G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs. INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners, vs. INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral damages, attorney's fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car

bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando. When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a team of police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid marks.

In his statement to the investigating police officers immediately after the accident, Galang admitted that

he was traveling at thirty (30) miles (48 kilometers) per hour.

As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4

On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5

In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge Ignacio Capulong.

Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge Mario Castaeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty beyond reasonable doubt of the crime charged in the information and after applying the provisions of Article 365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision

correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15

The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for petitioners filed with Branch III of the court where the two (2) civil cases were pending a manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The dispositive portion of the said decision reads as follows:

WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic). 18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983. 24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages P 12,000.00 as death indemnity P 16,000.00 for the lot and tomb (Exhs. U and U-1) P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979) P 950.00 for the casket (Exh. M) P 375.00 for the vault services (Exhs. V and V-1)

For the death of Kim Koh McKee:

P 50,000.00 as moral damages P 12,000.00 as death indemnity P 1,000.00 for the purchase of the burial lot (Exh. M) P 950.00 for funeral services (Exh. M-1) P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages P 672.00 for Clark Field Hospital (Exh. E) P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and D-2) P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages P 1,055.00 paid to St. Francis Medical Center (Exhs. G and G-1) P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3) P 428.00 to Carmelite General Hospital (Exh. F) P 114.20 to Muoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1) P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee. 27 This conclusion of reckless imprudence is based on the following findings of fact:

In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.

Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31, Appellants' Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived across the street.

Regarding Soliman, experience has shown that in the ordinary course of events people usually take the side of the person with whom they are associated at the time of the accident, because, as a general rule, they do not wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously created among the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not go to the succor of the injured persons. He said he wanted to call the police authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only about ten (10) meters away from you for the first time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and none were found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck were caused by the truck's front wheels when

the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of the defendants in the selection of their driver or in the supervision over him. Appellees did not allege such defense of having exercised the duties of a good father of a family in the selection and supervision of their employees in their answers. They did not even adduce evidence that they did in fact have methods of selection and programs of supervision. The inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's attention was on the highway, he would have sighted the car earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was already inevitable, because at the time that he entered the bridge his attention was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the items must be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30

Hence, this petition.

Petitioners allege that respondent Court:

I

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID

DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III

. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.

V

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave due course to the instant petitions and

required petitioners to file their Brief, 35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-arguments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed, and understandably so, since by then no specific provision of law or ruling of this Court expressly allowed such a consolidation, that an independent civil action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33 itself expressly provides that the "civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." Be that as it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigants, 36 would have easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their respective orientation, perception and perhaps even prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was what happened in this case. It should not, hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action subject, however, to the condition that no final judgment has been rendered in that criminal case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to this case.

As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the

civil liability arising from negligence under the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the same manner to be filed separately from the criminal case, may proceed similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed independently even during the pendency of the latter case, the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so because the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. It would have been entirely different if the petitioners' cause of action was for damages arising from a delict, in which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against Galang would have been conclusive in the civil cases for the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations, conjectures and presumptions.

The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment. 43The same is true where the appellate court's conclusions are grounded entirely on conjectures, speculations and surmises44 or where the conclusions of the lower courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the findings and conclusions of the trial court and the respondent Court in its challenged resolution are not supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the

lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus:

. . . Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury." (Cooley on Torts, Fourth Edition, vol. 3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e held:

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that(reasonable care and caution which an ordinarily prudent person would have used in the same situation?) If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamiliasof the Roman law. . . .

In Corliss vs. Manila Railroad Company, 48 We held:

. . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding

such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level

sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents' claim that there was an error in the translation by the investigating officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly performed; 53 unless there is proof to the contrary, this presumption holds. In the instant case, private respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision as you narrated in this Exhibit "1," how did you know?

A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 30-31, Appellants' Brief) 54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

Q Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55

Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. 56

In Bustamante vs. Court of Appeals, 57 We held:

The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).

The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:

The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it

appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage. Article 2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

The diligence of a good father referred to means the diligence in the selection and supervision of employees. 60The answers of the private respondents

in Civil Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984 finds no sufficient legal and factual moorings.

In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

SO ORDERED.

G.R. No. L-2075 November 29, 1949

MARGARITA AFIALDA, plaintiff-appellant, vs. BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.

Nicolas P. Nonato for appellant. Gellada, Mirasol and Ravena for appellees.

REYES, J.:

This is an action for damages arising from injury caused by an animal. The complaint alleges that the now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker of their carabaos at a fixed compensation; that while tending the animals he was, on March 21, 1947, gored by one of them and later died as a consequence of his injuries; that the mishap was due neither to his own fault nor to force majeure; and that plaintiff is his elder sister and heir depending upon him for support.

Before filing their answer, defendants moved for the dismissal of the complaint for lack of a cause of action, and the motion having been granted by the lower court, plaintiff has taken this appeal.

Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:

The possessor of an animal, or the one who uses the same, is liable for any damages it may cause, even if such animal should escape from him or stray away.

This liability shall cease only in case, the damage should arise from force majeure or from the fault of the person who may have suffered it.

The question presented is whether the owner of the animal is liable when damage is caused to its caretaker.

The lower court took the view that under the above-quoted provision of the Civil Code, the owner of an animal is answerable only for damages caused to a stranger, and that for damage caused to the caretaker of the animal the owner would be liable only if he had been negligent or at fault under article 1902 of the same code. Claiming that the lower court was in error, counsel for plaintiff contends that the article 1905 does

not distinguish between damage caused to the caretaker and makes the owner liable whether or not he has been negligent or at fault. For authority counsel cites the following opinion which Manresa quotes from a decision of the Spanish Supreme Court:

El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara y evidentemente, se deriva de sus terminos literales, bastando, segun el mismo, que un animal cause perjuicio para que nasca la responsibilidad del dueno, aun no imputandose a este ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal concepto de dueno es suficiente para que arrastre las consecuencias favorables o adversas de esta clase de propiedad, salvo la exception en el mismo contenida. (12 Manresa, Commentaries on the Spanish CivilCode, 573.)

This opinion, however, appears to have been rendered in a case where an animal caused injury to a stranger or third person. It is therefore no authority for a case like the present where the person injured was the caretaker of the animal. The distinction is important. For the statute names the possessor or user of the animal as the person liable for "any damages it may cause," and this for the obvious reason that the possessor or user has the custody and control of the animal and is therefore the one in a position to prevent it from causing damage.

In the present case, the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. And being injured by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), the death of an employee who was bitten by a feline which his master had asked him to take to his establishment was by said tribunal declared to be "a veritable accident of labor" which should come under the labor laws rather than under article 1905 of the Civil Code. The present action, however, is not brought under the Workmen's Compensation Act, there being no allegation that, among other things, defendant's business, whatever that might be, had a gross income of P20,000. As already stated, defendant's liability is made to rest on article 1905 of the Civil Code. but action under that article is not tenable for the reasons already stated. On the other hand, if action is to be based on article 1902 of the Civil Code, it is essential that there be fault or negligence on the part of the defendants as owners of the animal that caused the damage. But the complaint contains no allegation on those points.

There being no reversible error in the order appealed from, the same is hereby affirmed, but without costs in view of the financial situation of the appellant.

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, vs. COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered. 2

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations. 5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as exemplary damages, with legal rate of interest from the date of the filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party plaintiff has paid to the plaintiff. With costs against the defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. 7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for reconsideration.10 This resolution was received by respondent spouses on February 22, 1980. 11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten (10) days from notice thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had already filed their second motion for reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the second motion for reconsideration, designated two additional justices to form a division of five. 16 On September 3,

1980, said division of five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980, and affirming in toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of September 3, 1980, contending that the second motion for reconsideration of private respondent spouses was filed out of time and that the decision of September 25, 1979 penned by Justice Agrava was already final. It further submitted therein that the relationship of Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court dated October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground that the decision of the Special Second Division, dated September 25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and on the additional ground that said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor rule in holding PLDT liable to respondent Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava asponente;

(b) October 10, 1979, a copy of said decision was received by private respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private respondents;

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

(e) February 22, 1980, a copy of said denial resolution was received by private respondents;

(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private respondents

(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for reconsideration within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated September 25, 1979 and setting aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for reconsideration and, consequently, said second motion for reconsideration itself were filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for reconsideration may be presented within fifteen (15) days from notice of the order or judgment deducting the time in which the first motion has been pending. 20 Private respondents having filed their first motion for reconsideration on the last day of the reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt on February 22, 1980 of the resolution denying their first motion for reconsideration, private respondents had two remedial options. On February 23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for leave of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the period within which to do so. On the other hand, they could have appealed through a petition for review on certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which motions were by then time-barred.

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which was suspended during the pendency of the first motion for reconsideration, the Court of Appeals could no longer validly take further proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid decision and/or

resolution. The filing of the motion for leave to file a second motion for reconsideration by herein respondents on February 29, 1980 and the subsequent filing of the motion itself on March 7, 1980, after the expiration of the reglementary period to file the same, produced no legal effects. Only a motion for re-hearing or reconsideration filed in time shall stay the final order or judgment sought to be re-examined. 23

The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to file a second motion for reconsideration, is null and void. The period for filing a second motion for reconsideration had already expired when private respondents sought leave to file the same, and respondent court no longer had the power to entertain or grant the said motion. The aforesaid extension of ten (10) days for private respondents to file their second motion for reconsideration was of no legal consequence since it was given when there was no more period to extend. It is an elementary rule that an application for extension of time must be filed prior to the expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said extension for filing a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the same.

No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second motion for reconsideration and reversing the original decision are null and void and cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the accepted rule that once a decision has become final and executory it is removed from the power and jurisdiction of the court which rendered it to further alter or amend, much less revoke it. 25 The decision rendered anew is null and void. 26 The court's inherent power to correct its own errors should be exercised before the finality of the decision or order sought to be corrected, otherwise litigation will be endless and no question could be considered finally settled. Although the granting or denial of a motion for reconsideration involves the exercise of discretion, 27 the same should not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of the respondent court in its original decision that the accident which befell private respondents was due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. Such findings were reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced

by the respondent court's resolution of January 24, 1980 which we quote with approval:

First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the left that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was not due to the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. That may explain plaintiff-husband's insistence that he did not see the ACCIDENT MOUND for which reason he ran into it.

Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.

It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely and conveniently passable to vehicles. The situation could have been worse to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing south was taken.

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not have been thrown against the windshield and they would not have suffered their injuries.

Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND, then plaintiff-husband had not exercised the diligence of a good father of a family to avoid the accident. With the drizzle, he should not have run on dim lights, but should have put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he was running on the outside lane at 25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the existence and location of the ACCIDENT MOUND, having seen it many previous

times. With ordinary precaution, he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT MOUND. 29

The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages. 30 The perils of the road were known to, hence appreciated and assumed by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner.

The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform and warn the public of the presence of excavations on the site. The private respondents already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury. 31 It is basic that private respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient evidence to prove any negligence on the part of PLDT. We have for consideration only the self-serving testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of a police report of the incident and the non-submission of a medical report from the hospital where private respondents were allegedly treated have not even been satisfactorily explained.

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980

(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can

only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated, with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing the same motivation to plaintiffs, another person could have deliberately engineered a similar accident in the hope and expectation that the Court can grant him substantial moral and exemplary damages from the big corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant which would have extreme difficulty in contesting such person's claim. If there were no witness or record available from the police department of Bacolod, defendant would not be able to determine for itself which of the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police department. 32

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. 33 Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and AFFIRMED.

SO ORDERED.

G.R. No. L-53401 November 6, 1989

THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs. HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

Herman D. Coloma for petitioner.

Glicerio S. Ferrer for private respondents.

PARAS, J.:

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following dispositive portion:

WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both instances. (p. 27 Rollo)

Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their respective versions of the scenario from which the disputed claims originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as follows:

From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon had abated and when the floodwaters were

beginning to recede the deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at four meters away from her he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four or five blocks away.

When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. The floodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about two meters from an electric post.

In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street "and the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel Lao Juan, he passed by

the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which was a standard equipment in his jeep and employing the skill he acquired from an in service training on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the way. He told them about the grounded lines of the INELCO In the afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.

Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).

In defense and exculpation, defendant presented the testimonies of its officers and employees, namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to prove that on and even before June 29, 1967 the electric service system of the INELCO in the whole franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question. As a public service operator and in line with its business of supplying electric current to the public, defendant had installed safety devices to prevent and avoid injuries to persons and damage to property in case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up of the areas respectively assigned to them.

Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported to have suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge which was washed away and where the INELCO lines and posts collapsed; in the eastern part near the residence of the late Governor Simeon Mandac; in the far north near

the defendant's power plant at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.

A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the real cause of death. Cyanosis could not have been found in the body of the deceased three hours after her death, because cyanosis which means lack of oxygen circulating in the blood and rendering the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by electrocution; since burns caused by electricity are more or less round in shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)

An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died simply either by drowning or by electrocution due to negligence attributable only to herself and not to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the latter with electric current whenever the switch is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on, hence, causing the deceased's electrocution when she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the controverted decision.

In this petition for review the petitioner assigns the following errors committed by the respondent CA:

1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely hearsay alleged declarations of Ernesto de la Cruz as part of theres gestae.

2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the strong

typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and deluge it brought in its wake were not fortuitous events and did not exonerate petitioner-company from liability for the death of Isabel Lao Juan.

3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal principle of "assumption of risk" in the present case to bar private respondents from collecting damages from petitioner company.

4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the findings of fact of the trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.

6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now petitioner company.

7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners Memorandum, p. 133, Rollo)

Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether or not petitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's substitution of the trial court's factual findings for its own was proper.

In considering the first issue, it is Our view that the same be resolved in the affirmative. By a preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a conclusion which can be primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the water, they tried to render some help but were overcome with fear by the sight of an electric wire dangling from an electric post, moving in the water in a snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were "burns," and there was nothing else in the street where the victim

was wading thru which could cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).

But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if such was really the case when she tried to open her steel gate, which was electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation, not backed up with evidence. As required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).

Furthermore the CA properly applied the principle of res gestae. The CA said:

Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that fateful morning of June 29, 1967