le. . . .

777 777 777

si'ilar principle is recogni?ed in our Civil Code in its rt. 2+ . . . . Unli;ein the doctrine of respondeat superior , however, the Civil Code per'its thee'plo$er to escape this lia(ilit$ upon proof of having o(served all thediligence of a good father of a fa'il$ to prevent the da'age. =e find theevidence of defendant C= to 3e insufficient to overcome the presumption of

In D.A. No. =%439+3, respondent Pagsi(igan contends, ($ wa$ of refutation, that lia(ilit$ is (ased on (reach of contract of transportation which was the pro7i'ate resulnegligence andHor error co''itted ($ P= and /spiritu5 that even assu'ing that C= share in the negligence of P= and /spiritu, the lia(ilit$ of C= does not cease uponthat it e7ercised all the diligence of a good father of a fa'il$ in the selection and supe



evidence of defendant C= to 3e insufficient to overcome the presumption ofne&li&ence on its part for the act done 3y defendant Ro3erto 8spiritu./'phasis supplied-

&he lia(ilit$ for the da'age sustained ($ the plaintiff should, therefore, (e(orne ($ all of the defendants in a oint and solidar$ capacit$ rt. 294-. &helia(ilit$ of an e'plo$er under rt. 2+ is pri'ar$ and direct. . . .

777 777 777

It appearing that defendant C=, as e'plo$er or principal, did not contri(uteto the negligence co''itted ($ defendants P= and Ao(erto /spiritu, itslia(ilit$ to the plaintiff could (e passed on to said defendants. <efendantC=, however, did not ta;e an appeal and did not, therefore, ta;e e7ceptionto the dis'issal of its cross%clai' against defendants P= and /spiritu. &hisserves as an o(stacle for a rendition of udg'ent favora(le to C= on its saidcounterclai'. 4

In its petition for review on certiorari in D.A. No. =%439+3, petitioner China ir =ines, =td.C=- relied on the following grounds0

. principal cannot (e held lia(le, 'uch less solidaril$, for the negligence of

the su(%agent, where the for'er never participated in, ratified or authori?edthe latter8s act or o'ission.

2. <is'issal of the cross%clai' of petitioner against the private respondentsPhilippine ir =ines, Inc. and Ao(erto /spiritu will not prevent the release ofthe petitioner fro' lia(ilit$ to the private respondent Pagsi(igan.

*. &he award of da'ages was unwarranted (oth legall$ and factuall$. 5

6n their part, petitioners Philippine ir =ines, Inc. P=- and Ao(erto /spiritu 'ade thefollowing su('issions in D.A. No. =%4*, to wit0

. &he respondent Court of ppeals erred in not holding that respondent

China ir =ines, =td., (eing the principal, is solel$ lia(le to respondentPagsi(igan.

2. &he respondent Court of ppeals erred in awarding respondentPagsi(igan the su' of P2,. as no'inal da'ages. 6

that it e7ercised all the diligence of a good father of a fa'il$ in the selection and supeof its e'plo$ees. &raversing such contentions, C= argues that it can not (e 'adeunder rticle 2+ of the Civil Code (ecause of the a(sence of e'plo$er%e'relationship (etween it and P=.

6n the other hand, in D.A. No. =%4*, respondent Pagsi(igan clai's that P= isunder rticle 99 of the said code which holds an agent responsi(le not onl$ for fraalso for negligence which shall (e udged with 'ore or less rigor ($ the courts, accordwhether the agenc$ was or was not for a co'pensation. P=, however, 'aintains tlac; of privit$ with Pagsi(igan, the suit for (reach of contract should have (een diagainst C=.

1hat surfaces as a procedural 'aneuver ta;en ($ respondent Pagsi(igan in the couthe proceedings in these cases has confused the real issues in the controvers$ su((oth petitions (efore us.

Aespondent Pagsi(igan has opted to see; redress ($ pursuing two re'edies at theti'e, that is, to enforce the civil lia(ilit$ of C= for (reach of contract and, li;ewise, to rfro' P= and /spiritu for tort or culpa a*uiliana. 1hat he has overloo;ed is the proscagainst dou(le recover$ under rticle 2:: of the Civil Code which, while not prevrecourse to an$ appropriate re'ed$, prevents dou(le relief for a single wrong.

&o avoid ine>uita(le effects under such confluence of re'edies, the true nature of theinstituted ($ respondent Pagsi(igan 'ust (e deter'ined. careful perusal of the co'of respondent Pagsi(igan will readil$ disclose that the allegations thereof clearun'ista;a(l$ 'a;e out a case for a *uasi#delict in this wise0

4. &hat at all pertinent ti'es particularl$ in une of 9+, defendant Ch=ines =td. has (een operating regular scheduled flights to and fro' )and has offered acco''odations thereon through, a'ong others, defP= as its authori?ed sales agent andHor tic;eting agent, such that

irlines =td. is here i'pleaded as (eing the principal of defendant P=

3. &hat at all pertinent ti'es, particularl$ in une of 9+, defendant A/spiritu has (een in the e'plo$ of defendant P= at its sales counteP= )anila "otel (ranch office and is here i'pleaded as defendant a

the proFimate malfeasor in this cause of action5

777 777 777

2. &hat plaintiff 'issed the initial )anila%&aipei leg CI Flight +2- on une, 9+, as set forth in his tic;et nne7 !!- solely and eFclusively 3yreason of &ross incompetence and ineFcusa3le ne&li&ence a'ounting to (adfaith of defendant P= acting, through its sales representative, thedefendant Ao(erto /spiritu, of its )anila "otel (ranch office in the

1e can not per'it respondent Pagsi(igan to change his theor$ at this stage5 it wounfair to the adverse part$ who would have no 'ore opportunit$ to present further evi'aterial to the new theor$, which it could have done had it (een aware earlier of ththeor$ at the ti'e of the hearing (efore the trial court. 10



pdischarge of its duties as sales agent andHor tic;eting agent for defendantChina irlines =td. as principal.

*. &hat as a direct result of culpa3le incompetence and ne&li&ence ofdefendant Ao(erto /spiritu as sales representative of defendant P=, plaintiffwas una(le to attend to previousl$ scheduled (usiness co''it'ents in&aipei . . . resulting in direct and indirect preudice to plaintiff that has $et to(e full$ assessed5 /'phasis supplied- 7

777 777 777

"ad the intention of respondent Pagsi(igan (een to 'aintain an action (ased on (reach ofcontract of carriage, he could have sued C= alone considering that P= is not a real part$ tothe contract. )oreover, in cases of such nature, the aggrieved part$ does not have to provethat the co''on carrier was at fault or was negligent. ll he has to prove is the e7istence ofthe contract and the fact of its non%perfor'ance ($ the carrier.

&he records disclose that the trial court delved 'uch into the issues of who was at fault, andits decision is pri'aril$ anchored on its factual findings regarding the civil lia(ilit$ arising fro'culpa a*uiliana of the erring part$, to this effect0

Plaintiff said that the erroneous entr$ in his tic;et which 'ade it appear thathis C= flight of une , 9+ was to (e at 302 in the afternoon was due tothe fault or negligence of P=8s Ao(erto /spiritu, a co%defendant herein, aswell as the e'plo$ees of the defendant C=. In 'a;ing C= co%responsi(le,plaintiff appears to rel$ on the doctrine that the principal is responsi(le for theact of an agent done within the scope of the agenc$.

&here is no proof e7tant that an$ of the e'plo$ees of P= had contri(uted tothe erroneous entr$ in plaintiffs P= tic;et for &aipei which placed his ti'e ofdeparture to 302 o8cloc; in the afternoon of une , 9+. 6nl$ defendantAo(erto /spiritu appears to (e solel$ and e7clusivel$ responsi(le for sucherror and therefor the conclusion (eco'es inevita(le that C= 'ust (ea(solved fro' an$ (la'e (ecause defendant Ao(erto /spiritu whoco''itted the error is not an e'plo$ee or agent of the defendant C=. 9

It, therefore, (eco'es evident that respondent Pagsi(igan, having sensed that he can nothold C= lia(le on a *uasi#delict, decided on appeal to instead 'a;e a sinistral detour, so tospea;, ($ clai'ing that his action against C= is (ased on a (reach of contract of carriage.

&here is indeed no (asis whatsoever to hold C= lia(le on a *uasi#delict or culpa a* s herein(efore stated, the court a *uo a(solved C= of an$ lia(ilit$ for fault or negli&his finding was shared ($ respondent court when it concluded that defendant C= dcontri(ute to the negligence co''itted ($ therein defendants%appellants P= and A/spiritu.

Aespondent Pagsi(igan insists that C= was (arred fro' proving that it o(serve

diligence in the selection and supervision of its e'plo$ees. &his argu'ent is o('isplaced. C= is not the e'plo$er of P= or /spiritu. In ?uavit vs. The $on. C Appeals, et al ., 11 we have stressed the need of first esta(lishing the e7istencee'plo$er%e'plo$ee relationship (efore an e'plo$er 'a$ (e vicariousl$ lia(le under2+ of the Civil Code.

1ith respect to P= and /spiritu, the$ disclai' an$ lia(ilit$ on the theor$ that the for'erel$ an agent of C= and that the suit should have (een directed against C= &here is no >uestion that the contractual relation (etween (oth airlines is one of a#uffice it to sa$, however, that in an action pre'ised on the e'plo$ee8s negligence, wrespondent Pagsi(igan see;s recover$ for the resulting da'ages fro' (oth P= and /without >ualification, what is sought to (e i'posed is the direct and pri'ar$ lia(ilit$ of an e'plo$er under said rticle 2+.

1hen an inur$ is caused ($ the negligence of an e'plo$ee, there instantl$ arpresu'ption of law that there was negligence on the part of the e'plo$er eitherselection of the e'plo$ee or in the supervision over hi' after such selectiopresu'ption, however, 'a$ (e re(utted ($ a clear showing on the part of the e'plo$ehas e7ercised the care and diligence of a good father of a fa'il$ in the selectiosupervision of his e'plo$ee. 1

"ence, to escape solidar$ lia(ilit$ for the *uasi#delict co''itted ($ /spiritu, it is i'pthat P= 'ust adduce sufficient proof that it e7ercised such degree of care. P= faoverco'e the presu'ption. s found ($ respondent court, C= had revised its scheflights since pril , 9+5 that after the Civil eronautics Board had approved the rschedule of flights, P= was dul$ infor'ed thereof and, in fact, P=8s )anila "otel (office had (een issuing and selling tic;ets (ased on the revised ti'e schedule (efor, 9+.

P=8s 'ain defense is that it is onl$ an agent. s a general proposition, an agent whacts as such is not personall$ lia(le to third persons. "owever, there are ad'itted e7ceas in this case where the agent is (eing sued for da'ages arising fro' a tort co''ihis e'plo$ee.

&he respondent court found that the 'ista;e co''itted ($ /spiritu was done in good faith.1hile there is no evidence that he acted with 'alice, we can not entirel$ condone hisactuations. s an e'plo$ee of P=, the nature of his functions re>uires hi' to o(serve for theprotection of the interests of another person that degree of care, precaution and vigilancewhich the circu'stances ustl$ de'and. "e co''itted a clear neglect of dut$.



/rgo, for his negligence, /spiritu is pri'aril$ lia(le to respondent Pagsi(igan under rticle2: of the Civil Code. For the failure of P= to re(ut the legal presu'ption of negligence inthe selection and supervision of its e'plo$ee, it is also pri'aril$ lia(le under rticle 2+ ofthe sa'e code which e7plicitl$ provides that e'plo$ers shall (e lia(le for the da'agescaused ($ their e'plo$ees and household helpers acting within the scope of their assignedtas;s, even though the for'er are not engaged in an$ (usiness or industr$.

Under the aforesaid provision, all that is re>uired is that the e'plo$ee, ($ his negligence,co''itted a *uasi#delict which caused da'age to another, and this suffices to hold thee'plo$er pri'aril$ and solidarit$ responsi(le for the tortious act of the e'plo$ee. P=,however, can de'and fro' /spiritu rei'(urse'ent of the a'ount which it will have to pa$the offended part$8s clai'. 13

6n the issue of da'ages, we agree, e7cept as to the a'ount, that no'inal da'ages 'a$ (eawarded to respondent Pagsi(igan to vindicate the legal wrong co''itted against hi'. Itappearing that the wrong co''itted was i''ediatel$ rectified when P= pro'ptl$ (oo;edhi' for the ne7t 'orning8s flight to &aipei where he arrived (efore noon of une , 9+ andwas a(le to attend his scheduled conference, and considering the concept and purpose ofno'inal da'ages, the award of P2,. 'ust accordingl$ (e reduced to an a'ount e>ualor at least co''ensurate to the inur$ sustained.

1"/A/F6A/, the decision of respondent Court of ppeals is )6<IFI/< accordingl$. China ir =ines, =td. is here($ a(solved fro' lia(ilit$. Philippine ir =ines, Inc. and Ao(erto /spirituare declared ointl$ and severall$ lia(le to pa$ the su' of P,. ($ wa$ of no'inalda'ages, without preudice to the right of Philippine ir =ines, Inc. to recover fro' Ao(erto/spiritu rei'(urse'ent of the da'ages that it 'a$ pa$ respondent ose Pagsi(igan.

#6 6A</A/<.

Melencio#$errera, !aras, !adilla and %armiento, JJ., concur.

[G.R. No. L>2F810. 33%t ;1, 1970.]

ROSRIO SNTOS @D. DE *ONI'!IO, @IRGINI *ONI'!IO, ROSLIND

*ONI'!IO, ROEO *ONI'!IO, KENID *ONI'!IO, GENEROSO *ONI'!IO,

NDRES *ONI'!IO, AOSE *ONI'!IO, AO@ITO *ONI'!IO, AR., !ORKON

*ONI'!IO, L*ERTO !ON!EP!ION, G&STIN NGELES (#) ELIS NGELES,

p4("#t"%>(ppe44ee% $% * L T *&S !O IN! (% S3e%%or% o LG&N T+*S

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("# Lo% *(Qo% (t t6e r(te o ;0 m"4e% per 6o3r be(3%e t6e o#rete ro(

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D E ! I S I O N

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p"t3re% E<6%. H, I, A, B, L, , (#) SS or 1; (#) 2F, pp. 92>9C, ;91, 57F, re.

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(t6e%, "t6 (# %3r(e mo#t64 "#ome o P250.00. He (##ot rep("r (t6e%

(#more. T6e 4oer o3rt r(#te) 6"m ompe#%(tor )(m(e% or P;,000.00.

' t6 " 6 ) " 6 t6 t b 4 ) ) 4 ) t

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t6e p4("#t"%>member% o t6e (m"4 o t6e )ee(%e) Ao$"to *o#"("o, Sr. "# t6e

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to 4berto !o#ep"o# (#) 3%t"# #e4e%, t6e %3m o P5,000.00 e(6. It (4%o

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((r)e) "% #ot 3#o#%"o#(b4e, (% (ppe44(#t% ($er, b3t (re :3%t""e), o#%")er"#

(44 t6e "r3m%t(#e% o t6e (%e.

I#tere%t o# t6e $(r"o3% )(m(e% (t F per (##3m %"#e t6e "4"# o t6e %3"t (%

(4%o ((r)e), )e%p"te t6e 4( o pr(er or "#tere%t "# t6e p4("#t"%= omp4("#t.

T6e r(#t o "#tere%t "% #ot #ee%%(r"4 error, or 3#)er t6e !"$"4 !o)e

RT. 2211. I# r"me% (#) 3(%">)e4"t%, "#tere%t (% ( p(rt o t6e )(m(e% m(,

"# ( proper (%e, be ():3)"(te) "# t6e )"%ret"o# o t6e o3rt.

T6e "#)"#% (#) o#43%"o#% o #e4"e#e o# t6e p(rt o t6e )ee#)(#t%>

(ppe44(#t%, (#) #ot o# t6e p(rt o t6e p4("#t"%>(ppe44ee%, %6o t6e 4( o mer"t

o t6e 4(%t (%%"#me#t o error (bo3t t6e )e#"(4 o (ppe44(#t%= o3#ter4("m or t6e

ee% o t6e"r o# o3#%e4.

ppe44(#t% %tre%% t6(t t6e tr"(4 o3rt %6o34) be 6e4) )"%3(4""e) be(3%e t6e

o3#%e4 or p4("#t"%>(ppe44ee% 6() bee# ( 4(%%m(te o t6e tr"(4 :3)e.

)m"tte)4, t6"% "% #ot ( 4e(4 ro3#) or )"%3(4""(t"o#. To (44o "t o34)

3##ee%%(r"4 b3r)e# ot6er tr"(4 :3)e% to 6om t6e (%e o34) be tr(#%erre).

&4t"m(te4, o#3%"o# o34) re%34t, or 3#)er t6e r34e ()$o(te), ( :3)e o34) be

b(rre) rom %"tt"# "# ( (%e 6e#e$er o#e o 6"% ormer 4(%%m(te% /(#) 6e

o34) 6($e m(# (ppe(re). Nor 6($e t6e (ppe44(#t% %3e%%344 %6o# 6ere

t6(t b"(% )"%torte) t6e :3)me#t or o#)3t o t6e 6(44e#e) tr"er o t6e (%e.

T6(t 6e %6o34) 3e%t"o# )ee#%e "t#e%%e% more 4o%e4 t6(# t6o%e o t6e

p4("#t"% "% b3t #(t3r(4, %"#e )ee#)(#t%= e$")e#e $(r"e% rom proo (4re() o#

reor). )e%"re to et (t t6e tr3t6 "% #o proo o b"(% or pre:3)"e.

'INDING NO RE@ERSI*LE ERROR, t6e )e"%"o# (ppe(4e) rom "% 6ereb ("rme).

!o%t% (("#%t t6e (ppe44(#t%.


Manila

!IR"+ IHI"IN

G.R. No. 9671 O&(o*r 1, 1993

EMLANO MANUEL an+ U)ERLNE TRAN)ORTATON CO., NC., petitioners,vs.!ONORA"LE COURT O/ A))EAL, ERNETO A. RAMO %u%(#(u(*+ y Goy*na . Ra2oGra&*, Da;#+, Jo*(, )or(#a an+ "an?o, a== %urna2*+ RAMO@ an+ GOENA ANAROA-Ror $*r%*= an+ a% Guar+#an Ad Litem or ($* 2#nor% JO"ET, "ANJO, DAD an+ GRACE, a%urna2*+ RAMO@ /ERNANDO A"CEDE, R., or $#2%*= an+ a% Guar+#an Ad Litem or 2/ERNANDO G. A"CEDE, JR.@ MGUEL JERN MAGO, a% Guar+#an Ad Litem or 2#nor ARLR. MAGO, an+ ANACLETA J. ANAROA, respondents.

;enito !. <a3ie for petitioners.

Constante ;anayos for private respondents.

>UAON, J.:

&his is an appeal ($ certiorari under Aule 43 of the Aevised Aules of Court fro' the decisioCourt of ppeals in C%D.A. C@ No. :+, and its Aesolution dated anuar$ +, 99, dpetitioner8s 'otion for reconsideration. &he decision su(ect of the appeal was an affir'atio udge'ent of the Court of First Instance of Ca'arines Norte, in Civil Case No. *2 anddispositive portion states0

PA/)I#/# C6N#I</A/<, udg'ent is here($ rendered 0 - finding the de/'iliano )anuel negligent, rec;less and i'prudent in the operation of #uperlinNo. 4, which was the pro7i'ate cause of the inuries suffered ($ the plaintda'age of the #cout Car in which the$ were riding5 2- ordering the said def ointl$ and solidaril$, with the defendant #uperlines Bus Co., Inc. to pa$ plaina'ounts of P49,934,+, as ite'i?ed elsewhere in this decision and the costs.

It appearing that the defendants #uperlines &ransportation Co., Inc. is insurthe defendant Perla Co'pania de #eguros, which has ad'itted such insuranlatter is here($ ordered to pa$ the for'er the a'ounts so stated up to the e7teinsurance coverage! Rollo, pp. :%:-.

&he operative facts culled fro' the decision of the Court of ppeals are as follows0

Private respondents were passengers of an International "arvester #cout Car #cout Car- owned ($respondent Aa'os, which left )anila for Ca'arines Norte in the 'orning of <ece'(er 2:, 9:: withrespondent Fernando (cede, #r. as the driver of the vehicle.

Aules on /vidence- erases, in the a(sence of evidence to the contrar$, an$ suspicions that theinvestigator ust invented the s;id 'ar;s indicated in his report.

Dranting, however, that the s;id 'ar;s in the >uestioned s;etch were inaccurate, nonethelefinding of the Court of ppeals that the collision too; place within the lane of the #cout csupported ($ other conclusive evidence. !Indeed, a trail of (ro;en glass which was scattered al

8 id f h d h h ( l i l l f d ( i / hi(i != ! *4 A



&here was a dri??le at a(out 40 P.). when the #cout car, which was then negotiating the ?ig?ag roadof Bo. Paraiso, #ta. /lena, Ca'arines Norte, was hit on its left side ($ a (us. &he (us was owned ($petitioner /'iliano )anuel. <ue to the i'pact, the #cout car was thrown (ac;wards against a protectiverailing. 1ere it not for the railing, the #cout car would have fallen into a deep ravine. ll its tenoccupants, which included four children were inured, seven of the victi's sustained serious ph$sicalinuries Rollo, p. 2+-.

/'iliano )anuel, the driver of the (us, was prosecuted for 'ultiple ph$sical inuries through rec;lessi'prudence in the )unicipal Court of #ta. /lena, Ca'arines Norte. s he could not (e found after heceased reporting for wor; a few da$s following the incident, the private respondents filed the instantaction for da'ages (ased on *uasi#delict .

fter trial, the court a *uo rendered udg'ent against petitioners and Perla Co'pania de #eguros, thatcovered the insurance of the (us. &he court ordered the' to pa$, ointl$ and severall$, the a'ount ofP49,934.+ in da'ages to respondents.

6n appeal, the Court of ppeals, affir'ed the decision of the trial court.

In their appeal (efore us, petitioners contend that it was Fernando (cede, r., driver of the #cout car,who was at fault. Besides, petitioners clai' the Fernando (cede, r., who was onl$ 9%$ears old at theti'e of the incident, did not have a driver8s license Rollo, p. -.

Proof of this, according to petitioners, was that0

I''ediatel$ after the incident, the (us conductor Cesar Pica and passengers,including )a7i'ino aro, alighted fro' the (us. wo'an passenger of the I" #coutcar, )rs. Aa'os, was heard sa$ing0 !I$an na nga (a ang sinasa(i ;o, napa;ala;asng loo(,! referring to $oung 'an, Fernando (cede, r. who was the driver of the I"#cout car tsn., p. 4*, Nove'(er 9, 9:95 tsn, p. 2*%. Fe(ruar$ :, 9+- . . . Rollo,p. :3-.

=i;ewise, petitioner >uestioned the accurac$ of the pictures and s;etches su('itted ($ privaterespondents as evidence that the #uperlines (us encroached on the lane of the #cout car. ccording tothe', the s;etch 'ade ($ the police investigator showing the s;id 'ar;s of the (us, is inad'issi(le asevidence (ecause it was prepared the da$ after the incident and the alleged !tell%tale! s;id 'ar;s andother details had alread$ (een o(literated ($ the heav$ downpour which lasted for at least an hour afterthe accident Rollo, p. +:-. =i;ewise, the$ clai' that the police'an who prepared the s;etch was not the

police officer assigned to conduct the investigation Rollo, pp. ++%+9-.

1hile it 'a$ (e accepted that so'e of the s;id 'ar;s 'a$ have (een erased ($ the !heav$ downpour!on or a(out the ti'e of the accident, it re'ains a possi(ilit$ that not all s;id 'ar;s were washed awa$.&he strong presu'ption of regularit$ in the perfor'ance of official dut$ Aule *, #ec. *'-, 9+9

car8s side of the road, whereas the (us lane was entirel$ clear of de(ris /7hi(it !=%,! p. *4, App. 3%35 &#N, #ession of )arch 4, 9:9-! Rollo, p. *-.

Further'ore, the fact that the #cout car was found after the i'pact at rest against the guardshows that it 'ust have (een hit and thrown (ac;wards ($ the (us Rollo, p. *-. &he pevidence do not show that the #uperlines Bus while traveling at high speed, usurped a portiolane occupied ($ the #cout car (efore hitting it on its left side. 6n collision, the i'pact due to the7erted ($ a heavier and (igger passenger (us on the s'aller and lighter #cout car, heavil$ da

the latter and threw it against the guard railing.

Petitioner8s contention that the #cout car 'ust have (een 'oved (ac;wards is not onl$ a spec(ut is contrar$ to hu'an e7perience. &here was no reason to 'ove it (ac;wards against therailing. If the purpose was to clear the road, all that was done was to leave it where it was at the the collision, which was well inside its assigned lane. Besides, even petitioners accept the fwhen the police arrived at the scene of the accident, the$ found no one thereat Rollo, p. further wea;ens the possi(ilit$ that so'e persons 'oved the #cout car to rest on the guard railin

&he evidence with respect to the issue that Fernando (cede, r. who was not dul$ licensed, wone driving the #cout car at the ti'e of the accident, could not si'pl$ e7e'pt petitioner8s (ecause the$ were parties at fault for encroaching on the #cout car8s lane Rollo, pp. 29%*-.

Nevertheless, the witnesses presented ($ petitioners who allegedl$ saw !the $ounger (ced(ehind the driver8s wheels,! testified on 'atters that transpired after the accident. <iscredit

allegation, the Court of ppeals noted that none of the aforesaid witnesses actuall$ saw the $ (cede driving the car and that the $ounger (cede could have si'pl$ (een thrown off his seatthe steering wheel Rollo, p. 29-.

Be that as it 'a$, this Court has followed a well%entrenched principle that the factual findingsCourt of ppeals are nor'all$ given great weight, 'ore so when the findings tall$ with the findthe trial court and are supported ($ the evidence Francisco v. )ag(itang, :* #CA *+2 K9+96wnersH)anage'ent of &)= Dar'ents, Inc. v. aragosa, : #CA 3*%34 K9+9L-.

&he reason for this entrenched principle is given in ChempleF (!hils. ), :nc ., et al . v . Ra!amatian, et al ., 3: #CA 4+ K9:4L, thus0

&his Court is not a trier of facts, and it is (e$ond its function to 'a;e its own fof certain vital facts different fro' those of the trial court, especiall$ on the (the conflicting clai's of the parties and without the evidence (eing properl$ (For this Court to 'a;e such factual conclusions is entirel$ unustified first, (if 'aterial facts are controverted, as in this case, and the$ are issues (eing (efore the lower court, the petition for certiorari would not (e in aid of the a urisdiction of this Court5 and, secondl$, (ecause it pree'pts the pri'ar$ funthe lower court, na'el$, to tr$ the case on the 'erits, receive all the evide

presented ($ the parties, and onl$ then co'e to a definite decision, including eitherthe 'aintenance or the discharge of the preli'inar$ inunction it has issued.

ppellants, li;ewise, contested the awarded da'ages as e7cessive and unsu(stantiated. &he trialcourt8s findings show otherwise, as can (e gleaned fro' the following e7cerpt of this decision0



Plaintiffs were a(le to prove their inuries and su('itted evidence to show e7pensesfor their treat'ent, hospitali?ation and incidental dis(urse'ent /7hs. to "" andtheir su('ar;ings-, having a total a'ount of P2,24.+ which had ad'ittedl$ sic-shouldered ($ plaintiff /rnesto Aa'os. Considering the nature of the inuries asshown ($ the respective )edical Certificates /7hs. to and their su('ar;ings-said a'ount is ver$ reasona(le. It was also shown that the #cout car is a total wrec;,the value of which was esti'ated to (e P2,. which 'a$ (e the sa'e a'ountto put sic- into a running condition. 1e consider, li;ewise said a'ount reasona(le

ta;ing into account its (rand International "arvester #cout car-. &he a(ove'entioned da'ages are considered actual or co'pensator$ Par. rt. 29: inrelation to rt. 299, New Civil Code-. /vidence was also adduced showing that as aresult of the incident and the resultant inuries there had (een an i'pair'ent on theearning capacit$ of so'e of the plaintiffs Fernando (cede, #r., nacleta anarosa,/rnesto Aa'os and Do$ena Aa'os- which are recovera(le pursuant to rticle 223of the New Civil Code. Considering the nature of their inuries one 'onth each loss ofinco'e see' reasona(le. ttorne$8s fees and e7penses of litigation is also proper.#ince the act co'plained of falls under the aegis of *uasi#delict culpa a*uilina-,'oral da'ages is li;ewise availa(le to plaintiffs pursuant to rticle 229 also of theNew Civil Code Rollo, pp. *%4-.

In addition, 'oral da'ages 'a$ (e recovered if the$ are the pro7i'ate results of defendant8s wrongfulacts or o'ission as in this case Banson vs. C, :3 #CA 29: K9+9L-.

1"/A/F6A/, the petition is </NI/< and the <ecision of the Court of ppeals is FFIA)/<, withcosts against petitioners.

#6 6A</A/<.

Cru, ?avide, Jr. and ;ellosillo, JJ., concur.

riño#A*uino, J., is on leave.

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