Torts Cases

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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 SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, asdamages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court ofFirst Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the CarlatanBridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his ponyover said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in anautomobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw ahorseman on it and blew his horn to give warning of his approach. He continued his course and after he had takenthe bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him wasnot observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by thenovelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the rightside of the bridge instead of going to the left. He says that the reason he did this was that he thought he did nothave sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and awidth of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the properside of the road for the machine. In so doing the defendant assumed that the horseman would move to the otherside. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeingthat the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away orslowing down, continued to approach directly toward the horse without diminution of speed. When he had gottenquite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turnedhis car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in sodoing the automobile passed in such close proximity to the animal that it became frightened and turned its bodyacross the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by theflange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence. From theevidence adduced in the case we believe that when the accident occurred the free space where the pony stoodbetween the automobile and the railing of the bridge was probably less than one and one half meters. As a result ofits injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and requiredmedical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner abovedescribed was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are ofthe opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horseand the rider would pass over to the proper side; but as he moved toward the center of the bridge it wasdemonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too latefor the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situationoccurred while the automobile was yet some distance away; and from this moment it was not longer within thepower of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had

G.R. No. L-12219 http://www.lawphil.net/judjuris/juri1918/mar1918/gr_l-12219_1918.html

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then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing thatthere were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse toavoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse.He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of theknown nature of horses, there was an appreciable risk that, if the animal in question was unacquainted withautomobiles, he might get exited and jump under the conditions which here confronted him. When the defendantexposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did thedefendant in doing the alleged negligent act use that person would have used in the same situation? If not, then heis guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conductof the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined byreference to the personal judgment of the actor in the situation before him. The law considers what would bereckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course bealways determined in the light of human experience and in view of the facts involved in the particular case. Abstractspeculations cannot here be of much value but this much can be profitably said: Reasonable men govern theirconduct by the circumstances which are before them or known to them. They are not, and are not supposed to be,omniscient of the future. Hence they can be expected to take care only when there is something before them tosuggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of thecourse actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm.Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessarybefore negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence ofnegligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of thetortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoingconduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established.A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course whichhe was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider asreasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty toguard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence inplanting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent;and in such case the problem always is to discover which agent is immediately and directly responsible. It will benoted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendantsucceeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that theperson who has the last fair chance to avoid the impending harm and fails to do so is chargeable with theconsequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentionedin this connection. This Court there held that while contributory negligence on the part of the person injured did notconstitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise havebeen assessed wholly against the other party. The defendant company had there employed the plaintiff, as alaborer, to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away.The rails were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edgethe track gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. Thecar was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared inevidence that the accident was due to the effects of the typhoon which had dislodged one of the supports of thetrack. The court found that the defendant company was negligent in having failed to repair the bed of the track andalso that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side ofthe car instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason ofits negligence in having failed to keep the track in proper repair nevertheless the amount of the damages should bereduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in thatcase consisted in an omission only. The liability of the company arose from its responsibility for the dangerouscondition of its track. In a case like the one now before us, where the defendant was actually present and operatingthe automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of therespective parties in order to apportion the damage according to the degree of their relative fault. It is enough to saythat the negligence of the defendant was in this case the immediate and determining cause of the accident and thatthe antecedent negligence of the plaintiff was a more remote factor in the case.


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A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to theeffect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. Inthis connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedingsto be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesionesgraves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings weredismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for theoffense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a pointupon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminalproceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep.,564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment is herrendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of otherinstances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff,the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of thisrecovery. The other damages claimed by the plaintiff are remote or otherwise of such character as not to berecoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.Johnson, J., reserves his vote.

Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because of myunderstanding of the "last clear chance" rule of the law of negligence as particularly applied to automobile accidents.This rule cannot be invoked where the negligence of the plaintiff is concurrent with that of the defendant. Again, if atraveler when he reaches the point of collision is in a situation to extricate himself and avoid injury, his negligence atthat point will prevent a recovery. But Justice Street finds as a fact that the negligent act of the interval of time, andthat at the moment the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule isapplicable. In other words, when a traveler has reached a point where he cannot extricate himself and vigilance onhis part will not avert the injury, his negligence in reaching that position becomes the condition and not the proximatecause of the injury and will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

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Manila

EN BANC

G.R. No. L-39587 March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,vs.THE MANILA RAILROAD COMPANY, defendant-appellant.

Harvey and O'Brien for plaintiffs-appellants.Jose C. Abreu for defendant-appellant.

VILLA-REAL, J.:

This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffsAleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part ofwhich reads as follows:

Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposesabove stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by theplaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the saidplaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum ofP5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital, Provinceof Laguna, and the balance to the plaintiff Aleko E. Lilius.

In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by thetrial court in its said judgment, which will be discussed in the course of this decision.

As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed bythe same court a quo in its judgment in question, which will be discussed later.

This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that theManila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral damagessuffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 pluslegal interest thereon from the date of the filing of the complaint, with costs.

The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereofand, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife andcoplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the complaint.

The following facts have been proven at the trial, some without question and the others by a preponderance ofevidence, to wit:

The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer.At the time of the collision in question, he was a staff correspondent in the Far East of the magazines The AmericanWeekly of New York and The Sphere of London.

Some of his works have been translated into various languages. He had others in preparation when the accidentoccurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability ofhis wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore,she acted as his secretary.

At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year olddaughter Brita Marianne Lilius, left Manila in their Studebaker car — driven by the said plaintiff Aleko E. Lilius — for


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the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said tripalthough he had already been to many places, driving his own car, in and outside the Philippines. Where the roadwas clear and unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had madethe trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with theconditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Beforereaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were manyhouses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eightmeters from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road.Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He sloweddown to about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thusoccupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge blackmass fling itself upon him, which turned out to be locomotive No. 713 of the defendant company's train comingeastward from Bay to Dayap station. The locomotive struck the plaintiff's car right in the center. After dragging thesaid car a distance of about ten meters, the locomotive threw it upon a siding. The force of the impact was so greatthat the plaintiff's wife and daughter were thrown from the car and were picked up from the ground unconscious andseriously hurt. In spite of the efforts of engineer Andres Basilio, he was unable to stop the locomotive until after ithad gone about seventy meters from the crossing.

On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they weretreated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eyeand a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body.As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months hehad great difficulty in concentrating his attention on any matter and could not write articles nor short stories for thenewspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood.

The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, belowthe knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the leftleg for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question stillcontinues deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result theplaintiff will have some difficulty in walking. The lacerated wound, which she received on her forehead, has left adisfiguring scar.

The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side ofthe face, in addition to fractures of both legs, above and below the knees. Her condition was serious and, for severaldays, she was hovering between life and death. Due to a timely and successful surgical operation, she survived herwounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, andbecause of the fractures of both legs, although now completely cured, she will be forced to walk with some difficultyand continuous extreme care in order to keep her balance.

Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody towarn the public of approaching trains. The flagman or switchman arrived after the collision, coming from the stationwith a red flag in one hand and a green one in the other, both of which were wound on their respective sticks. Thesaid flagman and switchman had many times absented himself from his post at the crossing upon the arrival of atrain. The train left Bay station a little late and therefore traveled at great speed.

Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial insupport of their respective contentions, and after taking into consideration all the circumstances of the case, thiscourt is of the opinion that the accident was due to negligence on the part of the defendant-appellant company, fornot having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of itsexistence in order that they might take the necessary precautions before crossing the railroad; and, on the part of itsemployees — the flagman and switchman, for not having remained at his post at the crossing in question to warnpassers-by of the approaching train; the stationmaster, for failure to send the said flagman and switchman to hispost on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of theabsence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing thewhistle before arriving at the crossing. Although it is probable that the defendant-appellant entity employed thediligence of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligencein supervising their work and the discharge of their duties because, otherwise, it would have had a semaphore orsign at the crossing and, on previous occasions as well as on the night in question, the flagman and switchmanwould have always been at his post at the crossing upon the arrival of a train. The diligence of a good father of afamily, which the law requires in order to avoid damage, is not confined to the careful and prudent selection ofsubordinates or employees but includes inspection of their work and supervision of the discharge of their duties.

However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it


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is not enough that the latter has been guilty of negligence, but it is also necessary that the said victim has not,through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor'spersonal safety and property, but everybody should look after them, employing the care and diligence that a goodfather of a family should apply to his own person, to the members of his family and to his property, in order to avoidany damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and thepresence of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a happyending, driving his car at a speed which prudence demanded according to the circumstances and conditions of theroad, slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, inorder to warn them of his approach and request them to get out of the way, as he did when he came upon the truckparked on the left hand side of the road seven or eight meters from the place where the accident occurred, andupon the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before goingover the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles,it was because, his attention having been occupied in attempting to go ahead, he did not see the crossing inquestion, nor anything, nor anybody indicating its existence, as he knew nothing about it beforehand. The first andonly warning, which he received of the impending danger, was two short blows from the whistle of the locomotiveimmediately preceding the collision and when the accident had already become inevitable.

In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Companyalone is liable for the accident by reason of its own negligence and that of its employees, for not having employedthe diligence of a good father of a family in the supervision of the said employees in the discharge of their duties.

The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damageswhich the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court asindemnity for damages, is reasonable.

As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the differentitems thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing,have duly been proven at the trial and the sum in question is not excessive, taking into consideration thecircumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is — in thelanguage of the court, which saw her at the trial — "young and beautiful and the big scar, which she has on herforehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fractureof her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into furtherconsideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way ofindemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), theright leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which hewas riding and the defendant's car, which fractured required medical attendance for a considerable period of time.On the day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. Thetrial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, inspite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facialdeformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.1ªv v phi1. ne+

As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja MariaLilius, neither is the same excessive, taking into consideration the fact that the lacerations received by her have leftdeep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficultfor her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the factthat all of this unfavorably and to a great extent affect her matrimonial future.

With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Liliusrelative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity fordamages consisting in the loss of his income as journalist and author as a result of his illness. This question hasimpliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of saidindemnity was denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services inhis business as journalist and author, which services consisted in going over his writings, translating them intoEnglish, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part ofthe work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value ofsaid services nor to the effect that he needed them during her illness and had to employ a translator to act in her


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stead.

The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxoncommon law "consortium" of his wife, that is, "her services, society and conjugal companionship", as a result ofpersonal injuries which she had received from the accident now under consideration.

In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of the CivilMarriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses,contained in articles 44-48 thereof, said as follows:

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations ofthe spouses. The spouses must be faithful to, assist, and support each other. The husband must live with andprotect his wife. The wife must obey and live with her husband and follow him when he changes his domicileor residence, except when he removes to a foreign country. . . .

Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife'sassistance. This assistance comprises the management of the home and the performance of household duties,including the care and education of the children and attention to the husband upon whom primarily devolves theduty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it wasnot difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physicalincapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However,nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civilrights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional andpolitical, many of them spending their time outside the home, engaged in their businesses, industry, profession andwithin a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to anursemaid, to public or private institutions which take charge of young children while their mothers are at work,marriage has ceased to create the presumption that a woman complies with the duties to her husband and children,which the law imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation ofher domestic services must prove such services. In the case under consideration, apart from the services of his wifeSonja Maria Lilius as translator and secretary, the value of which has not been proven, the plaintiff Aleko E. Liliushas not presented any evidence showing the existence of domestic services and their nature, rendered by her priorto the accident, in order that it may serve as a basis in estimating their value.

Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal andvoluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil.,54), it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged torender them had done so before he was injured and that he would be willing to continue rendering them had he notbeen prevented from so doing.

In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company whichhas not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complieswith his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damagessuffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity ofP10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman,is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year oldgirl belonging to a well-to-do family, is not excessive; and (4) that in order that a husband may recover damages fordeprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existenceof such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing byher illness.

The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicatedto them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisionsof section 510 of Act No. 190.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the solemodification that interest of 6 per cent per annum from the date of the appealed judgment until this judgmentbecomes final will be added to the indemnities granted, with the costs of both instances against the appellant. Soordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.



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Manila

FIRST DIVISION

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

TEODORO C. UMALI, petitioner,vs.HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First Instance ofPangasinan and FIDEL H. SAYNES, respondents.

Julia M. Armas for petitioner.

Antonio de los Reyes for private respondent.

ESGUERRA, J.:

Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in Civil Case No.U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali, defendant-appellant", which found thedeath by electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or negligence of thedefendant (Umali) as owner and manager of the Alcala Electric Plant", although the liability of defendant is mitigatedby the contributory negligence of the parents of the boy "in not providing for the proper and delegate supervision andcontrol over their son The dispositive part of the decision reads as follows:

Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant to payto the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel Saynes;the sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in connectionwith the burial of said deceased child, and the further sum of Three Thousand Pesos (P3,000.00) formoral damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total of NineThousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered.

Undisputed facts appearing of record are:

On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan, which started from2:00 o'clock in the afternoon and lasted up to about midnight of the same day. During the storm, thebanana plants standing on an elevated ground along the barrio road in San Pedro Ili of saidmunicipality and near the transmission line of the Alcala Electric Plant were blown down and fell on theelectric wire. As a result, the live electric wire was cut, one end of which was left hanging on the electricpost and the other fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii who waspassing by saw the broken electric wire and so he warned the people in the place not to go near thewire for they might get hurt. He also saw Cipriano Baldomero, a laborer of the Alcala Electric Plant nearthe place and notified him right then and there of the broken line and asked him to fix it, but the lattertold the barrio captain that he could not do it but that he was going to look for the lineman to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 yearsand 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side of theroad, went to the place where the broken line wire was and got in contact with it. The boy waselectrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes that thebroken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric plant.

G.R. No. L-40570 http://www.lawphil.net/judjuris/juri1976/jan1976/gr_40570_1976.html

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Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and manager of theAlcala Electric Plant because the proximate cause of the boy's death electrocution could not be due to anynegligence on his part, but rather to a fortuitous event-the storm that caused the banana plants to fall and cut theelectric line-pointing out the absence of negligence on the part of his employee Cipriano Baldomero who tried tohave the line repaired and the presence of negligence of the parents of the child in allowing him to leave his houseduring that time.

A careful examination of the record convinces Us that a series of negligence on the part of defendants' employees inthe Alcala Electric Plant resulted in the death of the victim by electrocution. First, by the very evidence of thedefendant, there were big and tall banana plants at the place of the incident standing on an elevated ground whichwere about 30 feet high and which were higher than the electric post supporting the electric line, and yet theemployees of the defendant who, with ordinary foresight, could have easily seen that even in case of moderatewinds the electric line would be endangered by banana plants being blown down, did not even take the necessaryprecaution to eliminate that source of danger to the electric line. Second, even after the employees of the AlcalaElectric Plant were already aware of the possible damage the storm of May 14, 1972, could have caused theirelectric lines, thus becoming a possible threat to life and property, they did not cut off from the plant the flow ofelectricity along the lines, an act they could have easily done pending inspection of the wires to see if they had beencut. Third, employee Cipriano Baldomero was negligent on the morning of the incident because even if he wasalready made aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to lifeand property, and that he should have taken the necessary precaution to prevent anybody from approaching the livewire; instead Baldomero left the premises because what was foremost in his mind was the repair of the line,obviously forgetting that if left unattended to it could endanger life and property.

On defendants' argument that the proximate cause of the victim's death could be attributed to the parents'negligence in allowing a child of tender age to go out of the house alone, We could readily see that because of theaforementioned series of negligence on the part of defendants' employees resulting in a live wire lying on thepremises without any visible warning of its lethal character, anybody, even a responsible grown up or not necessarilyan innocent child, could have met the same fate that befell the victim. It may be true, as the lower Court found out,that the contributory negligence of the victim's parents in not properly taking care of the child, which enabled him toleave the house alone on the morning of the incident and go to a nearby place cut wire was very near the house(where victim was living) where the fatal fallen wire electrocuted him, might mitigate respondent's liability, but wecannot agree with petitioner's theory that the parents' negligence constituted the proximate cause of the victim'sdeath because the real proximate cause was the fallen live wire which posed a threat to life and property on thatmorning due to the series of negligence adverted to above committed by defendants' employees and which couldhave killed any other person who might by accident get into contact with it. Stated otherwise, even if the child wasallowed to leave the house unattended due to the parents' negligence, he would not have died that morning where itnot for the cut live wire he accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case) was onlycontributory, the immediate and proximate cause of the injury being the defendants' lack of due care, the plaintiffmay recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by thepetitioner but does not exempt him from liability. Petitioner's liability for injury caused by his employees negligence iswell defined in par. 4, of Article 2180 of the Civil Code, which states:

The owner and manager of an establishment or enterprise are likewise responsible for damagescaused by their employees in the service of the branches in which the latter are employed or on tileoccasion of their functions.

The negligence of the employee is presumed to be the negligence of the employer because the employer issupposed to exercise supervision over the work of the employees. This liability of the employer is primary and direct(Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the employerto raise so that he may escape liability is to prove that he exercised, the diligence of the good father of the family toprevent damage not only in the selection of his employees but also in adequately supervising them over their work.This defense was not adequately proven as found by the trial Court, and We do not find any sufficient reason todeviate from its finding.

Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in this case, either inits appreciation of the evidence on questions of facts or on the interpretation and application of laws governmentquasi-delicts and liabilities emanating therefrom. The inevitable conclusion is that no error amounting to grave abuseof discretion was committed and the decision must be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.


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Costs against petitioner.

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz Palma and Martin, JJ., concur.



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Manila

EN BANC

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

PRECIOLITA V. CORLISS, plaintiff-appellant,vs.THE MANILA RAILROAD CO., defendant-appellant.

Moises C. Nicomedes for plaintiff-appellant.The Government Corporate Counsel for defendant-appellee.

FERNANDO, J.:

Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with reason. Thefuture, bright with promise, looms ahead. One's powers are still to be tested, but one feels ready for whateverchallenge may come his way. There is that heady atmosphere of self-confidence, at times carried to excess. Thetemptation to take risks is there, ever so often, difficult, if not impossible, to resist. There could be then a lesseningof prudence and foresight, qualities usually associated with age. For death seems so remote and contingent anevent. Such is not always the case though, and a slip may be attended with consequences at times unfortunate,even fatal.

Some such thought apparently was in the mind of the lower court when it dismissed the complaint for recovery ofdamages filed by plaintiff-appellant, Preciolita V. Corliss whose husband, the late Ralph W. Corliss, was, at thetender age of twenty-one, the victim of a grim tragedy, when the jeep he was driving collided with a locomotive ofdefendant-appellee Manila Railroad Company, close to midnight on the evening of Feb 21, 1957, at the railroadcrossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed from, thelower court, after summarizing the evidence, concluded that the deceased "in his eagerness to beat, so to speak,the oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he became thevictim of his own miscalculation." 1

The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory proof to thateffect, in its opinion, being lacking. Hence this appeal direct to us, the amount sought in the concept of damagesreaching the sum of P282,065.40. An examination of the evidence of record fails to yield a basis for a reversal of thedecision appealed from. We affirm.

According to the decision appealed from, there is no dispute as to the following: "In December 1956, plaintiff, 19years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police of the Clark AirForce Base; that at the time of the accident, he was driving the fatal jeep; that he was then returning in said jeep,together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at the Base Hospital the next day,

while the soldier sustained serious physical injuries and burns." 2

Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus: "Ronald J. Ennis, awitness of the plaintiff, substantially declared in his deposition, ..., that at the time of the accident, he also awaitingtransportation at the entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that whilethere he saw the jeep coming towards the Base. He said that said jeep slowed down before reaching the crossing,that it made a brief stop but that it did not stop — dead stop. Elaborating, he declared that while it was slowingdown, Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also testified that he couldsee the train coming from the direction of San Fernando and that he heard a warning but that it was not sufficientenough to avoid the accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff, testified that on the night ofFebruary 21, 1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep goingtowards the direction of Clark Field. He stated that he heard the whistle of the locomotive and saw the collision. The


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jeep, which caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast

and heard the tooting of the horn. It did not stop at the railroad crossing, according to him." 4

After which reference was made to the testimony of the main witness for defendant-appellee, Teodorico Capili,"who was at the engine at the time of the mishap," and who "testified that before the locomotive, which had beenpreviously inspected and found to be in good condition approached, the crossing, that is, about 300 meters away, heblew the siren and repeated it in compliance with the regulations until he saw the jeep suddenly spurt and thatalthough the locomotive was running between 20 and 25 kilometers an hour and although he had applied thebrakes, the jeep was caught in the middle of the tracks." 5

1. The above finding as to the non-existence of negligence attributable to defendant-appellee Manila RailroadCompany comes to us encased in the armor of what admittedly appears to be a careful judicial appraisal andscrutiny of the evidence of record. It is thus proof against any attack unless sustained and overwhelming. Not that itis invulnerable, but it is likely to stand firm in the face of even the most formidable barrage.

In the more traditional terminology, the lower court judgment has in its favor the presumption of correctness. It isentitled to great respect. After all, the lower court had the opportunity of weighing carefully what was testified to andapparently did not neglect it. There is no affront to justice then if its finding be accorded acceptance subject ofcourse the contingency of reversal if error or errors, substantial in character, be shown in the conclusion thus arrivedat. It is a fair statement of the governing, principle to say that the appellate function is exhausted when there is foundto be a rational basis for the result reached by the trial court.

As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is the one at issue,the trial court's judgment as to their degree of credence deserves serious consideration by this Court." 6 An earlierexpression of the same view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we find noreason for rejecting the findings of the court below. The questions raised hinge on credibility and it is well-settled thatin the absence of compelling reasons, its determination is best left to the trial judge why had the advantage of

hearing the parties testify and observing their demeanor on the witness stand." 7

In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any arbitrary orabusive conduct on the part of the trial judge in the formulation of the ruling. His conclusion on the matter issufficiently borne out by the evidence presented. We are denied, therefore, the prerogative to disturb that finding,consonant to the time honored tradition of the Tribunal to hold trial judges better situated to make conclusions onquestions of fact'." 8 On this ground alone we can rest the affirmance of the judgment appealed from.lâwphi1. ñet

2. Nor is the result different even if no such presumption were indulged in and the matter examined as if we wereexercising original and not appellate jurisdiction. The sad and deplorable situation in which plaintiff-appellant nowfinds herself, to the contrary notwithstanding we find no reason for reversing the judgment of the lower court.

This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causesdamage to another, there being negligence, is under obligation to pay for the damage done. 9 Unless it could besatisfactorily shown, therefore, that defendant-appellee was guilty of negligence then it could not be held liable. Thecrucial question, therefore, is the existence of negligence.

The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain, formerly applicable in

this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., 11

Manresa was cited to the following effect "'Among the questions most frequently raised and upon which the majorityof cases have been decided with respect to the application of this liability, are those referring to the determination ofthe damage or prejudice, and to the fault or negligence of the person responsible therefor. These are the twoindispensable factors in the obligations under discussion, for without damage or prejudice there can be no liability,and although this element is present no indemnity can be awarded unless arising from some person's fault ornegligence'."

Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and United States v. Barias. 13

Cooley' formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in hiswork on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to observe for the protection of the interestsof another person that degree of care, precaution and vigilance which the circumstance justly demand whereby such

other person suffers injury." There was likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus: "Negligenceis want of the care required by the circumstances. It is a relative or comparative, not an absolute term and itsapplication depends upon the situation of the parties and the degree of care and vigilance which the circumstancesreasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is awant of ordinary care under the circumstances."


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To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of plaintiff-appellee must necessary fail. The facts being what they are, compel the conclusion that the liability sought to befastened on defendant-appellee had not arisen.

3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on the ground thatthere was a failure to appreciate the true situation. Thus the first three assigned errors are factual in character. Thethird assigned error could be summarily disposed of. It would go against the evidence to maintain the view that thewhistle was not sounded and the brakes not applied at a distance of 300 meters before reaching the crossing.

The first two assigned errors would make much of the failure of the lower court to hold that the crossing bars nothaving been put down and there being no guard at the gate-house, there still was a duty on the part of Corliss tostop his jeep to avoid a collision and that Teodorico Capili, who drove the engine, was not qualified to do so at thetime of the accident. For one cannot just single out circumstance and then confidently assign to it decisive weightand significance. Considered separately, neither of the two above errors assigned would call for a judgment differentin character. Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. Thequantum of proof required still not been met. The alleged errors fail of their said effect. The case for plaintiff-appellant, such as it had not been improved. There is no justification for reversing the judgment of the lower court.

It cannot be stressed too much that the decisive considerations are too variable, too dependent in the lid analysisupon a common sense estimate of the situation as it presented itself to the parties for us to be able to say that thisor that element having been isolated, negligence is shown. The factors that enter the judgment are too many anddiverse for us to imprison them in a formula sufficient of itself to yield the correct answer to the multi-facetedproblems the question of negligence poses. Every case must be dependent on its facts. The circumstancesindicative of lack of due care must be judged in the light of what could reasonably be expected of the parties. If theobjective standard of prudence be met, then negligence is ruled out.

In this particular case, it would be to show less than fidelity to the controlling facts to impute negligence todefendant-appellee. The first three errors assigned certainly do not call for that conclusion.

4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant apparently had in mindthis portion of the opinion of the lower court: "The weight of authorities is to the effect that a railroad track is in itselfa warning or a signal of danger to those who go upon it, and that those who, for reasons of their own, ignore suchwarning, do so at their own risk and responsibility. Corliss Jr., who undoubtedly had crossed the checkpointfrequently, if not daily, must have known that locomotive engines and trains usually pass at that particular crossingwhere the accident had taken place." 15

Her assignment of error, however, would single out not the above excerpt from the decision appealed from butwhat to her is the apparent reliance of the lower court on Mestres v. Manila Electric Railroad & Light Co. 16 andUnited States v. Manlabat & Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A personin control of an automobile who crosses a railroad, even at a regular road crossing, and who does not exercise thatprecaution and that control over it as to be able to stop the same almost immediately upon the appearance of atrain, is guilty of criminal negligence, providing a collision occurs and injury results. Considering the purposes andthe general methods adopted for the management of railroads and railroad trains, we think it is incumbent upon oneapproaching a railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroadcrossing cautiously and carefully. He should look and listen and do everything that a reasonably prudent man woulddo before he attempts to cross the track." The Mestres doctrine in a suit arising from a collision between anautomobile and a street car is substantially similar. Thus: "It may be said, however, that, where a person is nearing astreet crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who canmost readily adjust himself to the exigencies of the case, and where such person can do so more readily, themotorman has a right to presume that such duty will be performed."

It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent rigid and

inflexible doctrine thus set forth in the two above cases evidenced by Lilius v. Manila Railroad Co., 18 the controllingfacts of which, however, are easily distinguishable from what had been correctly ascertained in the present case.Such a deviation from the earlier principle announced is not only true of this jurisdiction but also of the UnitedStates.

This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the following to say:"Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway v. Goodman,to 'lay down a standard once for all,' which would require an automobile driver approaching a railroad crossing withan obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming to get out ofthe car. The basic idea behind this is sound enough: it is by no means proper care to cross a railroad track without


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taking reasonable precautions against a train, and normally such precautions will require looking, hearing, and a

stop, or at least slow speed, where the view is obstructed." 19

Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where, according to Prosser, it beingshown that "the only effective stop must be made upon the railway tracks themselves, in a position of obligationdanger, the court disregarded any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommonprecaution, likely to be futile and sometimes even dangerous,' and saying that the driver need not always stop.'Illustrations such as these,' said Mr. Justice Cardozo 'bear witness to the need for caution in framing standards ofbehavior that amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected to tests or

regulations that are fitting for the commonplace or normal." 21

What Justice Cardozo announced would merely emphasize what was set forth earlier that each and every, case onquestions of negligence is to be decided in accordance with the peculiar circumstances that present themselves.There can be no hard and fast rule. There must be that observance of that degree of care, precaution, and vigilancewhich the situation demands. Thus defendant-appellee acted. It is undeniable then that no negligence can rightfullybe imputed to it.

What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated on thetestimonies of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity with the setup of thecheckpoint, the existence of the tracks; and on the further fact that the locomotive had blown its siren or whistle,which was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently warned in advance of the oncomingtrain that it was incumbent upon him to avoid a possible accident — and this consisted simply in stopping his vehiclebefore the crossing and allowing the train to move on. A prudent man under similar circumstances would have actedin this manner. This, unfortunately, Corliss, Jr. failed to do." 22

WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is affirmed. Withoutpronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano, Teehankee and Barredo,JJ., concur.

Footnotes

1Decision, Record on Appeal, P. 49.

2Ibid, pp. 45-46.

3Ibid, p. 46.

4Ibid, p. 47.

5Ibid.

6Medina v. Collector of Internal Revenue, L-15113, January 28, 1961. To the same effect is the ruling inGutierrez v. Villegas, L-17117, July 31, 1963.

7L-7969, March 30, 1960.

8Arrieta v. National Rice & Corn Corp., L-15645, January 31, 1964. This case was cited with approval inPerez v. Araneta, L-18414, July 15, 1968.

9Article 2176.

10Article 1902.

1155 Phil. 517, 523 (1930).

1223 Phil. 212, 223 (1912). This case was cited with approval in U.S. v. Reodique (32 Phil. 418 [1915]). TheReodique case in turn was relied upon in People v. Nocum, (77 Phil 1018 [1947]).

1323 Phil. 434 (1912).


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1435 Pac. 549 (1894). Negligence as a concept has a well-understood meaning in both American andSpanish law. It may not be amiss to state that according to the prevailing American doctrine, there is anobjective test for negligence which according to 2 Harper and James in their treatise on The Law of Torts(1956), citing the Restatement of Torts in "conduct ... which falls below the standard established by law for theprotection of others against unreasonable risk of harm." (At p. 896). Prosser on Torts, the third edition ofwhich was published in 1964, is of the same mind. (At p. 149). Terry and Edgerton viewed the matter similarly.Cf. Terry, Negligence, 29 Harv. Law Rev. 40 (1915); Edgerton, Negligence, Inadvertece and Indifference, 39Harv. Law Rev. 849 (1926). The above authors show the influence of Holmes in their definitions of the Law ofNegligence. According to Holmes in his classic, The Common Law (1881): "Thus the standard represents thegeneral level of moral judgment of the community, what it feels ought ordinarily to be done, and notnecessarily what is ordinarily done, although in practice the two would very often come to the same thing." (Atp. 110).

15Decision, Record on Appeal, p. 50.

1632 Phil. 496 (1915).

1728 Phil. 560, 565 (1914).

1859 Phil. 758 (1934). Cf. however Aguilar v. People (71 Phil. 426), a 1941 decision, where there is areiteration of the principle "that a person in control of an automobile who approaches a railroad track anddesires to cross it is bound to take that precaution and that control over the car as to be able to stop it almostimmediately upon the appearance of the train, ...." (At P. 428). This decision cited U.S. v. Mananquil, 42 Phil.90 (1921); U.S. v. Manabat, 28 Phil 560 (1914); and Yamada v. Manila Railroad Co., 33 Phil. 8 (1915).

19Prosser, The Law of Torts, 3rd ed., 210 (1964)

20292 US 98.

21Prosser, op cit., 210-211 (1964).

22Decision, Record on Appeal, pp. 50-51.



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Manila

EN BANC

G.R. No. L-32611 November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,vs.PHILIPPINE MOTORS CORPORATION, defendant-appellant.

Gibbs and McDonough for appellant.Benj. S. Ohnick for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co., Inc., for thepurpose of recovering from the Philippine Motors Corporation the sum of P11,350, with interest and costs. Uponhearing the cause the trial court gave judgment in favor of the plaintiff to recover of the defendant the sum ofP9,850, with interest at 6 per centum per annum from March 24,1927, the date of the filing of the complaint, untilsatisfaction of the judgment, with costs. From this judgment the defendant appealed.

The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are hereconcerned, H.D. Cranston was the representative of the plaintiff in the City of Manila. At the same time the plaintiffwas the registered owner of the motor schooner Gwendoline, which was used in the fishing trade in the PhilippineIslands. In January, 1925, Cranston decided, if practicable, to have the engine on the Gwendoline changed from agasoline consumer to a crude oil burner, expecting thereby to effect economy in the cost of running the boat. Hetherefore made known his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of saidcompany, that he might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin Street,in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had aconference with C.E. Quest, its manager, who agreed to do the job, with the understanding that payment should bemade upon completion of the work.

The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under itscharter, it had authority to deal in all sorts of machinery engines and motors, as well as to build, operate, buy andsell the same and the equipment therof. Quest, as general manager, had full charge of the corporations in all itsbranches.

As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it lay at anchorin the Pasig River, and the work of effecting the change in the engine was begun and conducted under thesupervision of Quest, chiefly by a mechanic whom Quest took with him to the boat. In this work Quest had theassistance of the members of the crew of the Gwendoline, who had been directed by Cranston to place themselvesunder Quest's directions.

Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary toaccomplish the end in view was to install a new carburetor, and a Zenith carburetor was chosen as the one mostadapted to the purpose. After this appliance had been installed, the engine was tried with gasoline as a fuel,supplied from the tank already in use. The result of this experiment was satisfactory. The next problem was tointroduce into the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. For this purpose atemporary tank to contain the mixture was placed on deck above and at a short distance from the compartmentcovering the engine. This tank was connected with the carburetor by a piece of tubing, which was apparently notwell fitted at the point where it was connected with the tank. Owing to this fact the fuel mixture leaked from the tankand dripped sown into the engine compartment. The new fuel line and that already in use between the gasoline tank

G.R. No. L-32611 http://www.lawphil.net/judjuris/juri1930/nov1930/gr_l-32611_1930.html

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and carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose ofthis arrangement was to enable the operator to start the engine on gasoline and then, after the engine had beenoperating for a few moments, to switch to the new fuel supply. lawphil. net

In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetorwas flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to thefloor. This fact was called to Quest's attention, but he appeared to think lightly of the matter and said that, when theengine had gotten to running well, the flooding would disappear.

After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run atabout 5 p.m. or a little later, on the evening of January 30,1925. The first part of the course was covered without anyuntoward development, other than he fact that the engine stopped a few times, owing no doubt to the use of animproper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupiedhimself with making distillate, with a view to ascertaining what proportion of the two elements would give best resultsin the engine.

As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, andconnection again had to be made with the gasoline line to get a new start. After this had been done the mechanic, orengineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinderchamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent partswere covered with a mass of flames, which the members of the crew were unable to subdue. They were thereforecompelled, as the fire spread, to take to a boat, and their escape was safely effected, but the Gwendoline wasreduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of theboat, before the accident occured, as the court found, was P10,000.

A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence andlack of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great anelevation from the carburetor, with the result that when the fuel line was opened, the hydrostatic pressure in thecarburetor was greater than the delicate parts of the carburetor could sustain. This was no doubt the cause of theflooding of the carburetor; and the result was that; when the back fire occurred, the external parts of the carburetor,already saturated with gasoline, burst into flames, whence the fire was quickly communicated to the highlyinflammable material near-by. Ordinarily a back fire from an engine would not be followed by any disaster, but in thiscase the leak along the pipe line and the flooding of the carburetor had created a dangerous situation, which aprudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may havebeen due either to the fact that the spark was too advanced or the fuel improperly mixed.

In this connection it must be remembered that when a person holds himself out as being competent to do thingsrequiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarilyskilled in the particular work which he attempts to do. The proof shows that Quest had had ample experience infixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similarwork on boats. For this reason, possibly the dripping of the mixture form the tank on deck and the flooding of thecarburetor did not convey to his mind an adequate impression of the danger of fire. But a person skilled in thatparticular sort of work would, we think have been sufficiently warned from those circumstances to cause him to takegreater and adequate precautions against the danger. In other words Quest did not use the skill that would havebeen exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, onthe part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. Theburning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense anunavoidable accident. It would not have occured but for Quest's carelessness or lack of skill. The test of liability isnot whether the injury was accidental in a sense, but whether Quest was free from blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence ineffecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exactmanner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire in notso inscrutable as to enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline duringthe experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, theburden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not dueto the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of thenavigation of the boat on this trial run. His employment contemplated the installation of new parts in the engine only,and it seems rather strained to hold that the defendant corporation had thereby become bailee of the boat. As a ruleworkmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it to hisshop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their contract.


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The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed. As aconsequence of such possession and special property, the bailee is given a lien for his compensation. These ideasseem to be incompatible with the situation now under consideration. But though defendant cannot be held liable inthe supposition that the burden of proof had not been sustained by it in disproving the negligence of its manager, weare nevertheless of the opinion that the proof shows by a clear preponderance that the accident to the Gwendolineand the damages resulting therefrom are chargeable to the negligence or lack of skill of Quest.

This action was instituted about two years after the accident in question had occured, and after Quest had ceased tobe manager of the defendant corporation and had gone back to the United States. Upon these facts, the defendantbases the contention that the action should be considered stale. It is sufficient reply to say that the action wasbrought within the period limited by the statute of limitations and the situation is not one where the defense of lachescan be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest,must be affirmed; and it is so ordered, with costs against the appellant.

Avanceña, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.



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Manila

EN BANC

G.R. No. L-12191 October 14, 1918

JOSE CANGCO, plaintiff-appellant,vs.MANILA RAILROAD CO., defendant-appellee.

Ramon Sotelo for appellant.Kincaid & Hartigan for appellee.

FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment ofManila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo,in the province of Rizal, which is located upon the line of the defendant railroad company; and in coming daily bytrain to the company's office in the city of Manila where he worked, he used a pass, supplied by the company, whichentitled him to ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, theplaintiff arose from his seat in the second class-car where he was riding and, making, his exit through the door, tookhis position upon the steps of the coach, seizing the upright guardrail with his right hand for support.

On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins torise with a moderate gradient some distance away from the company's office and extends along in front of saidoffice for a distance sufficient to cover the length of several coaches. As the train slowed down another passenger,named Emilio Zuñiga, also an employee of the railroad company, got off the same car, alighting safely at the pointwhere the platform begins to rise from the level of the ground. When the train had proceeded a little farther theplaintiff Jose Cangco stepped off also, but one or both of his feet came in contact with a sack of watermelons withthe result that his feet slipped from under him and he fell violently on the platform. His body at once rolled from theplatform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears thatafter the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by asingle light located some distance away, objects on the platform where the accident occurred were difficult to discernespecially to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the factthat it was the customary season for harvesting these melons and a large lot had been brought to the station for theshipment to the market. They were contained in numerous sacks which has been piled on the platform in a row oneupon another. The testimony shows that this row of sacks was so placed of melons and the edge of platform; and itis clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at the momenthe stepped upon the platform. His statement that he failed to see these objects in the darkness is readily to becredited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which hehad received were very serious. He was therefore brought at once to a certain hospital in the city of Manila where anexamination was made and his arm was amputated. The result of this operation was unsatisfactory, and the plaintiffwas then carried to another hospital where a second operation was performed and the member was againamputated higher up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in theform of medical and surgical fees and for other expenses in connection with the process of his curation.

G.R. No. L-12191 http://www.lawphil.net/judjuris/juri1918/oct1918/gr_l-12191_1918.html

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Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recoverdamages of the defendant company, founding his action upon the negligence of the servants and employees of thedefendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to thesecurity of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor,the trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that,although negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placedas to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use duecaution in alighting from the coach and was therefore precluded form recovering. Judgment was accordingly enteredin favor of the defendant company, and the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks onthe platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train;and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarilyfollows that the defendant company is liable for the damage thereby occasioned unless recovery is barred by theplaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions ofliability, to-wit, the primary responsibility of the defendant company and the contributory negligence of the plaintiffshould be separately examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that theobligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contract byreason of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct andimmediate, differing essentially, in legal viewpoint from that presumptive responsibility for the negligence of itsservants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care intheir selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, butonly to extra-contractual obligations — or to use the technical form of expression, that article relates only to culpaaquiliana and not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out thisdistinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and PacificCo. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference between "culpa,substantive and independent, which of itself constitutes the source of an obligation between persons not formerlyconnected by any legal tie" and culpa considered as an accident in the performance of an obligation already existing. . . ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903of the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be thosenot growing out of pre-existing duties of the parties to one another. But where relations already formed giverise to duties, whether springing from contract or quasi-contract, then breaches of those duties are subject toarticle 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposedupon employers with respect to damages occasioned by the negligence of their employees to persons to whom theyare not bound by contract, is not based, as in the English Common Law, upon the principle of respondeat superior— if it were, the master would be liable in every case and unconditionally — but upon the principle announced inarticle 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another,the obligation of making good the damage caused. One who places a powerful automobile in the hands of a servantwhom he knows to be ignorant of the method of managing such a vehicle, is himself guilty of an act of negligencewhich makes him liable for all the consequences of his imprudence. The obligation to make good the damage arisesat the very instant that the unskillful servant, while acting within the scope of his employment causes the injury. Theliability of the master is personal and direct. But, if the master has not been guilty of any negligence whatever in theselection and direction of the servant, he is not liable for the acts of the latter, whatever done within the scope of hisemployment or not, if the damage done by the servant does not amount to a breach of the contract between themaster and the person injured.

It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves themaster from liability for the latter's acts — on the contrary, that proof shows that the responsibility has never existed.As Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a voluntary actor omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. A


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master who exercises all possible care in the selection of his servant, taking into consideration the qualificationsthey should possess for the discharge of the duties which it is his purpose to confide to them, and directs them withequal diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and heincurs no liability whatever if, by reason of the negligence of his servants, even within the scope of theiremployment, such third person suffer damage. True it is that under article 1903 of the Civil Code the law creates apresumption that he has been negligent in the selection or direction of his servant, but the presumption is rebuttableand yield to proof of due care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held thatthese articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto RicoReports, 215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30Phil. rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant torespond for the damage caused by the carelessness of his employee while acting within the scope of hisemployment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant oremployee there instantly arises a presumption of law that there was negligence on the part of the master oremployer either in selection of the servant or employee, or in supervision over him after the selection, or both;and (2) that that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. Itfollows necessarily that if the employer shows to the satisfaction of the court that in selection and supervisionhe has exercised the care and diligence of a good father of a family, the presumption is overcome and he isrelieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of hisservant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast tothe American doctrine that, in relations with strangers, the negligence of the servant in conclusively thenegligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based uponnegligence, it is necessary that there shall have been some fault attributable to the defendant personally, and thatthe last paragraph of article 1903 merely establishes a rebuttable presumption, is in complete accord with theauthoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed byreason of the breach of the duties inherent in the special relations of authority or superiority existing between theperson called upon to repair the damage and the one who, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants oragents, when such acts or omissions cause damages which amount to the breach of a contact, is not based upon amere presumption of the master's negligence in their selection or control, and proof of exercise of the utmostdiligence and care in this regard does not relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has itssource in the breach or omission of those mutual duties which civilized society imposes upon it members, or whicharise from these relations, other than contractual, of certain members of society to others, generally embraced in theconcept of status. The legal rights of each member of society constitute the measure of the corresponding legalduties, mainly negative in character, which the existence of those rights imposes upon all other members of society.The breach of these general duties whether due to willful intent or to mere inattention, if productive of injury, giverise to an obligation to indemnify the injured party. The fundamental distinction between obligations of this characterand those which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongfulor negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculumexists independently of the breach of the voluntary duty assumed by the parties when entering into the contractualrelation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent forthe legislature to elect — and our Legislature has so elected — whom such an obligation is imposed is morallyculpable, or, on the contrary, for reasons of public policy, to extend that liability, without regard to the lack of moralculpability, so as to include responsibility for the negligence of those person who acts or mission are imputable, by alegal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislaturewhich adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined exceptions —to cases in which moral culpability can be directly imputed to the persons to be charged. This moral responsibilitymay consist in having failed to exercise due care in the selection and control of one's agents or servants, or in thecontrol of persons who, by reason of their status, occupy a position of dependency with respect to the person made


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liable for their conduct.

The position of a natural or juridical person who has undertaken by contract to render service to another, is whollydifferent from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's cause ofaction depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence — ifhe does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefitof plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff tospecify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of thedefendant, or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie towarrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume theburden of proof of its existence, as the only fact upon which his action is based; while on the contrary, in acase of negligence which presupposes the existence of a contractual obligation, if the creditor shows that itexists and that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71[1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to thenegligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach, it isobvious that proof on the part of defendant that the negligence or omission of his servants or agents caused thebreach of the contract would not constitute a defense to the action. If the negligence of servants or agents could beinvoked as a means of discharging the liability arising from contract, the anomalous result would be that personacting through the medium of agents or servants in the performance of their contracts, would be in a better positionthan those acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the bailee,by a personal negligent act causes its destruction, he is unquestionably liable. Would it be logical to free him fromhis liability for the breach of his contract, which involves the duty to exercise due care in the preservation of thewatch, if he shows that it was his servant whose negligence caused the injury? If such a theory could be accepted,juridical persons would enjoy practically complete immunity from damages arising from the breach of their contractsif caused by negligent acts as such juridical persons can of necessity only act through agents or servants, and itwould no doubt be true in most instances that reasonable care had been taken in selection and direction of suchservants. If one delivers securities to a banking corporation as collateral, and they are lost by reason of thenegligence of some clerk employed by the bank, would it be just and reasonable to permit the bank to relieve itselfof liability for the breach of its contract to return the collateral upon the payment of the debt by proving that due carehad been exercised in the selection and direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident tothe performance of a contract has frequently been recognized by the supreme court of Spain. (Sentencias of June27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared thatplaintiff's action arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902 of theCivil Code as a defense. The Spanish Supreme Court rejected defendant's contention, saying:

These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such asthose to which article 1902 of the Civil Code relates, but of damages caused by the defendant's failure tocarry out the undertakings imposed by the contracts . . . .

A brief review of the earlier decision of this court involving the liability of employers for damage done by thenegligent acts of their servants will show that in no case has the court ever decided that the negligence of thedefendant's servants has been held to constitute a defense to an action for damages for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for thedamages caused by the negligence of his driver. In that case the court commented on the fact that no evidence hadbeen adduced in the trial court that the defendant had been negligent in the employment of the driver, or that he hadany knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued thedefendant for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by thenegligence of defendant's servants in the course of the performance of a contract of towage. The court held, citingManresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and theplaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to the case."

In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for thepersonal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in whichdefendant was riding at the time. The court found that the damages were caused by the negligence of the driver of


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the automobile, but held that the master was not liable, although he was present at the time, saying:

. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonableopportunity to observe them and to direct the driver to desist therefrom. . . . The act complained of must becontinued in the presence of the owner for such length of time that the owner by his acquiescence, makes thedriver's acts his own.

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true thatthe court rested its conclusion as to the liability of the defendant upon article 1903, although the facts disclosed thatthe injury complaint of by plaintiff constituted a breach of the duty to him arising out of the contract of transportation.The express ground of the decision in this case was that article 1903, in dealing with the liability of a master for thenegligent acts of his servants "makes the distinction between private individuals and public enterprise;" that as to thelatter the law creates a rebuttable presumption of negligence in the selection or direction of servants; and that in theparticular case the presumption of negligence had not been overcome.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tortrather than as based upon the breach of the contract of carriage, and an examination of the pleadings and of thebriefs shows that the questions of law were in fact discussed upon this theory. Viewed from the standpoint of thedefendant the practical result must have been the same in any event. The proof disclosed beyond doubt that thedefendant's servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. Italso affirmatively appeared that defendant had been guilty of negligence in its failure to exercise proper discretion inthe direction of the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach ofthe duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp.29 and 69) whether negligence occurs an incident in the course of the performance of a contractual undertaking orits itself the source of an extra-contractual undertaking obligation, its essential characteristics are identical. There isalways an act or omission productive of damage due to carelessness or inattention on the part of the defendant.Consequently, when the court holds that a defendant is liable in damages for having failed to exercise due care,either directly, or in failing to exercise proper care in the selection and direction of his servants, the practical result isidentical in either case. Therefore, it follows that it is not to be inferred, because the court held in the Yamada casethat defendant was liable for the damages negligently caused by its servants to a person to whom it was bound bycontract, and made reference to the fact that the defendant was negligent in the selection and control of its servants,that in such a case the court would have held that it would have been a good defense to the action, if presentedsquarely upon the theory of the breach of the contract, for defendant to have proved that it did in fact exercise carein the selection and control of the servant.

The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual andextra-contractual obligations. The field of noncontractual obligation is much more broader than that of contractualobligations, comprising, as it does, the whole extent of juridical human relations. These two fields, figurativelyspeaking, concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve himfrom extra-contractual liability to such person. When such a contractual relation exists the obligor may break thecontract under such conditions that the same act which constitutes the source of an extra-contractual obligation hadno contract existed between the parties.

The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and toprovide safe means of entering and leaving its trains (civil code, article 1258). That duty, being contractual, wasdirect and immediate, and its non-performance could not be excused by proof that the fault was morally imputable todefendant's servants.

The railroad company's defense involves the assumption that even granting that the negligent conduct of itsservants in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safemeans of approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was hisown contributory negligence in failing to wait until the train had come to a complete stop before alighting. Under thedoctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by plaintiff'sown negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely contributed tohis injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in fact guiltyof negligence.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injurysuffered by him could not have occurred. Defendant contends, and cites many authorities in support of thecontention, that it is negligence per se for a passenger to alight from a moving train. We are not disposed tosubscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is atvariance with the experience of every-day life. In this particular instance, that the train was barely moving whenplaintiff alighted is shown conclusively by the fact that it came to stop within six meters from the place where he


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stepped from it. Thousands of person alight from trains under these conditions every day of the year, and sustain noinjury where the company has kept its platform free from dangerous obstructions. There is no reason to believe thatplaintiff would have suffered any injury whatever in alighting as he did had it not been for defendant's negligentfailure to perform its duty to provide a safe alighting place.

We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work onNegligence (vol. 3, sec. 3010) as follows:

The test by which to determine whether the passenger has been guilty of negligence in attempting to alightfrom a moving railway train, is that of ordinary or reasonable care. It is to be considered whether an ordinarilyprudent person, of the age, sex and condition of the passenger, would have acted as the passenger actedunder the circumstances disclosed by the evidence. This care has been defined to be, not the care which mayor should be used by the prudent man generally, but the care which a man of ordinary prudence would useunder similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we maysay that the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he alightedfrom the train which would have admonished a person of average prudence that to get off the train under theconditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so todesist was contributory negligence.1awph! l. net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect thatplaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly thecondition of the platform and while the train was yet slowly moving. In considering the situation thus presented, itshould not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was causedby the sacks of melons piled on the platform existed; and as the defendant was bound by reason of its duty as apublic carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, inthe absence of some circumstance to warn him to the contrary, that the platform was clear. The place, as we havealready stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the defendant in theperformance of a duty owing by it to the plaintiff; for if it were by any possibility concede that it had right to pile thesesacks in the path of alighting passengers, the placing of them adequately so that their presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the followingcircumstances are to be noted: The company's platform was constructed upon a level higher than that of theroadbed and the surrounding ground. The distance from the steps of the car to the spot where the alightingpassenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to steppingoff. The nature of the platform, constructed as it was of cement material, also assured to the passenger a stable andeven surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of young manhood,and it was by no means so risky for him to get off while the train was yet moving as the same act would have beenin an aged or feeble person. In determining the question of contributory negligence in performing such act — that isto say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the passengerare circumstances necessarily affecting the safety of the passenger, and should be considered. Women, it has beenobserved, as a general rule are less capable than men of alighting with safety under such conditions, as the natureof their wearing apparel obstructs the free movement of the limbs. Again, it may be noted that the place wasperfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this station. There could,therefore, be no uncertainty in his mind with regard either to the length of the step which he was required to take orthe character of the platform where he was alighting. Our conclusion is that the conduct of the plaintiff in undertakingto alight while the train was yet slightly under way was not characterized by imprudence and that therefore he wasnot guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, andthat the injuries he has suffered have permanently disabled him from continuing that employment. Defendant hasnot shown that any other gainful occupation is open to plaintiff. His expectancy of life, according to the standardmortality tables, is approximately thirty-three years. We are of the opinion that a fair compensation for the damagesuffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to recover of defendantthe additional sum of P790.25 for medical attention, hospital services, and other incidental expenditures connectedwith the treatment of his injuries.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and forthe costs of both instances. So ordered.

Arellano, C.J., Torres, Street and Avanceña, JJ., concur.


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Separate Opinions

MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full accord, namely, "It may be admitted that had plaintiffwaited until the train had come to a full stop before alighting, the particular injury suffered by him could not haveoccurred." With the general rule relative to a passenger's contributory negligence, we are likewise in full accord,namely, "An attempt to alight from a moving train is negligence per se." Adding these two points together, should beabsolved from the complaint, and judgment affirmed.

Johnson, J., concur.



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Manila

SECOND DIVISION

G.R. No. 77679 September 30, 1987

VICENTE VERGARA, petitioner,vs.THE COURT OF APPEALS and AMADEO AZARCON, respondents.

R E S O L U T I O N

PADILLA, J.:

An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by private respondent againstpetitioner. The action arose from a vehicular accident that occurred on 5 August 1979 in Gapan, Nueva Ecija, whenMartin Belmonte, while driving a cargo truck belonging to petitioner, rammed "head-on" the store-residence of theprivate respondent, causing damages thereto which were inventoried and assessed at P53,024.22.

In his answer to the complaint, the petitioner alleged principally: "that his driver Martin Belmonte operated said cargotruck in a very diligent (and) careful manner; that the steering wheel refused to respond to his effort and as a resultof a blown-out tire and despite application of his brakes, the said cargo truck hit the store-residence of plaintiff(private respondent) and that the said accident was an act of God for which he cannot be held liable." 1

Petitioner also filed a third party complaint against Travellers Insurance and Surety Corporation, alleging that saidcargo truck involved in the vehicular accident, belonging to the petitioner, was insured by the third party defendantinsurance company. Petitioner asked that the latter be ordered to pay him whatever amount he may be ordered bythe court to pay to the private respondent.

The trial court rendered judgment in favor of private respondent. Upon appeal to the Court of Appeals, the lattercourt affirmed in toto the decision of the trial court, which ordered Petitioner to pay, jointly and severally withTravellers Insurance and Surety Corporation, to the private, respondent the following: (a) P53,024.22 as actualdamages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) the sum of P5,000.00for attorney's fees and the costs. On the third party complaint, the insurance company was sentenced to pay to thepetitioner the following: (a) P50,000.00 for third party liability under its comprehensive accident insurance policy; and(b) P3,000.00 for and as attorney's fees.

Hence, this petition for review on certiorari.

Petitioner's contention that the respondent court erred in finding him guilty of fault or negligence is not tenable. Itwas established by competent evidence that the requisites of a quasi-delict are present in the case at bar. Theserequisites are: (1) damages to the plaintiff; (2) negligence, by act or omission, of which defendant, or some personfor whose acts he must respond, was guilty; and (3) the connection of cause and effect between such negligenceand the damages.

It is undisputed that private respondent suffered damages as a result of an act or omission of petitioner. The issue ofwhether or not this act or omission can be considered as a "negligent" act or omission was passed upon by the trialcourt. The findings of said court, affirmed by the respondent court, which we are not prepared to now disturb, showthat the fact of occurrence of the "vehicular accident" was sufficiently established by the policy report and thetestimony of Patrolman Masiclat. And the fact of negligence may be deduced from the surrounding circumstancesthereof. According to the police report, "the cargo truck was travelling on the right side of the road going to Manilaand then it crossed to the center line and went to the left side of the highway; it then bumped a tricycle; and then

G.R. No. 77679 http://www.lawphil.net/judjuris/juri1987/sep1987/gr_77679_1987.html

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another bicycle; and then said cargo truck rammed the store warehouse of the plaintiff." 2

According to the driver of the cargo truck, he applied the brakes but the latter did not work due to mechanical defect.Contrary to the claim of the petitioner, a mishap caused by defective brakes can not be consideration as fortuitous incharacter. Certainly, the defects were curable and the accident preventable.

Furthermore, the petitioner failed to adduce any evidence to overcome the disputable presumption of negligence onhis part in the selection and supervision of his driver.

Based on the foregoing finding by the respondent Court that there was negligence on the part of the petitioner, thepetitioner's contention that the respondent court erred in awarding private respondent actual, moral and exemplarydamages as well as attorney's fees and costs, is untenable.

ACCORDINGLY, the petition is DENIED.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

Footnotes

1 Rollo, p. 26.

2 Rollo, p. 30.


G.R. No. 77679 http://www.lawphil.net/judjuris/juri1987/sep1987/gr_77679_1987.html

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Manila

SECOND DIVISION

G.R. No. L-44748 August 29, 1986

RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI). petitioner,vs.COURT OF APPEALS and LORETO DIONELA, respondents.

O. Pythogoras Oliver for respondents.

PARAS, J.:

Before Us, is a Petition for Review by certiorari of the decision of the Court of Appeals, modifying the decision of thetrial court in a civil case for recovery of damages against petitioner corporation by reducing the award to privaterespondent Loreto Dionela of moral damages from P40,000 to Pl5,000, and attorney's fees from P3,000 to P2,000.

The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to theoffended party, Loreto Dionela, reading as follows:

176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66 LORETO DIONELA CABANGAN LEGASPICITY

WIRE ARRIVAL OF CHECK FER

LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECK-PER

115 PM

SA IYO WALANG PAKINABANG DUMATING KA DIYAN-WALA-KANG PADALA DITO KAHIT BULBULMO

(p. 19, Annex "A")

Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram sent to him not only woundedhis feelings but also caused him undue embarrassment and affected adversely his business as well because otherpeople have come to know of said defamatory words. Defendant corporation as a defense, alleges that theadditional words in Tagalog was a private joke between the sending and receiving operators and that they were notaddressed to or intended for plaintiff and therefore did not form part of the telegram and that the Tagalog words arenot defamatory. The telegram sent through its facilities was received in its station at Legaspi City. Nobody other thanthe operator manned the teletype machine which automatically receives telegrams being transmitted. The saidtelegram was detached from the machine and placed inside a sealed envelope and delivered to plaintiff, obviouslyas is. The additional words in Tagalog were never noticed and were included in the telegram when delivered.

The trial court in finding for the plaintiff ruled as follows:

There is no question that the additional words in Tagalog are libelous. They clearly impute a vice ordefect of the plaintiff. Whether or not they were intended for the plaintiff, the effect on the plaintiff is thesame. Any person reading the additional words in Tagalog will naturally think that they refer to theaddressee, the plaintiff. There is no indication from the face of the telegram that the additional words inTagalog were sent as a private joke between the operators of the defendant.

G.R. No. L-44748 http://www.lawphil.net/judjuris/juri1986/aug1986/gr_44748_1986.html

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The defendant is sued directly not as an employer. The business of the defendant is to transmittelegrams. It will open the door to frauds and allow the defendant to act with impunity if it can escapeliability by the simple expedient of showing that its employees acted beyond the scope of their assignedtasks.

The liability of the defendant is predicated not only on Article 33 of the Civil Code of the Philippines buton the following articles of said Code:

ART. 19.- Every person must, in the exercise of his rights and in the performance of his duties, act withjustice, give everyone his due, and observe honesty and good faith.

ART. 20.-Every person who, contrary to law, wilfully or negligently causes damage to another, shallindemnify the latter for the same.

There is sufficient publication of the libelous Tagalog words. The office file of the defendant containingcopies of telegrams received are open and held together only by a metal fastener. Moreover, they areopen to view and inspection by third parties.

It follows that the plaintiff is entitled to damages and attorney's fees. The plaintiff is a businessman. Thelibelous Tagalog words must have affected his business and social standing in the community. TheCourt fixes the amount of P40,000.00 as the reasonable amount of moral damages and the amount ofP3,000.00 as attorney's fee which the defendant should pay the plaintiff. (pp. 15-16, Record on Appeal)

The respondent appellate court in its assailed decision confirming the aforegoing findings of the lower court stated:

The proximate cause, therefore, resulting in injury to appellee, was the failure of the appellant to takethe necessary or precautionary steps to avoid the occurrence of the humiliating incident nowcomplained of. The company had not imposed any safeguard against such eventualities and this voidin its operating procedure does not speak well of its concern for their clientele's interests. Negligencehere is very patent. This negligence is imputable to appellant and not to its employees.

The claim that there was no publication of the libelous words in Tagalog is also without merit. The factthat a carbon copy of the telegram was filed among other telegrams and left to hang for the public tosee, open for inspection by a third party is sufficient publication. It would have been otherwise perhapshad the telegram been placed and kept in a secured place where no one may have had a chance toread it without appellee's permission.

The additional Tagalog words at the bottom of the telegram are, as correctly found by the lower court,libelous per se, and from which malice may be presumed in the absence of any showing of goodintention and justifiable motive on the part of the appellant. The law implies damages in this instance(Quemel vs. Court of Appeals, L-22794, January 16, 1968; 22 SCRA 44). The award of P40,000.00 asmoral damages is hereby reduced to P15,000.00 and for attorney's fees the amount of P2,000.00 isawarded. (pp. 22-23, record)

After a motion for reconsideration was denied by the appellate court, petitioner came to Us with the following:

ASSIGNMENT OF ERRORS

I

The Honorable Court of Appeals erred in holding that Petitioner-employer should answer directly andprimarily for the civil liability arising from the criminal act of its employee.

II

The Honorable Court of Appeals erred in holding that there was sufficient publication of the allegedlibelous telegram in question, as contemplated by law on libel.

III

The Honorable Court of Appeals erred in holding that the liability of petitioner-company-employer ispredicated on Articles 19 and 20 of the Civil Code, Articles on Human Relations.

IV


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The Honorable Court of Appeals erred in awarding Atty's. fees. (p. 4, Record)

Petitioner's contentions do not merit our consideration. The action for damages was filed in the lower court directlyagainst respondent corporation not as an employer subsidiarily liable under the provisions of Article 1161 of the NewCivil Code in relation to Art. 103 of the Revised Penal Code. The cause of action of the private respondent is basedon Arts. 19 and 20 of the New Civil Code (supra). As well as on respondent's breach of contract thru the negligenceof its own employees. 1

Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime aperson transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rateor fee fixed, the petitioner undertakes to transmit the message accurately. There is no question that in the case atbar, libelous matters were included in the message transmitted, without the consent or knowledge of the sender.There is a clear case of breach of contract by the petitioner in adding extraneous and libelous matters in themessage sent to the private respondent. As a corporation, the petitioner can act only through its employees. Hencethe acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that thepetitioner is not liable directly for the acts of its employees in the pursuit of petitioner's business is to deprive thegeneral public availing of the services of the petitioner of an effective and adequate remedy. In most cases,negligence must be proved in order that plaintiff may recover. However, since negligence may be hard tosubstantiate in some cases, we may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for itself), byconsidering the presence of facts or circumstances surrounding the injury.

WHEREFORE, premises considered, the judgment of the appellate court is hereby AFFIRMED.

SO ORDERED.

Feria (Chairman), Fernan, Alampay, and Gutierrez, Jr., JJ., concur.

Footnotes

1 In contracts the negligence of the employee (servant) is the negligence of the employer (master).This is the master and servant rule.



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Philippine Supreme Court Jurisprudence > Year 1989 > November 1989 Decisions > G.R. Nos. 79050-51

November 14, 1989 - PANTRANCO NORTH EXPRESS, INC. v. MARICAR BASCOS BAESA, ET AL.:

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Division

THIRD DIVISION

[G.R. Nos. 79050-51. November 14, 1989.]

PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS BAESA, thru her personal

guardian FRANCISCA O. BASCOS, FE O. ICO, in her behalf and in behalf of her minor children,

namely ERWIN, OLIVE, EDMUNDO and SHARON ICO, Respondents.

Efren N. Ambrosio & Associates for petitioner PNEI.

Emiliano S. Micu for Respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. — The doctrine of last

clear chance applies only in a situation where the defendant, having the last fair chance to avoid the

impending harm and failed to do so, becomes liable for all the consequences of the accident

notwithstanding the prior negligence of the plaintiff.

2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. — In order that the doctrine of last clear

chance may be applied, it must be shown that the person who allegedly had the last opportunity to avert

the accident was aware of the existence of the peril or with exercise of due care should have been aware

of it.

3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY AVAILABLE MEANS. —

This doctrine of last chance has no application to a case where a person is to act instantaneously, and if

the injury cannot be avoided by using all means available after the peril is or should have been

discovered.

4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY OR A STOP

INTERSECTION. — Section 43 (c), Article III, Chapter IV of Republic Act No. 1436 cannot apply to case a

bar where at the time of the accident, the jeepney had already crossed the intersection.

5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. — A finding of negligence on the

part of the driver establishes a presumption that the employer has been negligent and the latter has the

burden of proof that it has exercised due negligence not only in the selection of its employees but also in

adequately supervising their work.

6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES. — Plaintiff’s failure to

present documentary evidence to support their claim for damages for loss of earning capacity of the

deceased victim does not bar recovery of the damages, if such loss may be based sufficiently on their

testimonies.

7. ID.; ID.; INDEMNITY FIXED AT P30,000. — The indemnity for the death of a person was fixed by this

Court at (P30,000.00).

D E C I S I O N

CORTES, J.:

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to review the decision of the

Court of Appeals in CA-G.R. No. 05494-95 which affirmed the decisions of the Court of First Instance of

Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein PANTRANCO was ordered

to pay damages and attorney’s fees to herein private respondents.chanrobles vi rtual l aw l ibrary

The pertinent fact are as follows:chanrob1es vi rtual 1aw li brary

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G.R. Nos. 79050-51 November 14, 1989 - PANTRANCO NORTH EX... http://www.chanrobles.com/cralaw/1989novemberdecisions.php?id=844

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November-1989 Jurisprudence

G.R. No. 50654 November 6, 1989 - RUDY GLEO

ARMIGOS v. COURT OF APPEALS, ET AL.

G.R. No. 53401 November 6, 1989 - ILOCOS NORTE

ELECTRIC COMPANY v. COURT OF APPEALS, ET AL.

G.R. No. 57876 November 6, 1989 - FRANCISCA PUZON

GAERLAN v. COURT OF APPEALS, ET AL.

G.R. No. 60159 November 6, 1989 - FAUSTO ANDAL v.

SANDIGANBAYAN, ET AL.

G.R. No. 63462 November 6, 1989 - PEOPLE OF THE

PHIL. v. JOSE PIRRERAS, ET AL.

G.R. No. 71871 November 6, 1989 - TEODORO M.

HERNANDEZ v. COMMISSION ON AUDIT

G.R. No. 74431 November 6, 1989 - PURITA MIRANDA

VESTIL, ET AL. v. INTERMEDIATE APPELLATE COURT, ET

AL.

G.R. Nos. 74989-90 November 6, 1989 - JOEL B. CAES

v. INTERMEDIATE APPELLATE COURT, ET AL.

G.R. Nos. 76019-20 November 6, 1989 - PEOPLE OF

THE PHIL. v. MARTIN BRUCA

G.R. No. 79743 November 6, 1989 - MARIA PILAR

MARQUEZ v. COURT OF APPEALS, ET AL.


THE PHIL. v. HENRY B. BASILLA, ET AL.

G.R. No. 84458 November 6, 1989 - ABOITIZ SHIPPING

CORPORATION v. COURT OF APPEALS, ET AL.

G.R. No. 84497 November 6, 1989 - ALFONSO

ESCOVILLA, JR., ET AL. v. COURT OF APPEALS, ET AL.

G.R. No. 84979 November 6, 1989 - STRONGHOLD

INSURANCE CO. INC. v. COURT OF APPEALS, ET AL.

G.R. No. 85085 November 6, 1989 - ASSOCIATED

LABOR UNIONS v. PURA FERRER-CALLEJA, ET AL.

G.R. Nos. 86540-41 November 6, 1989 - MANTRUSTE

SYSTEMS, INC. v. COURT OF APPEALS, ET AL.

G.R. Nos. 89095 & 89555 November 6, 1989 - SIXTO P.

CRISOSTOMO v. SECURITIES AND EXCHANGE

COMMISSION, ET AL.

G.R. Nos. 68580-81 November 7, 1989 - AGUSTIN T.

DIOQUINO, ET AL. v. INTERMEDIATE APPELLATE

COURT, ET AL.

G.R. No. 82895 November 7, 1989 - LLORA MOTORS,

At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their

children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son

Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at

Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa.

The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who was

also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver

some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the highway going to Malalam

River. Upon reaching the highway, the jeepney turned right and proceeded to Malalam River at a speed

of about 20 kph. While they were proceeding towards Malalam River, a speeding PANTRANCO bus from

Aparri, on its regular route to Manila, encroached on the jeepney’s lane while negotiating a curve, and

collided with it.

As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children, Harold

Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney was

extensively damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded

a car and proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has never been

seen and has apparently remained in hiding.

All the victims and/or their surviving heirs except herein private respondents settled the case amicably

under the "No Fault" insurance coverage of PANTRANCO.

Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor

children, filed separate actions for damages arising from quasi-delict against PANTRANCO, respectively

docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of Pangasinan.

In its answer, PANTRANCO, aside from pointing to the late David Ico’s alleged negligence as the

proximate cause of the accident, invoked the defense of due diligence in the selection and supervision of

its driver, Ambrosio Ramirez.chanrobl esvirtual aw l i brary

On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO awarding the total

amount of Two Million Three Hundred Four Thousand Six Hundred Forty-Seven (P2,304,647.00) as

damages, plus 10% thereof as attorney’s fees and costs to Maricar Baesa in Civil Case No. 561-R, and

the total amount of Six Hundred Fifty Two Thousand Six Hundred Seventy-Two Pesos (P652,672.00) as

damages, plus 10% thereof as attorney’s fees and costs to Fe Ico and her children in Civil Case No.

589-R. On appeal, the cases were consolidated and the Court of Appeals modified the decision of the

trial court by ordering PANTRANCO to pay the total amount of One Million One Hundred Eighty-Nine

Thousand Nine Hundred Twenty Seven Pesos (P1,189,927.00) as damages, plus Twenty Thousand Pesos

(P20,000.00) as attorney’s fees to Maricar Baesa, and the total amount of Three Hundred Forty-Four

Thousand Pesos (P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorney’s fees to Fe Ico and

her children, and to pay the costs in both cases. The dispositive portion of the assailed decision reads as

follows:chanrob1es vi rtual 1aw l i brary

WHEREFORE, the decision appealed from is hereby modified by ordering the defendant PANTRANCO

North Express, Inc. to pay:chanrob1es vi rtual 1aw l i brary

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following damages:chanrob1es vi rtual 1aw l i brary

A) As compensatory damages for the death of Ceasar Baesa — P30,000.00;

B) As compensatory damages for the death of Marilyn Baesa — P30,000.00;

C) As compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa — P30,000.00;

D) For the loss of earnings of Ceasar Baesa — P630,000.00;

E) For the loss of earnings of Marilyn Bascos Baesa — P375,000.00;

F) For the burial expenses of the deceased Ceasar and Marilyn Baesa — P41,200.00;

G) For hospitalization expenses of Maricar Baesa — P3,727.00;

H) As moral damages — P50,000.00;

I) As attorney’s fees — P20,000.00;

II. The plaintiffs in Civil Case No. 589-R, the following damages:chanrob1es vi rtual 1aw li brary

A) As compensatory damages for the death of David Ico — P30,000.00;

B) For loss of earning capacity of David Ico — P252,000.00;

C) As moral damages for the death of David Ico and the injury of Fe Ico — P30,000.00

D) As payment for the jeepney — P20,000.00;

E) For the hospitalization of Fe Ico — P12,000.000;

F) And for attorney’s fees — P10,000.00;

and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No. 561-R, and the medical

expenses in the sum of P3,273.55, should be deducted from the award in her favor.chanrobl es vi rtual l aw l i brary

All the foregoing amounts herein awarded except the costs shall earn interest at the legal rate from date

of this decision until fully paid. [CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeal’s decision, but on June 26, 1987, it

denied the same for lack of merit. PANTRANCO then filed the instant petition for review.

I

Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance" against the

jeepney driver. Petitioner claims that under the circumstances of the case, it was the driver of the

passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in


2 of 5 8/7/2015 3:56 PM

INC., ET AL. v. FRANKLIN DRILON, ET AL.

G.R. No. 48518 November 8, 1989 - GREGORIO

SANTIAGO v. COURT OF APPEALS, ET AL.

G.R. No. 55750 November 8, 1989 - RUBEN MELGAR, ET

AL. v. CARLOS R. BUENVIAJE, ET AL.

G.R. No. 74817 November 8, 1989 - SIMEON ESTOESTA,

SR., ET AL. v. COURT OF APPEALS, ET AL.

G.R. No. 78051 November 8, 1989 - ISAGANI M.

JUNGCO v. COURT OF APPEALS, ET AL.

G.R. No. 78413 November 8, 1989 - CAGAYAN VALLEY

ENTERPRISES, INC. v. COURT OF APPEALS, ET AL.

G.R. No. 80796 November 8, 1989 - PROVINCE OF

CAMARINES NORTE v. PROVINCE OF QUEZON


PHIL. v. HAIDE DE LUNA

G.R. No. 72323 November 9, 1989 - MANUEL VILLAR,

ET AL. v. PHILIPPINE DEPOSIT INSURANCE CORP., ET

AL.

G.R. No. 76193 November 9, 1989 - UNITED FEATURE

SYNDICATE, INC. v. MUNSINGWEAR CREATION

MANUFACTURING COMPANY

G.R. No. 82805 November 9, 1989 - BRIAD AGRO

DEVELOPMENT CORPORATION v. DIONISIO DELA

CERNA, ET AL.

G.R. No. 86819 November 9, 1989 - ADAMSON

UNIVERSITY v. ADAMSON UNIVERSITY FACULTY AND

EMPLOYEES ASSOCIATION, ET AL.

G.R. No. 89651 November 10, 1989 - FIRDAUSI I.Y.

ABBAS, ET AL. v. COMMISSION ON ELECTIONS, ET AL.


THE PHIL. v. MANUEL MATEO, JR., ET AL.


PHIL. v. STALIN P. GUEVARRA

G.R. No. 66944 November 13, 1989 - ALLIANCE

TOBACCO CORPORATION, INC. v. PHILIPPINE

VIRGINIA TOBACCO ADMINISTRATION, ET AL.

G.R. No. 75041 November 13, 1989 - ROSA N. EDRA, ET

AL. v. INTERMEDIATE APPELLATE COURT, ET AL.

G.R. No. 79403 November 13, 1989 - EMETERIO M.

MOZAR v. COURT OF APPEALS, ET AL.

G.R. Nos. 82238-42 November 13, 1989 - ANTONIO T.

GUERRERO, ET AL. v. ADRIANO R. VILLAMOR

G.R. No. 83664 November 13, 1989 - RENATO S.

SANTOS v. COURT OF APPEALS, ET AL.

G.R. No. 49668 November 14, 1989 - POLICARPIO

GALICIA, ET AL. v. WENCESLAO M. POLO, ET AL.


PHIL. v. SERGIO SERENIO

G.R. Nos. 79050-51 November 14, 1989 - PANTRANCO

NORTH EXPRESS, INC. v. MARICAR BASCOS BAESA, ET

AL.


PHIL. v. REYNATO ASUNCION, ET AL.


PHIL. v. SUSANA M. NAPAT-A

G.R. No. 39632 November 15, 1989 - APOLONIO G.

MALENIZA v. COMMISSION ON AUDIT


PHIL. v. ARNULFO LISTON, ET AL.


PHIL. v. SABINO VERONAS, ET AL.

G.R. No. 71159 November 15, 1989 - CITY OF MANILA,

ET AL. v. INTERMEDIATE APPELLATE COURT, ET AL.


PHIL. v. RICARDO B. SALITA

G.R. No. 80486 November 15, 1989 - SALVADOR

ESMILLA, ET AL. v. FEDERICO ALVAREZ, ET AL.

G.R. Nos. 83380-81 November 15, 1989 - MAKATI

HABERDASHERY, INC., ET AL. v. NATIONAL LABOR

RELATIONS COMMISSION, ET AL.

failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.

The doctrine of the last clear chance was defined by this Court in the case of Ong v. Metropolitan Water

District, 104 Phil. 397 (1958), in this wise:chanrob1es vi rtual 1aw l i brary

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. v. 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 for damages.chanrobl es l aw l i brary : rednad

To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its

driver was not the proximate cause of the accident and that the sole proximate cause was the

supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is petitioner’s

position that even assuming arguendo, that the bus encroached into the lane of the jeepney, the driver

of the latter could have swerved the jeepney towards the spacious dirt shoulder on his right without

danger to himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioner’s contention, the doctrine of "last clear chance" finds no application in this

case. For the doctrine to be applicable, it is necessary to show that the person who allegedly had the last

opportunity to avert the accident was aware of the existence of the peril or should, with exercise of due

care, have been aware of it. One cannot be expected to avoid an accident or injury if he does not know

or could not have known the existence of the peril. In this case, there is nothing to show that the

jeepney driver David Ico knew of the impending danger. When he saw at a distance that the

approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt

shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane

upon seeing the jeepney approaching from the opposite direction. As held by this Court in the case of

Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618, a motorist who is properly

proceeding on his own side of the highway is generally entitled to assume that an approaching vehicle

coming towards him on the wrong side, will return to his proper lane of traffic. There was nothing to

indicate to David Ico that the bus could not return to its own lane or was prevented from returning to

the proper lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the

Pantranco bus who was seated beside the driver Ramirez at the time of the accident, testified that

Ramirez had no choice but to swerve the steering wheel to the left and encroach on the jeepney’s lane

because there was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is

belied by the evidence on record which clearly shows that there was enough space to swerve the bus

back to its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].

Moreover, both the trial court and the Court of Appeals found that at the time of the accident the

Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David Ico

must have realized that the bus was not returning to its own lane, it was already too late to swerve the

jeepney to his right to prevent an accident. The speed at which the approaching bus was running

prevented David Ico from swerving the jeepney to the right shoulder of the road in time to avoid the

collision. Thus, even assuming that the jeepney driver perceived the danger a few seconds before the

actual collision, he had no opportunity to avoid it. This Court has held that the last clear chance doctrine

"can never apply where the party charged is required to act instantaneously, and if the injury cannot be

avoided by the application of all means at hand after the peril is or should have been discovered" [Ong

v. Metropolitan Water District, supra].chanrobl es.com : vi rtual l aw l i brary

Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article III

Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a through

highway or a stop intersection shall yield the right of way to all vehicles approaching in either direction

on such through highway.

Petitioner’s misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself

provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of

the accident, the jeepney had already crossed the intersection and was on its way to Malalam River.

Petitioner itself cited Fe Ico’s testimony that the accident occurred after the jeepney had travelled a

distance of about two (2) meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In fact,

even the witness for the petitioner, Leo Marantan, testified that both vehicles were coming from

opposite directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating that the jeepney had already

crossed the intersection.

Considering the foregoing, the Court finds that the negligence of petitioner’s driver in encroaching into

the lane of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing

the jeepney coming from the opposite direction was the sole and proximate cause of the accident

without which the collision would not have occurred. There was no supervening or intervening

negligence on the part of the jeepney driver which would have made the prior negligence of petitioner’s

driver a mere remote cause of the accident.

II

On the issue of its liability as an employer, petitioner claims that it had observed the diligence of a good

father of a family to prevent damage, conformably to the last paragraph of Article 2180 of the Civil

Code. Petitioner adduced evidence to show that in hiring its drivers, the latter are required to have

professional driver’s license and police clearance. The drivers must also pass written examinations,

interviews and practical driving tests, and are required to undergo a six-month training period. Rodrigo

San Pedro, petitioner’s Training Coordinator, testified on petitioner’s policy of conducting regular and

continuing training programs and safety seminars for its drivers, conductors, inspectors and supervisors

at a frequency rate of at least two (2) seminars a month.


3 of 5 8/7/2015 3:56 PM

G.R. No. 84484 November 15, 1989 - INSULAR LIFE

ASSURANCE CO., LTD. v. NATIONAL LABOR RELATIONS

COMMISSION, ET AL.

G.R. No. 88379 November 15, 1989 - PHILIPPINE

CHARTER INSURANCE CORPORATION v. COURT OF

APPEALS, ET AL.

G.R. Nos. 90273-75 November 15, 1989 - FINMAN

GENERAL ASSURANCE CORP. v. WILLIAM INOCENCIO,

ET AL.

A.C. No. 2974 November 15, 1989 - ROGELIO A.

MIRANDA v. ORLANDO A. RAYOS, ET AL.


PHIL. v. PEDRO T. OLAPANI, ET AL.


PHIL. v. FERNANDO T. HERNANDEZ, ET AL.

G.R. No. 83828 November 16, 1989 - LEONOR

MAGDANGAL, ET AL. v. CITY OF OLONGAPO, ET AL.

G.R. No. 84628 November 16, 1989 - HEIRS OF

ILDEFONSO COSCOLLUELA, SR., INC. v. RICO GENERAL

INSURANCE CORPORATION, ET AL.

G.R. No. 45061 November 20, 1989 - DIRECTOR OF

LANDS v. COURT OF APPEALS, ET AL.

G.R. Nos. 30475-76 November 22, 1989 - GENERAL

INSURANCE & SURETY CORPORATION v. UNION

INSURANCE SOCIETY OF CANTON, ET AL.

G.R. Nos. 48468-69 November 22, 1989 - ORLANDO

PRIMERO v. COURT OF APPEALS, ET AL.

G.R. No. 61466 November 22, 1989 - ENRIQUE T.

JOCSON, ET AL. v. ALFONSO BAGUIO, ET AL.

G.R. No. 69450 November 22, 1988

EASTERN ASSURANCE & SURETY CORPORATION v.

INTERMEDIATE APPELLATE COURT, ET AL.

G.R. No. 79886 November 22, 1989 - QUALITRANS

LIMOUSINE SERVICE, INC. v. ROYAL CLASS LIMOUSINE

SERVICE, ET AL.

G.R. No. 88725 November 22, 1989 - ASIAN

TRANSMISSION CORPORATION v. NATIONAL LABOR

RELATIONS COMMISSION, ET AL.

G.R. No. 38984 November 24, 1989 - MACARIO D.

EMBUSCADO v. PEOPLE OF THE PHIL., ET AL.

G.R. No. 60690 November 24, 1989 - VIRGINIA JORGE,

ET AL. v. FRANCISCO Z. CONSOLACION, ET AL.

G.R. No. 79564 November 24, 1989 - AURORA B.

CAMACHO v. COURT OF APPEALS, ET AL.


PHIL., ET AL. v. ARNEL MITRA, ET AL.

G.R. Nos. 46898-99 November 28, 1989 - PHIL.

NATIONAL BANK v. RUSTICO DE LOS REYES, ET AL.

G.R. No. 79351 November 28, 1989 - DEVELOPMENT

BANK OF THE PHILIPPINES v. SECRETARY OF LABOR,

ET AL.

G.R. No. 85141 November 28, 1989 - FILIPINO

MERCHANTS INSURANCE CO., INC. v. COURT OF

APPEALS, ET AL.

G.R. No. 86025 November 28, 1989 - RODOLFO R.

AQUINO, ET AL. v. DEODORO J. SISON, ET AL.

A.C. No. 1334 November 28, 1989 - ROSARIO DELOS

REYES v. JOSE B. AZNAR

G.R. No. 51655 November 29, 1989 - VICENTE DEL

ROSARIO v. JULIO BANSIL, ET AL.

G.R. No. 72199 November 29, 1989 - ADELINO R.

MONTANEZ, ET AL. v. PEOPLE OF THE PHIL.

G.R. No. 82304 November 29, 1989 - HONORATO M.

FRUTO v. RAINERO O. REYES, ET AL.

A.C. No. 3249 November 29, 1989 - SALVACION DELIZO

CORDOVA v. LAURENCE D. CORDOVA

On this point, the Court quotes with approval the following findings of the trial court which was adopted

by the Court of Appeals in its challenged decision:chanrob1es vi rtual 1aw l i brary

When an injury is caused by the negligence of an employee, there instantly arises a presumption that

the employer has been negligent either in the selection of his employees or in the supervision over their

acts. Although this presumption is only a disputable presumption which could be overcome by proof of

diligence of a good father of a family, this Court believes that the evidence submitted by the defendant

to show that it exercised the diligence of a good father of a family in the case of Ramirez, as a company

driver is far from sufficient. No support evidence has been adduced. The professional driver’s license of

Ramirez has not been produced. There is no proof that he is between 25 to 38 years old. There is also

no proof as to his educational attainment, his age, his weight and the fact that he is married or not.

Neither are the result of the written test, psychological and physical test, among other tests, have been

submitted in evidence [sic]. His NBI or police clearances and clearances from previous employment were

not marked in evidence. No evidence was presented that Ramirez actually and really attended the

seminars. Vital evidence should have been the certificate of attendance or certificate of participation or

evidence of such participation like a logbook signed by the trainees when they attended the seminars. If

such records are not available, the testimony of the classmates that Ramirez was their classmate in said

seminar (should have been presented) [CA Decision, pp. 8-9; Rollo, pp. 51-52].chanrobl es l aw l i brary

Petitioner contends that the fact that Ambrosio Ramirez was employed and remained as its driver only

means that he underwent the same rigid selection process and was subjected to the same strict

supervision imposed by petitioner on all applicants and employees. It is argued by the petitioner that

unless proven otherwise, it is presumed that petitioner observed its usual recruitment procedure and

company polices on safety and efficiency [Petition, p. 20; Rollo, p. 37].

The Court finds the above contention unmeritorious.

The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to the presumption of

negligence on the part of petitioner and the burden of proving that it exercised due diligence not only in

the selection of its employees but also in adequately supervising their work rests with the petitioner

[Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-40570, June 30,

1976, 69 SCRA 623]. Contrary to petitioner’s claim, there is no presumption that the usual recruitment

procedures and safety standards were observed. The mere issuance of rules and regulations and the

formulation of various company policies on safety, without showing that they are being complied with,

are not sufficient to exempt petitioner from liability arising from the negligence of its employee. It is

incumbent upon petitioner to show that in recruiting and employing the erring driver, the recruitment

procedures and company policies on efficiency and safety were followed. Petitioner failed to do this.

Hence, the Court finds no cogent reason to disturb the finding of both the trial court and the Court of

Appeals that the evidence presented by the petitioner, which consists mainly of the uncorroborated

testimony of its Training Coordinator, is insufficient to overcome the presumption of negligence against

petitioner.cral aw nad

III

On the question of damages, petitioner claims that the Court of Appeals erred in fixing the damages for

the loss of earning capacity of the deceased victims. Petitioner assails respondent court’s findings

because no documentary evidence in support thereof, such as income tax returns, pay-rolls, pay slips or

invoices obtained in the usual course of business, were presented [Petition, p. 22; Rollo, p. 39].

Petitioner argues that the "bare and self-serving testimonies of the wife of the deceased David Ico and

the mother of the deceased Marilyn Baesa . . . have no probative value to sustain in law the Court of

Appeals’ conclusion on the respective earnings of the deceased victims." [Petition, pp. 21-22; Rollo, pp.

38-39.] It is petitioner’s contention that the evidence presented by the private respondent does not

meet the requirements of clear and satisfactory evidence to prove actual and compensatory damages.

The Court finds that the Court of Appeals committed no reversible error in fixing the amount of damages

for the loss of earning capacity of the deceased victims. While it is true that private respondents should

have presented documentary evidence to support their claim for damages for loss of earning capacity of

the deceased victims, the absence thereof does not necessarily bar the recovery of the damages in

question. The testimony of Fe Ico and Francisca Bascos as to the earning capacity of David Ico, and the

spouses Baesa, respectively, are sufficient to establish a basis from which the court can make a fair and

reasonable estimate of the damages for the loss of earning capacity of the three deceased victims.

Moreover, in fixing the damages for loss of earning capacity of a deceased victim, the court can consider

the nature of his occupation, his educational attainment and the state of his health at the time of death.

In the instant case, David Ico was thirty eight (38) years old at the time of his death in 1981 and was

driving his own passenger jeepney. The spouses Ceasar and Marilyn Baesa were both thirty (30) years

old at the time of their death. Ceasar Baesa was a commerce degree holder and the proprietor of the

Cauayan Press, printer of the Cauayan Valley Newspaper and the Valley Times at Cauayan, Isabela.

Marilyn Baesa graduated as a nurse in 1976 and at the time of her death, was the company nurse,

personnel manager, treasurer and cashier of the Ilagan Press at Ilagan, Isabela. Respondent court duly

considered these factors, together with the uncontradicted testimonies of Fe Ico and Francisca Bascos, in

fixing the amount of damages for the loss of earning capacity of David Ico and the spouses Baesa.chanrobl es.com:cral aw:red

However, it should be pointed out that the Court of Appeals committed error in fixing the compensatory

damages for the death of Harold Jim Baesa and Marcelino Baesa. Respondent court awarded to plaintiff

(private respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00) as "compensatory damages for

the death of Harold Jim Baesa and Marcelino Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the

Court of Appeals awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity for the death of

Harold Jim Baesa and another Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa.

This is clearly erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29,

1983, 126 SCRA 518, the indemnity for the death of a person was fixed by this Court at Thirty Thousand

Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be awarded Sixty Thousand Pesos

(P60,000.00) as indemnity for the death of her brothers, Harold Jim Baesa and Marcelino Baesa or

Thirty Thousand Pesos (P30,000.00) for the death of each brother.

The other items of damages awarded by respondent court which were not challenged by the petitioner

are hereby affirmed.

WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court of

Appeals is hereby AFFIRMED with the modification that the amount of compensatory damages for the

death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos (P30,000.00)

each.chanrobl es l aw l i brary

SO ORDERED.

Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.


4 of 5 8/7/2015 3:56 PM

Endnotes:

* R.A. 4136 is entitled "An Act to Compile the Laws Relative to Land Transportation and

Traffic Rules, To Create A Land Transportation Commission and other Purposes."

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5 of 5 8/7/2015 3:56 PM



Manila

THIRD DIVISION

G.R. No. L-47379 May 16, 1988

NATIONAL POWER CORPORATION, petitioner,vs.HONORABLE COURT OF APPEALS and ENGINEERING CONSTRUCTION, INC., respondents.

G.R. No. L-47481 May 16, 1988

ENGINEERING CONSTRUCTION, INC., petitioner,vs.COUTRT OF APPEALS and NATIONAL POWER CORPORATION, respondents.

Raymundo A. Armovit for private respondent in L-47379.

The Solicitor General for petitioner.

GUTIERREZ, JR., J.:

These consolidated petitions seek to set aside the decision of the respondent Court of Appeals which adjudged theNational Power Corporation liable for damages against Engineering Construction, Inc. The appellate court, however,reduced the amount of damages awarded by the trial court. Hence, both parties filed their respective petitions: theNational Power Corporation (NPC) in G.R. No. 47379, questioning the decision of the Court of Appeals for holding itliable for damages and the Engineering Construction, Inc. (ECI) in G.R. No. 47481, questioning the same decisionfor reducing the consequential damages and attorney's fees and for eliminating the exemplary damages.

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

On August 4, 1964, plaintiff Engineering Construction, Inc., being a successful bidder, executed acontract in Manila with the National Waterworks and Sewerage Authority (NAWASA), whereby theformer undertook to furnish all tools, labor, equipment, and materials (not furnished by Owner), and toconstruct the proposed 2nd lpo-Bicti Tunnel, Intake and Outlet Structures, and Appurtenant Structures,and Appurtenant Features, at Norzagaray, Bulacan, and to complete said works within eight hundred(800) calendar days from the date the Contractor receives the formal notice to proceed (Exh. A).

The project involved two (2) major phases: the first phase comprising, the tunnel work covering adistance of seven (7) kilometers, passing through the mountain, from the Ipo river, a part ofNorzagaray, Bulacan, where the Ipo Dam of the defendant National Power Corporation is located, toBicti; the other phase consisting of the outworks at both ends of the tunnel.

By September 1967, the plaintiff corporation already had completed the first major phase of the work,namely, the tunnel excavation work. Some portions of the outworks at the Bicti site were still underconstruction. As soon as the plaintiff corporation had finished the tunnel excavation work at the Bictisite, all the equipment no longer needed there were transferred to the Ipo site where some projectswere yet to be completed.

The record shows that on November 4,1967, typhoon 'Welming' hit Central Luzon, passing throughdefendant's Angat Hydro-electric Project and Dam at lpo, Norzagaray, Bulacan. Strong winds struck theproject area, and heavy rains intermittently fell. Due to the heavy downpour, the water in the reservoirof the Angat Dam was rising perilously at the rate of sixty (60) centimeters per hour. To prevent an

G.R. No. L-47379 http://www.lawphil.net/judjuris/juri1988/may1988/gr_l_47379_1988.html

1 of 4 8/7/2015 3:57 PM

overflow of water from the dam, since the water level had reached the danger height of 212 metersabove sea level, the defendant corporation caused the opening of the spillway gates." (pp. 45-46,L-47379, Rollo)

The appellate court sustained the findings of the trial court that the evidence preponlderantly established the factthat due to the negligent manner with which the spillway gates of the Angat Dam were opened, an extraordinarylarge volume of water rushed out of the gates, and hit the installations and construction works of ECI at the lpo sitewith terrific impact, as a result of which the latter's stockpile of materials and supplies, camp facilities and permanentstructures and accessories either washed away, lost or destroyed.

The appellate court further found that:

It cannot be pretended that there was no negligence or that the appellant exercised extraordinary carein the opening of the spillway gates of the Angat Dam. Maintainers of the dam knew very well that itwas far more safe to open them gradually. But the spillway gates were opened only when typhoonWelming was already at its height, in a vain effort to race against time and prevent the overflow ofwater from the dam as it 'was rising dangerously at the rate of sixty centimeters per hour. 'Action couldhave been taken as early as November 3, 1967, when the water in the reservoir was still low. At thattime, the gates of the dam could have been opened in a regulated manner. Let it be stressed that theappellant knew of the coming of the typhoon four days before it actually hit the project area. (p. 53,L-47379, Rollo)

As to the award of damages, the appellate court held:

We come now to the award of damages. The appellee submitted a list of estimated losses anddamages to the tunnel project (Ipo side) caused by the instant flooding of the Angat River (Exh. J-1).The damages were itemized in four categories, to wit: Camp Facilities P55,700.00; Equipment, Partsand Plant — P375,659.51; Materials P107,175.80; and Permanent Structures and accessories —P137,250.00, with an aggregate total amount of P675,785.31. The list is supported by several voucherswhich were all submitted as Exhibits K to M-38 a, N to O, P to U-2 and V to X- 60-a (Vide: Folders Nos.1 to 4). The appellant did not submit proofs to traverse the aforementioned documentary evidence. Wehold that the lower court did not commit any error in awarding P 675,785.31 as actual or compensatorydamages.

However, We cannot sustain the award of P333,200.00 as consequential damages. This amount isbroken down as follows: P213,200.00 as and for the rentals of a crane to temporarily replace the one"destroyed beyond repair," and P120,000.00 as one month bonus which the appellee failed to realize inaccordance with the contract which the appellee had with NAWASA. Said rental of the crane allegedlycovered the period of one year at the rate of P40.00 an hour for 16 hours a day. The evidence,however, shows that the appellee bought a crane also a crawler type, on November 10, 1967, six (6)days after the incident in question (Exh N) And according to the lower court, which finding was neverassailed, the appellee resumed its normal construction work on the Ipo- Bicti Project after a stoppageof only one month. There is no evidence when the appellee received the crane from the seller, AsianEnterprise Limited. But there was an agreement that the shipment of the goods would be effectedwithin 60 days from the opening of the letter of credit (Exh. N).<är e| | anº • 1àw> It appearing that the contract of salewas consummated, We must conclude or at least assume that the crane was delivered to the appelleewithin 60 days as stipulated. The appellee then could have availed of the services of another crane fora period of only one month (after a work stoppage of one month) at the rate of P 40.00 an hour for 16hours a day or a total of P 19,200.00 as rental.

But the value of the new crane cannot be included as part of actual damages because the old wasreactivated after it was repaired. The cost of the repair was P 77,000.00 as shown in item No. 1 underthe Equipment, Parts and Plants category (Exh. J-1), which amount of repair was already included inthe actual or compensatory damages. (pp. 54-56, L-47379, Rollo)

The appellate court likewise rejected the award of unrealized bonus from NAWASA in the amount of P120,000.00(computed at P4,000.00 a day in case construction is finished before the specified time, i.e., within 800 calendardays), considering that the incident occurred after more than three (3) years or one thousand one hundred seventy(1,170) days. The court also eliminated the award of exemplary damages as there was no gross negligence on thepart of NPC and reduced the amount of attorney's fees from P50,000.00 to P30,000.00.

In these consolidated petitions, NPC assails the appellate court's decision as being erroneous on the ground thatthe destruction and loss of the ECI's equipment and facilities were due to force majeure. It argues that the rapid rise


2 of 4 8/7/2015 3:57 PM

of the water level in the reservoir of its Angat Dam due to heavy rains brought about by the typhoon was anextraordinary occurrence that could not have been foreseen, and thus, the subsequent release of water through thespillway gates and its resultant effect, if any, on ECI's equipment and facilities may rightly be attributed to forcemajeure.

On the other hand, ECI assails the reduction of the consequential damages from P333,200.00 to P19,000.00 on thegrounds that the appellate court had no basis in concluding that ECI acquired a new Crawler-type crane andtherefore, it only can claim rentals for the temporary use of the leased crane for a period of one month; and that theaward of P4,000.00 a day or P120,000.00 a month bonus is justified since the period limitation on ECI's contractwith NAWASA had dual effects, i.e., bonus for earlier completion and liquidated damages for delayed performance;and in either case at the rate of P4,000.00 daily. Thus, since NPC's negligence compelled work stoppage for aperiod of one month, the said award of P120,000.00 is justified. ECI further assailes the reduction of attorney's feesand the total elimination of exemplary damages.

Both petitions are without merit.

It is clear from the appellate court's decision that based on its findings of fact and that of the trial court's, petitionerNPC was undoubtedly negligent because it opened the spillway gates of the Angat Dam only at the height oftyphoon "Welming" when it knew very well that it was safer to have opened the same gradually and earlier, as it wasalso undeniable that NPC knew of the coming typhoon at least four days before it actually struck. And even thoughthe typhoon was an act of God or what we may call force majeure, NPC cannot escape liability because itsnegligence was the proximate cause of the loss and damage. As we have ruled in Juan F. Nakpil & Sons v. Court ofAppeals, (144 SCRA 596, 606-607):

Thus, if upon the happening of a fortuitous event or an act of God, there concurs a correspondingfraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation asprovided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannotescape liability.

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

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

Furthermore, the question of whether or not there was negligence on the part of NPC is a question of fact whichproperly falls within the jurisdiction of the Court of Appeals and will not be disturbed by this Court unless the same isclearly unfounded. Thus, in Tolentino v. Court of appeals, (150 SCRA 26, 36) we ruled:

Moreover, the findings of fact of the Court of Appeals are generally final and conclusive upon theSupreme Court (Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In fact it is settled that theSupreme Court is not supposed to weigh evidence but only to determine its substantially (Nuñez v.Sandiganbayan, 100 SCRA 433 [1982] and will generally not disturb said findings of fact whensupported by substantial evidence (Aytona v. Court of Appeals, 113 SCRA 575 [1985]; Collector ofCustoms of Manila v. Intermediate Appellate Court, 137 SCRA 3 [1985]. On the other hand substantialevidence is defined as such relevant evidence as a reasonable mind might accept as adequate tosupport a conclusion (Philippine Metal Products, Inc. v. Court of Industrial Relations, 90 SCRA 135[1979]; Police Commission v. Lood, 127 SCRA 757 [1984]; Canete v. WCC, 136 SCRA 302 [1985])

Therefore, the respondent Court of Appeals did not err in holding the NPC liable for damages.

Likewise, it did not err in reducing the consequential damages from P333,200.00 to P19,000.00. As shown by therecords, while there was no categorical statement or admission on the part of ECI that it bought a new crane toreplace the damaged one, a sales contract was presented to the effect that the new crane would be delivered to itby Asian Enterprises within 60 days from the opening of the letter of credit at the cost of P106,336.75. The offer was


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made by Asian Enterprises a few days after the flood. As compared to the amount of P106,336.75 for a brand newcrane and paying the alleged amount of P4,000.00 a day as rental for the use of a temporary crane, which usepetitioner ECI alleged to have lasted for a period of one year, thus, totalling P120,000.00, plus the fact that therewas already a sales contract between it and Asian Enterprises, there is no reason why ECI should opt to rent atemporary crane for a period of one year. The appellate court also found that the damaged crane was subsequentlyrepaired and reactivated and the cost of repair was P77,000.00. Therefore, it included the said amount in the awardof of compensatory damages, but not the value of the new crane. We do not find anything erroneous in the decisionof the appellate court that the consequential damages should represent only the service of the temporary crane forone month. A contrary ruling would result in the unjust enrichment of ECI.

The P120,000.00 bonus was also properly eliminated as the same was granted by the trial court on the premise thatit represented ECI's lost opportunity "to earn the one month bonus from NAWASA ... ." As stated earlier, the loss ordamage to ECI's equipment and facilities occurred long after the stipulated deadline to finish the construction. Nobonus, therefore, could have been possibly earned by ECI at that point in time. The supposed liquidated damagesfor failure to finish the project within the stipulated period or the opposite of the claim for bonus is not clearlypresented in the records of these petitions. It is not shown that NAWASA imposed them.

As to the question of exemplary damages, we sustain the appellate court in eliminating the same since it found thatthere was no bad faith on the part of NPC and that neither can the latter's negligence be considered gross. In DeeHua Liong Electrical Equipment Corp. v. Reyes, (145 SCRA 713, 719) we ruled:

Neither may private respondent recover exemplary damages since he is not entitled to moral orcompensatory damages, and again because the petitioner is not shown to have acted in a wanton,fraudulent, reckless or oppressive manner (Art. 2234, Civil Code; Yutuk v. Manila Electric Co., 2 SCRA377; Francisco v. Government Service Insurance System, 7 SCRA 577; Gutierrez v. Villegas, 8 SCRA527; Air France v. Carrascoso, 18 SCRA 155; Pan Pacific (Phil.) v. Phil. Advertising Corp., 23 SCRA977; Marchan v. Mendoza, 24 SCRA 888).

We also affirm the reduction of attorney's fees from P50,000.00 to P30,000.00. There are no compelling reasonswhy we should set aside the appellate court's finding that the latter amount suffices for the services rendered byECI's counsel.

WHEREFORE, the petitions in G.R. No. 47379 and G.R. No. 47481 are both DISMISSED for LACK OF MERIT. Thedecision appealed from is AFFIRMED.

SO ORDERED.

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



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Manila

THIRD DIVISION

G.R. No. 101683 February 23, 1995

LBC AIR CARGO, INC. FERNANDO M. YU and JAIME TANO, petitioners,vs.HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y OYON-OYON, represented byPATROCENIA GRONDIANO y MONTEROLA, and PATROCENIA GRONDIANO y MONTEROLA, respondents.

VITUG, J.:

In this petition for review, the application of the doctrines of "proximate cause" and "last clear chance" is, onceagain, being put to test. The petition questions the decision of the Court of Appeals, dated 18 July 1991, which hasreversed that of the trial court.

The case arose from a vehicular collision which occurred at about 11:30 in the morning of 15 November 1987.Rogelio Monterola, a licensed driver, was traveling on board his Suzuki motorcycle towards Mangagoy on the rightlane along a dusty national road in Bislig, Surigao del Sur. At about the same time, a cargo van of the LBC Air CargoIncorporated, driven by defendant Jaime Tano, Jr., was coming from the opposite direction on its way to the BisligAirport. On board were passengers Fernando Yu, Manager of LBC Air Cargo, and his son who was seated besideTano. When Tano was approaching the vicinity of the airport road entrance on his left, he saw two vehicles racingagainst each other from the opposite direction. Tano stopped his vehicle and waited for the two racing vehicles topass by. The stirred cloud of dust made visibility extremely bad. Instead of waiting for the dust to settled, Tanostarted to make a sharp left turn towards the airport road. When he was about to reach the center of the right lane,the motorcycle driven by Monterola suddenly emerged from the dust and smashed head-on against the right side ofthe LBC van. Monterola died from the severe injuries he sustained.

A criminal case for "homicide thru reckless imprudence" was filed against Tano. A civil suit was likewise instituted bythe heirs of deceased Monterola against Tano, along with Fernando Yu and LBC Air Cargo Incorporated, for therecovery of damages. The two cases were tried jointly by the Regional Trial Court, Branch 29, of Surigao del Sur.

On 29 July 1990, the trial court dismissed both cases on the ground that the proximate cause of the "accident" wasthe negligence of deceased Rogelio Monterola.

Private respondent appealed the dismissal of the civil case to the Court of Appeals. On 18 July 1991, the appellatecourt reversed the court a quo. It held:

WHEREFORE, the judgment appealed from is REVERSED, and another one is hereby renderedordering the defendants Jaime Tano and LBC Air Cargo, Inc. to jointly and severally pay the plaintiffPatrocinia Monterola the following amounts:

To SHERWIN MONTEROLA:

1. Indemnity for the death ofRogelio Monterola P50,000.00

2. For Moral damages P20,000.00

To PATROCINIA GRONDIANO Y MONTEROLA:

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3. Actual Damages P7,361.00

4. Hospitals & Burial Expenses 15,000.00

5. Attorneys' Fees and expensesof Litigation 10,000.00

Plus the costs.

Actual payment of the aforementioned amounts should however be reduced to twenty (20%) percent. 1

In the instant petition for review, petitioners contend that —

1. The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the driving of his vehicleand in failing to give a signal to approaching vehicles of his intention to make a left turn.

2. The Court of Appeals erred in not finding that the proximate cause of the accident was the victim'snegligence in the driving of his motorcycle in a very fast speed and thus hitting the petitioner's cargovan. 2

The issues raised are thus essentially factual. The intrinsic merit of, as well as cogency in, the detailed analysesmade by the Court of Appeals in arriving at its findings is at once apparent. Said the appellate court:

That visibility was poor when Jaime Tano made a left turn was admitted by the latter.

Q When these two vehicles passed by your parked vehicle, as you said, there were cloudsof dust, did I get you right?

A Yes sir, the road was dusty.

Q So much so that you could no longer see the vehicles from the opposite directionfollowing these vehicles?

A It is not clear, sir, so I even turned on my left signal and the headlight.

Q What do you mean by it was not clear, you could not see the incoming vehicles?

A I could not see because of the cloud of dust.

Q And it was at this juncture, when you were to follow your theory, when you started yourLBC van again and swerved to the left leading to the Bislig airport?

A I did not enter immediately the airport, I waited the dust to clear a little before I drove.

xxx xxx xxx

Q In other words when you said that it was slightly clear, you would like to tell theHonorable Court that you could only clearly see big vehicles . . . but not small vehicles likea motorcycle?

A I could see clearly big vehicles but not small vehicles like a motorcycle.

Q Like the motorcycle of Rogelio Monterola?

A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp. 26-30) (p. 15, Appellant'sbrief).

Tano should not have made a left turn under the conditions admitted by him. Under the LandTransportation and Traffic Code, the driver of any vehicle upon a highway, before starting, stopping orturning from a direct line, is called upon to first see that such movement can be made in safety, andwhenever the operation of any other vehicle approaching may be affected by such movement, shallgive a signal plainly visible to the driver of such other vehicles of the intention to make such movement(Sec. 44, R.A. 4136, as amended). This means that before a driver turns from a direct line, in this caseto the left, the driver must first see to it that there are no approaching vehicles and, if there are, to makethe turn only if it can be made in safety, or at the very least give a signal that is plainly visible to thedriver of such other vehicle. Tano did neither in this case, for he recklessly made a left turn even as


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visibility was still very poor, and thus failed to see the approaching motorcycle and warn the latter, of hisintention to make a left turn. This is plain and simple negligence.

In thus making the left turn, he placed his vehicle directly at the path of the motorcycle which, unawareof Tano's intention to make a left turn, smashed at Tano's vehicle. It was Tano's negligence that createdthe risk or the condition of danger that set into operation the event that led to the smashedup anduntimely death of Rogelio Monterola.

Rogelio Monterola's motorcycle would not have hit the cargo van had Tano, in operating it, notrecklessly turned left when visibility was still poor, and instead observed the direct line of the LandTransportation Code that before doing so, he should first see to it that such movement can be made insafety, and that whenever any other vehicle approaching may be affected by such movement, shouldgive a signal plainly visible to the driver of such other vehicle of the intention to make such movement.

That Rogelio Monterola was running fast despite poor visibility as evidenced by the magnitude of thedamage to the vehicles is no defense. His negligence would at most be contributory (Article 2179,N.C.C.). Having negligently created the condition of danger, defendants may not avoid liability bypointing to the negligence of the former.

xxx xxx xxx

Tano's proven negligence created a presumption of negligence on the part of his employer, the LBC AirCargo Corporation, in supervising its employees properly and adequately (Phoenix Construction, Inc.vs. Intermediate Appellate Court, supra), which may only be destroyed by proof of due diligence in theselection and supervision of his employees to prevent the damage (Article 2180, N.C.C.). No suchdefense was interposed by defendants in their answer.

We, however, fail to see Fernando Yu's liability as Manager of LBC-Mangagoy Branch Office, therebeing no employer-employee relationship between him and Jaime Tano who is a driver of the LBC AirCargo Inc. It was held in Philippine Rabbit Bus Lines Inc. et al. vs. Phil. American Forwarders, Inc., 63SCRA 231, that the term "Manager" in Article 2180 is used in the sense of "employer." Hence, notortuous or quasi-delictual liability can be fastened on Fernando Yu as branch manager of LBC AirCargo Inc.

Now for the amount of damages. Aside from the indemnity for death which has been pegged atP50,000.00 (Resolution En Banc, August 30, 1990, cited in People vs. Sazon, 189 SCRA 700), theevidence disclose that as a result of the accident, Rogelio Monterola's motorcycle was damaged, therepair cost of which amounted to P7,361.00 (Exh. E-1), for hospitalization, wake and burial expenses,plaintiff spent P15,000.00. There is likewise no question that by reason of Rogelio Monterola's untimelydeath, his only child 14 years old Sherwin Monterola, suffered mental anguish, fright, serious anxiety,wounded feelings and moral shock that entitles him to moral damages which we hereby fix atP20,000.00. Because of defendants' refusal to indemnify the plaintiff for his father's death, the latterwas compelled to litigate and engage the services of counsel. He is therefore entitled to an additionalamount of P10,000.00 for attorney's fees and expenses of litigation.

Considering, however, the contributory negligence of Rogelio Monterola in driving at a fast clip despitethe fact that the road was dusty, we reduce the aggregate amount of damages to which the plaintiff isentitled by twenty per cent (Phoenix Construction Inc. vs. Intermediate Appellate Court, Supra). 3

From every indication, the proximate cause of the accident was the negligence of Tano who, despite extremely poorvisibility, hastily executed a left turn (towards the Bislig airport road entrance) without first waiting for the dust tosettle. It was this negligent act of Tano, which had placed his vehicle (LBC van) directly on the path of themotorcycle coming from the opposite direction, that almost instantaneously caused the collision to occur. Simpleprudence required him not to attempt to cross the other lane until after it would have been safe from and clear of anyoncoming vehicle.

Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at times, as "supervening negligence"or as "discovered peril"). The doctrine, in essence, is to the effect that where both parties are negligent, but thenegligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whosefault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid theimpending harm and failed to do so is chargeable with the consequences thereof (see Picart vs. Smith, 37 Phil.809). Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude therecovery of damages for supervening negligence of, or bar a defense against the liability sought by, another if the


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latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence(Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs. IntermediateAppellate Court, 173 SCRA 464).

In the case at bench, the victim was traveling along the lane where he was rightly supposed to be. The incidentoccurred in an instant. No appreciable time had elapsed, from the moment Tano swerved to his left to the actualimpact; that could have afforded the victim a last clear opportunity to avoid the collision.

It is true however, that the deceased was not all that free from negligence in evidently speeding too closely behindthe vehicle he was following. We, therefore, agree with the appellate court that there indeed was contributorynegligence on the victim's part that could warrant a mitigation of petitioners liability for damages.

WHEREFORE, the appealed decision is AFFIRMED. Costs against petitioners.

SO ORDERED.

Feliciano, Romero, Melo and Francisco, JJ., concur.

Footnotes

1 Rollo, p. 17.

2 Rollo, pp. 30-31.

3 Rollo, pp. 51-55.



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Manila

FIRST DIVISION

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,vs.THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FELICIANO, J:

In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo Dionisio was onhis way home — he lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-dinner meeting with hisboss, the general manager of a marketing corporation. During the cocktails phase of the evening, Dionisio had taken"a shot or two" of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of GeneralLacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down GeneralLacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" andthereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by andregistered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side ofGeneral Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio'scar was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb)in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights norany so-called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump truck hadearlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission ofhis employer Phoenix, in view of work scheduled to be carried out early the following morning, Dionisio claimed thathe tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dumptruck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a"nervous breakdown" and loss of two gold bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that thelegal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truckentrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximatecause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under theinfluence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it hadexercised due rare in the selection and supervision of the dump truck driver.

The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the replacement ofthe lost dentures of plaintiff;

(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income forplaintiff brought about the accident in controversy and which is the result of the negligence of thedefendants;

(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the unexpectedand sudden withdrawal of plaintiff from his lifetime career as a marketing man; mental anguish,wounded feeling, serious anxiety, social humiliation, besmirched reputation, feeling of economicinsecurity, and the untold sorrows and frustration in life experienced by plaintiff and his family since theaccident in controversy up to the present time;

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(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard ofdefendants to settle amicably this case with the plaintiff before the filing of this case in court for asmaller amount.

(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees; and

(6) The cost of suit. (Emphasis supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed thedecision of the trial court but modified the award of damages to the following extent:

1. The award of P15,000.00 as compensatory damages was reduced to P6,460.71, thelatter being the only amount that the appellate court found the plaintiff to have proved asactually sustained by him;

2. The award of P150,000.00 as loss of expected income was reduced to P100,000.00,basically because Dionisio had voluntarily resigned his job such that, in the opinion of theappellate court, his loss of income "was not solely attributable to the accident in question;"and

3. The award of P100,000.00 as moral damages was held by the appellate court asexcessive and unconscionable and hence reduced to P50,000.00.

The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees andcosts remained untouched.

This decision of the Intermediate Appellate Court is now before us on a petition for review.

Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which thedump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that therewas negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause ofthe accident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised byCarbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dumptruck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashedinto the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisiowas "in some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made nofurther mention of it. We have examined the record both before the trial court and the Intermediate Appellate Courtand we find that both parties had placed into the record sufficient evidence on the basis of which the trial court andthe appellate court could have and should have made findings of fact relating to the alleged reckless manner inwhich Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there was negligencein the manner in which the dump truck was parked, that negligence was merely a "passive and static condition" andthat private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of theaccident and the injuries he sustained. The need to administer substantial justice as between the parties in thiscase, without having to remand it back to the trial court after eleven years, compels us to address directly thecontention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio's allegednegligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel.

There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had acurfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just beforethe collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contactwith the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d)whether Dionisio was intoxicated at the time of the accident.

As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisioimmediately after the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony ofPatrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatmentimmediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined themalong with the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any curfewpass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years after theaccident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to haveauthority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had a valid curfew pass. Thiscertification did not, however, specify any pass serial number or date or period of effectivity of the supposed curfew pass. We find that private respondent Dionisio wasunable to prove possession of a valid curfew pass during the night of the accident and that the preponderance of evidence shows that he did not have such a passduring that night. The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whetherDionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and possibly arrest by thepolice in the nearby police station for travelling after the onset of curfew without a valid curfew pass.


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On the second issue — whether or not Dionisio was speeding home that night — both the trial court and theappellate court were completely silent.

The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accidentalmost immediately after it occurred, the police station where he was based being barely 200 meters away.Patrolman Cuyno testified that people who had gathered at the scene of the accident told him that Dionisio's car was"moving fast" and did not have its headlights on. 2 Dionisio, on the other hand, claimed that he was travelling at amoderate speed at 30 kilometers per hour and had just crossed the intersection of General Santos and General Lacuna

Streets and had started to accelerate when his headlights failed just before the collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of therecognized exceptions to the hearsay rule since the facts he testified to were not acquired by him through officialinformation and had not been given by the informants pursuant to any duty to do so. Private respondent's objectionfails to take account of the fact that the testimony of Patrolman Cuyno is admissible not under the official recordsexception to the hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to thehearsay rule consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature soas to render inoperative the normal reflective thought processes of the observer and hence made as a spontaneous reaction

to the occurrence or event, and not the result of reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead ofnight is a sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers whohappened to be around at that time. The testimony of Patrolman Cuyno was therefore admissible as part of the resgestae and should have been considered by the trial court. Clearly, substantial weight should have been ascribed tosuch testimony, even though it did not, as it could not, have purported to describe quantitatively the precise velocityat winch Dionisio was travelling just before impact with the Phoenix dump truck.

A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentallymalfunctioned, just moments before the accident. The Intermediate Appellate Court expressly found that theheadlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It isthe petitioners' contention that Dionisio purposely shut off his headlights even before he reached the intersection soas not to be detected by the police in the police precinct which he (being a resident in the area) knew was not faraway from the intersection. We believe that the petitioners' theory is a more credible explanation than that offered byprivate respondent Dionisio — i.e., that he had his headlights on but that, at the crucial moment, these had in somemysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again at"bright" split seconds before contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence hereconsisted of the testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at thetime he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition. 7

This testimony has to be taken in conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor beforedinner with his boss that night. We do not believe that this evidence is sufficient to show that Dionisio was so heavily under

the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8 There simply is notenough evidence to show how much liquor he had in fact taken and the effects of that upon his physical faculties or upon hisjudgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affect different people differently.

The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio wasnegligent the night of the accident. He was hurrying home that night and driving faster than he should have been.Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streetsand thus did not see the dump truck that was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal andproximate cause of the accident and of Dionisio's injuries was the wrongful — or negligent manner in which thedump truck was parked in other words, the negligence of petitioner Carbonel. That there was a reasonablerelationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injurieson the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truckwas a natural and foreseeable consequence of the truck driver's negligence.

The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and thatprivate respondent Dionisio's negligence was an "efficient intervening cause and that consequently Dionisio'snegligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence ofCarbonel. We note that the petitioners' arguments are drawn from a reading of some of the older cases in variousjurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity forour jurisdiction. We note, firstly, that even in the United States, the distinctions between "cause" and "condition"


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which the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and Keetonmake this quite clear:

Cause and condition. Many courts have sought to distinguish between the active "cause" of the harmand the existing "conditions" upon which that cause operated. If the defendant has created only apassive static condition which made the damage possible, the defendant is said not to be liable. But sofar as the fact of causation is concerned, in the sense of necessary antecedents which have played animportant part in producing the result it is quite impossible to distinguish between active forces andpassive situations, particularly since, as is invariably the case, the latter are the result of other activeforces which have gone before. The defendant who spills gasoline about the premises creates a"condition," but the act may be culpable because of the danger of fire. When a spark ignites thegasoline, the condition has done quite as much to bring about the fire as the spark; and since that isthe very risk which the defendant has created, the defendant will not escape responsibility. Even thelapse of a considerable time during which the "condition" remains static will not necessarily affectliability; one who digs a trench in the highway may still be liable to another who fans into it a monthafterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction isnow almost entirely discredited. So far as it has any validity at all, it must refer to the type of casewhere the forces set in operation by the defendant have come to rest in a position of apparent safety,and some new force intervenes. But even in such cases, it is not the distinction between "cause" and"condition" which is important but the nature of the risk and the character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather anindispensable and efficient cause. The collision between the dump truck and the private respondent's car would inan probability not have occurred had the dump truck not been parked askew without any warning lights or reflectordevices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving downGeneral Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view,Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to theaccident, was not an efficient intervening or independent cause. What the Petitioners describe as an "interveningcause" was no more than a foreseeable consequent manner which the truck driver had parked the dump truck. Inother words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not toimpose upon them the very risk the truck driver had created. Dionisio's negligence was not of an independent andoverpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dumptruck and the accident, nor to sever the juris vinculum of liability. It is helpful to quote once more from Professor andKeeton:

Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience isreasonably to be anticipated or one which the defendant has reason to anticipate under the particularcircumstances, the defendant may be negligence among other reasons, because of failure to guardagainst it; or the defendant may be negligent only for that reason. Thus one who sets a fire may berequired to foresee that an ordinary, usual and customary wind arising later wig spread it beyond thedefendant's own property, and therefore to take precautions to prevent that event. The person wholeaves the combustible or explosive material exposed in a public place may foresee the risk of fire fromsome independent source. ... In all of these cases there is an intervening cause combining with thedefendant's conduct to produce the result and in each case the defendant's negligence consists infailure to protect the plaintiff against that very risk.

Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial andimportant part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass.Foreseeable intervening forces are within the scope original risk, and hence of the defendant'snegligence. The courts are quite generally agreed that intervening causes which fall fairly in thiscategory will not supersede the defendant's responsibility.

Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity,including all ordinary forces of nature such as usual wind or rain, or snow or frost or fog or evenlightning; that one who leaves an obstruction on the road or a railroad track should foresee that avehicle or a train will run into it; ...

The risk created by the defendant may include the intervention of the foreseeable negligence of others.... [The standard of reasonable conduct may require the defendant to protect the plaintiff against 'thatoccasional negligence which is one of the ordinary incidents of human life, and therefore to beanticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to walk in a streetwhere the plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run


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down by a car, even though the car is negligently driven; and one who parks an automobile on thehighway without lights at night is not relieved of responsibility when another negligently drives into it. ---10

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximatecause" of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio mayrecover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of thePhilippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitionersis that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" ofavoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" mustbear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction byPicart vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of thatdoctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule ofcontributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with thewrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligentprovided that the defendant had the last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law lastclear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itselfbeen rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix andutilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's —was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology orphysics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relativelocation in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of therelevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent actor omission of each party and the character and gravity of the risks created by such act or omission for the rest ofthe community. The petitioners urge that the truck driver (and therefore his employer) should be absolved fromresponsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligencewhich had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission.To accept this proposition is to come too close to wiping out the fundamental principle of law that a man mustrespond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks toreduce the risks and burdens of living in society and to allocate them among the members of society. To accept thepetitioners' pro-position must tend to weaken the very bonds of society.

Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcomethis presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be doneearly the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked whenaway from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisioon one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of substantial justice aresatisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 asexemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitionersCarbonel and Phoenix who shall be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively bythe petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made bythe respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount ofcompensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by20% of such amount. Costs against the petitioners.

SO ORDERED.

Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.

Melencio-Herrera, J., is on leave.

Footnotes

1 TSN, 16 March 1978, pp. 25-26.

2 TSN, 16 March 1978, p. 13.

3 TSN, 23 February 1977, pp. 13-14; TSN, 7 October 1977, pp. 24-25.


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4 Rule 130, Section 38,

5 Rules of Court. Rule 130, Section 36, Rules of Court.

6 People v. Berame, 72 SCRA 184 [1976]; McCormick on Evidence, Section 297 [3rd ed., 1984].

7 TSN, 16 March 1978, pp. 18-19.

8 Compare Wright v. Manila Railroad Co., 28 Phil. 116 (1914), where it was held, among others, that"[m]ere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinarycare. It is but a circumstance to be considered with the other evidence tending to prove negligence. "Id, at 125.

9 The Law on Torts [5th ed. 1984], pp. 277-278; emphasis supplied; footnotes omitted.

10 Ibid., pp. 303-305; emphasis supplied; footnotes omitted.

11 37 Phil. 809 (1918).

12 Prosser & Keeton, supra note 9, p. 464 and note 11.

13 See Rakes v. Manila Railroad Co., 7 Phil. 359, at 370 (1907).

14 MacIntyre The Rationale of Last Clear Chance, 53 Harv. L. Rev. 1225 (1940) and James Last ClearChance: A Transitional Doctrine, 47 Yale L.J. 704 (1938).

15 See Rakes, 7 Phil. at 374.

16 Poblete v. Fabros, 93 SCRA 202 (1979); Umali v. Bacani, 69 SCRA 263 (1976); and Saludares v.Martinez, 29 SCRA 745 (1969).

17 See Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359, 370375 (1907), where the Court allocatedthe damages on a 50-50 basis between plaintiff and defendant applying the notion of comparativenegligence or proportional damages. Cf. Taylor v. Manila Electric Railroad and Light Co., 16 Phil. 8 at29 (1910).

18 Lanuzo v. Ping, 100 SCRA 205 (1980).



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Manila

EN BANC

G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-appellants,vs.CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.

Ross, Selph, Carrascoso and Janda for the respondents.Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of theCourt of First Instance of Manila dismissing petitioners' second amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon ofMarch 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue,Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at theopening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned severalneighboring houses, including the personal properties and effects inside them. Their owners, among thempetitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the stationand the second as its agent in charge of operation. Negligence on the part of both of them was attributed as thecause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents hadexercised due care in the premises and with respect to the supervision of their employees.

The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Policeand Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first tworeports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferringgasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Stationlocated at the corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted acigarette and threw the burning match stick near the main valve of the said underground tank. Due tothe gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the gasolinehose connecting the truck with the underground tank prevented a terrific explosion. However, theflames scattered due to the hose from which the gasoline was spouting. It burned the truck and thefollowing accessorias and residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola andcigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and whichis submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rackwhich according to information gathered in the neighborhood contained cigarettes and matches, installedbetween the gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the


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gasoline station and what the chief of the fire department had told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. Thisruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court withoutobjection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which appearssigned by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness butrespondents waived their right to cross-examine him although they had the opportunity to do so; and thirdly, that inany event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, nowRule 130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp.167-170) shows that the reports in question, when offered as evidence, were objected to by counsel for each ofrespondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent."Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of theothers, including the disputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did nottestify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was oneof those who investigated "the location of the fire and, if possible, gather witnesses as to the occurrence, and that hebrought the report with him. There was nothing, therefore, on which he need be cross-examined; and the contents ofthe report, as to which he did not testify, did not thereby become competent evidence. And even if he had testified,his testimony would still have been objectionable as far as information gathered by him from third persons wasconcerned.

Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on theircontents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made in theperformance of his duty by a public officer of the Philippines, or by a person in the performance of a duty speciallyenjoined by law, are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a publicofficer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in theperformance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c)that the public officer or other person had sufficient knowledge of the facts by him stated, which must have beenacquired by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p.398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in thereports as to the cause and circumstances of the fire were not within the personal knowledge of the officers whoconducted the investigation. Was knowledge of such facts, however, acquired by them through official information?As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred toas an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from whichgasoline was being transferred at the time to the underground tank of the station; and to respondent MateoBoquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify theirstatements as "official information" acquired by the officers who prepared the reports, the persons who made thestatements not only must have personal knowledge of the facts stated but must have the duty to give suchstatements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquiredby the reporting officers through official information, not having been given by the informants pursuant to any duty todo so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsaloquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the appellatecourt refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in thePhilippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in appropriatecases, "in the case at bar, however, we find no practical use for such doctrine." The question deserves more thansuch summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs.Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of theCourt of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass


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between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without anywind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power andDevelopment Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of theplaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carriedby the wire and was knocked unconscious to the ground. The electric charge coursed through his body andcaused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts andcausing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947,over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act ofnegligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. Whileit is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, theburden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of thedefendant, it is also a recognized principal that "where the thing which caused injury, without fault of theinjured person, is under the exclusive control of the defendant and the injury is such as in the ordinary courseof things does not occur if he having such control use proper care, it affords reasonable evidence, in theabsence of the explanation, that the injury arose from defendant's want of care."

And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (SanJuan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsaloquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it isunquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the solecontrol of defendant company. In the ordinary course of events, electric wires do not part suddenly in fairweather and injure people, unless they are subjected to unusual strain and stress or there are defects in theirinstallation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windowsto injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299,the leading case that established that rule). Consequently, in the absence of contributory negligence (which isadmittedly not present), the fact that the wire snapped suffices to raise a reasonable presumption ofnegligence in its installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if thereare any facts inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court,but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar.Gasoline is a highly combustible material, in the storage and sale of which extreme care must be taken. On theother hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of man. A casestrikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to theShell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease,while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum Corporation,to the underground tank of the station, a fire started with resulting damages to the building owned by Jones.Alleging that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporationfor the recovery of that amount. The judge of the district court, after hearing the testimony, concluded thatplaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals forthe First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certaintyany negligence on the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiffapplied to this Court for a Writ of Review which was granted, and the case is now before us for decision.1äwphï 1. ñët

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and theother relating to the spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placedon the stand by the defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the recordthat the filling station and the tank truck were under the control of the defendant and operated by its agents oremployees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in theunderground tank attached to the filling station while it was being filled from the tank truck and while both thetank and the truck were in charge of and being operated by the agents or employees of the defendant,


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extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escapinggasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause ofthe fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur.There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of defendant orhis servants and the accident is such as in the ordinary course of things does not happen if those who haveits management or control use proper care, it affords reasonable evidence, in absence of explanation bydefendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of lastresort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.:Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all itsappliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread toand burned the neighboring houses. The persons who knew or could have known how the fire started wereappellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonableinference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the followingappears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lotapproximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within avery busy business district near the Obrero Market, a railroad crossing and very thickly populatedneighborhood where a great number of people mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute asecondary hazard to its operation which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south and westadjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping overit in case of fire.

Records show that there have been two cases of fire which caused not only material damages butdesperation and also panic in the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operatoras a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to thepossible outbreak of fire at this already small but crowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of hisown personal observation of the facts reported, may properly be considered as an exception to the hearsay rule.These facts, descriptive of the location and objective circumstances surrounding the operation of the gasolinestation in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on theirface they called for more stringent measures of caution than those which would satisfy the standard of due diligenceunder ordinary circumstances. There is no more eloquent demonstration of this than the statement of LeandroFlores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and withoutassistance, was transferring the contents thereof into the underground storage when the fire broke out. He said:"Before loading the underground tank there were no people, but while the loading was going on, there were peoplewho went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to theunderground tank." He added that when the tank was almost filled he went to the tank truck to close the valve, andwhile he had his back turned to the "manhole" he, heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent


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omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent theflames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height itconsisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to intenseheat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with respect tothe spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "thefire was caused through the acts of a stranger who, without authority, or permission of answering defendant, passedthrough the gasoline station and negligently threw a lighted match in the premises." No evidence on this point wasadduced, but assuming the allegation to be true — certainly any unfavorable inference from the admission may betaken against Boquiren — it does not extenuate his negligence. A decision of the Supreme Court of Texas, uponfacts analogous to those of the present case, states the rule which we find acceptable here. "It is the rule that thosewho distribute a dangerous article or agent, owe a degree of protection to the public proportionate to andcommensurate with a danger involved ... we think it is the generally accepted rule as applied to torts that 'if theeffects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the factthat the active and substantially simultaneous operation of the effects of a third person's innocent, tortious orcriminal act is also a substantial factor in bringing about the harm, does not protect the actor from liability.'(Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen andunexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligencedirectly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver'sGas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends onwhether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. Thisquestion, in the light of the facts not controverted, is one of law and hence may be passed upon by this Court. Thesefacts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex ownedthe gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in the management ofthe state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it; and(5) the license to store gasoline at the station was in the name of Caltex, which paid the license fees. (ExhibitT-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers toremove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in hisemploy, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is truethat Boquiren later on amended his answer, and that among the changes was one to the effect that he was notacting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint theground alleged was that it stated no cause of action since under the allegations thereof he was merely acting asagent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground isdeemed to be an admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the businessconducted at the service station in question was owned and operated by Boquiren. But Caltex did not present anycontract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must have beenone in existence at that time. Instead, what was presented was a license agreement manifestly tailored for purposesof this case, since it was entered into shortly before the expiration of the one-year period it was intended to operate.This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as ofJanuary 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quitesignificant, and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility withrespect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or property while inthe property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee,representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor.Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises andall the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment wassubject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as licenseewithout the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December 31,1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time canceland terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business withdue diligence, in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex butnot to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren. The controlwas such that the latter was virtually an employee of the former.


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Taking into consideration the fact that the operator owed his position to the company and the latter couldremove him or terminate his services at will; that the service station belonged to the company and bore itstradename and the operator sold only the products of the company; that the equipment used by the operatorbelonged to the company and were just loaned to the operator and the company took charge of their repairand maintenance; that an employee of the company supervised the operator and conducted periodicinspection of the company's gasoline and service station; that the price of the products sold by the operatorwas fixed by the company and not by the operator; and that the receipts signed by the operator indicated thathe was a mere agent, the finding of the Court of Appeals that the operator was an agent of the company andnot an independent contractor should not be disturbed.

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

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

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices werepresented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to provethe same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground thatArticle 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the insured, wasnot yet in effect when the loss took place. However, regardless of the silence of the law on this point at that time, theamount that should be recovered be measured by the damages actually suffered, otherwise the principle prohibitingunjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by thelower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding thetestimony of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since itis of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value,and in this case should not prevail over positive evidence of such value. The heirs of Ong are therefore entitled toP10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily toappellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interestfrom the filing of the complaint, and costs.

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

Footnotes

1Thus, for instance, the record of a justice of the peace of marriage certificates transmitted to him by thecorresponding priest is admissible. The justice of the peace has no personal knowledge of the marriage, but itwas reported to him by a priest whose duty it was, under the law, to make the report for record purposes.Similarly, the tax records of a provincial assessor are admissible even if the assessments were made bysubordinates. So also are entries of marriages made by a municipal treasurer in his official record, becausehe acquires knowledge thereof by virtue of a statutory duty on the part of those authorized to solemnizemarriages to send a copy of each marriage contract solemnized by them to the local civil registrar. (SeeMoran, Comments on the Rules of Court, Vol. 3 [1957] pp. 389-395.)


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Manila

THIRD DIVISION

G.R. No. L-52732 August 29, 1988

F.F. CRUZ and CO., INC., petitioner,vs.THE COURT OF APPEALS, GREGORIO MABLE as substituted by his wife LUZ ALMONTE MABLE andchildren DOMING, LEONIDAS, LIGAYA, ELENA, GREGORIO, JR., SALOME, ANTONIO, and BERNARDO allsurnamed MABLE, respondents.

Luis S. Topacio for petitioner.

Mauricio M. Monta for respondents.

CORTES, J.:

This petition to review the decision of the Court of Appeals puts in issue the application of the common law doctrineof res ipsa loquitur.

The essential facts of the case are not disputed.

The furniture manufacturing shop of petitioner in Caloocan City was situated adjacent to the residence of privaterespondents. Sometime in August 1971, private respondent Gregorio Mable first approached Eric Cruz, petitioner'splant manager, to request that a firewall be constructed between the shop and private respondents' residence. Therequest was repeated several times but they fell on deaf ears. In the early morning of September 6, 1974, fire brokeout in petitioner's shop. Petitioner's employees, who slept in the shop premises, tried to put out the fire, but theirefforts proved futile. The fire spread to private respondents' house. Both the shop and the house were razed to theground. The cause of the conflagration was never discovered. The National Bureau of Investigation foundspecimens from the burned structures negative for the presence of inflammable substances.

Subsequently, private respondents collected P35,000.00 on the insurance on their house and the contents thereof.

On January 23, 1975, private respondents filed an action for damages against petitioner, praying for a judgment intheir favor awarding P150,000.00 as actual damages, P50,000.00 as moral damages, P25,000.00 as exemplarydamages, P20,000.00 as attorney's fees and costs. The Court of First Instance held for private respondents:

WHEREFORE, the Court hereby renders judgment, in favor of plaintiffs, and against the defendant:

1. Ordering the defendant to pay to the plaintiffs the amount of P80,000.00 for damages suffered bysaid plaintiffs for the loss of their house, with interest of 6% from the date of the filing of the Complainton January 23, 1975, until fully paid;

2. Ordering the defendant to pay to the plaintiffs the sum of P50,000.00 for the loss of plaintiffs'furnitures, religious images, silverwares, chinawares, jewelries, books, kitchen utensils, clothing andother valuables, with interest of 6% from date of the filing of the Complaint on January 23, 1975, untilfully paid;

3. Ordering the defendant to pay to the plaintiffs the sum of P5,000.00 as moral damages, P2,000.00as exemplary damages, and P5,000.00 as and by way of attorney's fees;

4. With costs against the defendant;

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5. Counterclaim is ordered dismissed, for lack of merit. [CA Decision, pp. 1-2; Rollo, pp. 29-30.]

On appeal, the Court of Appeals, in a decision promulgated on November 19, 1979, affirmed the decision of the trialcourt but reduced the award of damages:

WHEREFORE, the decision declaring the defendants liable is affirmed. The damages to be awarded toplaintiff should be reduced to P70,000.00 for the house and P50,000.00 for the furniture and otherfixtures with legal interest from the date of the filing of the complaint until full payment thereof. [CADecision, p. 7; Rollo, p. 35.]

A motion for reconsideration was filed on December 3, 1979 but was denied in a resolution dated February 18,1980. Hence, petitioner filed the instant petition for review on February 22, 1980. After the comment and reply werefiled, the Court resolved to deny the petition for lack of merit on June 11, 1980.

However, petitioner filed a motion for reconsideration, which was granted, and the petition was given due course onSeptember 12, 1980. After the parties filed their memoranda, the case was submitted for decision on January 21,1981.

Petitioner contends that the Court of Appeals erred:

1. In not deducting the sum of P35,000.00, which private respondents recovered on the insurance on their house,from the award of damages.

2. In awarding excessive and/or unproved damages.

3. In applying the doctrine of res ipsa loquitur to the facts of the instant case.

The pivotal issue in this case is the applicability of the common law doctrine of res ipsa loquitur, the issue ofdamages being merely consequential. In view thereof, the errors assigned by petitioner shall be discussed in thereverse order.

1. The doctrine of res ipsa loquitur, whose application to the instant case petitioner objects to, may be stated asfollows:

Where the thing which caused the injury complained of is shown to be under the management of thedefendant or his servants and the accident is such as in the ordinary course of things does not happenif those who have its management or control use proper care, it affords reasonable evidence, in theabsence of explanation by the defendant, that the accident arose from want of care. [Africa v. Caltex(Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA 448.]

Thus, in Africa, supra, where fire broke out in a Caltex service station while gasoline from a tank truck was beingunloaded into an underground storage tank through a hose and the fire spread to and burned neighboring houses,this Court, applying the doctrine of res ipsa loquitur, adjudged Caltex liable for the loss.

The facts of the case likewise call for the application of the doctrine, considering that in the normal course ofoperations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint, varnish andfuel and lubricants for machinery may be found thereon.

It must also be noted that negligence or want of care on the part of petitioner or its employees was not merelypresumed. The Court of Appeals found that petitioner failed to construct a firewall between its shop and theresidence of private respondents as required by a city ordinance; that the fire could have been caused by a heatedmotor or a lit cigarette; that gasoline and alcohol were used and stored in the shop; and that workers sometimessmoked inside the shop [CA Decision, p. 5; Rollo, p. 33.]

Even without applying the doctrine of res ipsa loquitur, petitioner's failure to construct a firewall in accordance withcity ordinances would suffice to support a finding of negligence.

Even then the fire possibly would not have spread to the neighboring houses were it not for anothernegligent omission on the part of defendants, namely, their failure to provide a concrete wall highenough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 metershigh, and beyond that height it consisted merely of galvanized iron sheets, which would predictablycrumble and melt when subjected to intense heat. Defendant's negligence, therefore, was not only withrespect to the cause of the fire but also with respect to the spread thereof to the neighboring houses.[Africa v. Caltex (Phil.), Inc., supra; Emphasis supplied.]


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In the instant case, with more reason should petitioner be found guilty of negligence since it had failed to construct afirewall between its property and private respondents' residence which sufficiently complies with the pertinent cityordinances. The failure to comply with an ordinance providing for safety regulations had been ruled by the Court asan act of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.]

The Court of Appeals, therefore, had more than adequate basis to find petitioner liable for the loss sustained byprivate respondents.

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

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

3. While this Court finds that petitioner is liable for damages to private respondents as found by the Court ofAppeals, the fact that private respondents have been indemnified by their insurer in the amount of P35,000.00 forthe damage caused to their house and its contents has not escaped the attention of the Court. Hence, the Courtholds that in accordance with Article 2207 of the Civil Code the amount of P35,000.00 should be deducted from theamount awarded as damages. Said article provides:

Art. 2207. If the plaintiffs property has been insured, and he has received indemnity from the insurancecompany for the injury or loss arising out of the wrong or breach of contract complained of, theinsurance company is subrogated to the rights of the insured against the wrongdoer or the person whoviolated the contract. If the amount paid by the insurance company does not fully cover the injury orloss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss orinjury. (Emphasis supplied.]

The law is clear and needs no interpretation. Having been indemnified by their insurer, private respondents are onlyentitled to recover the deficiency from petitioner.

On the other hand, the insurer, if it is so minded, may seek reimbursement of the amount it indemnified privaterespondents from petitioner. This is the essence of its right to be subrogated to the rights of the insured, asexpressly provided in Article 2207. Upon payment of the loss incurred by the insured, the insurer is entitled to besubrogated pro tanto to any right of action which the insured may have against the third person whose negligence orwrongful act caused the loss [Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976,70 SCRA 323.]

Under Article 2207, the real party in interest with regard to the indemnity received by the insured is the insurer [Phil.Air Lines, Inc. v. Heald Lumber Co., 101 Phil. 1031, (1957).] Whether or not the insurer should exercise the rights ofthe insured to which it had been subrogated lies solely within the former's sound discretion. Since the insurer is nota party to the case, its identity is not of record and no claim is made on its behalf, the private respondent's insurerhas to claim his right to reimbursement of the P35,000.00 paid to the insured.

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals is hereby AFFIRMED with the followingmodifications as to the damages awarded for the loss of private respondents' house, considering their receipt ofP35,000.00 from their insurer: (1) the damages awarded for the loss of the house is reduced to P35,000.00; and (2)the right of the insurer to subrogation and thus seek reimbursement from petitioner for the P35,000.00 it had paidprivate respondents is recognized.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.



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Manila

THIRD DIVISION

G.R. No. 118231 July 5, 1996

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners,vs.COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents.

DAVIDE, JR., J.:p

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of thistrust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then alreadyprovided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on

the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand." 2 Subsequently,

Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of treatment which according tomy ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous.. . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all menat all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the

medical profession if the preservation of life and maintenance of the health of the people. 4

Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, hemust be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out bythe ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which

reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil CaseNo. 9492.

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

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City fromJanuary 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Headof the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's privatepatient sometime before September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy whowas also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and somestudent nurses performed a simple caesarean section on Mrs. Villegas at the Negros OrientalProvincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988Mrs. Villegas checked out of the Hospital. . . and on that same day she paid Dr. Batiquin, thru thelatter's secretary, the amount of P1,500.00 as "professional fee". . . .

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of beingfeverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who

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prescribed for her certain medicines. . . which she had been taking up to December, 1988.

In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . .certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week ofNovember, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.

The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite themedications administered by Dr. Batiquin. When the pains became unbearable and she was rapidlylosing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City onJanuary 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child'sHospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Uponexamination she felt an abdominal mass one finger below the umbilicus which she suspected to beeither a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-raytaken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood countshowed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all thoseexaminations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which thelatter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, anovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus,and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body"looked like a piece of a "rubber glove". . . and which is [sic] also "rubber-drain like". . . . It could havebeen a torn section of a surgeon's gloves or could have come from other sources. And this foreignbody was the cause of the infection of the ovaries and consequently of all the discomfort suffered byMrs. Villegas after her delivery on September 21, 1988. 7

The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court,and although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, 8 it was not

mentioned in the pathologist's Surgical Pathology Report. 9

Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a

Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14 The trialcourt, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or personswho prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical Certificate(Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her

signature on some of them to express her agreement thereto. . . ." 15 The trial court also refused to give weight to Dr. Kho's

testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, 16 as could begleaned from her statement, thus:

A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goeswith the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece ofrubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial courtnoted, was never denied nor disputed by Dr. Kho, leading it to conclude:

There are now two different versions on the whereabouts of that offending "rubber" — (1) that it wassent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away astold by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve onlyto weaken their claim against Defendant Batiquin. 19

All told, the trial court held in favor of the petitioners herein.

The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the privaterespondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece ofrubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of thetrial court, holding:

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. Thetrial court itself had narrated what happened to appellant Flotilde after the caesarean operation made


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by appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy.Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside herabdomen. Both appellant; testified that after the operation made by appellee doctor, they did not go toany other doctor until they finally decided to see another doctor in January, 1989 when she was notgetting any better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on thewitness stand that she alone decided when to close the operating area; that she examined the portionshe operated on before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquinwould have found the rubber and removed it before closing the operating area. 20

The appellate court then ruled:

Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A)plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. Gand G-2)] for the second operation that saved her life.

For the miseries appellants endured for more than three (3) months, due to the negligence of appelleeDr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages inthe amount of P20,000.00 and attorney's fees in the amount of P25,000.00.

The fact that appellant Flotilde can no longer bear children because her uterus and ovaries wereremoved by Dr. Kho is not taken into consideration as it is not shown that the removal of said organswere the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established isthat the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy andcaused appellant fear, worry and anxiety. . . .

WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SETASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellantsthe amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages;P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs oflitigation.

SO ORDERED. 21

From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committedgrave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceededits discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured withcontradictions and falsities.

The private respondents commented that the petition raised only questions of fact, which were not proper for reviewby this Court.

While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions,among which are when the factual findings of the trial court and the appellate court conflict, when the appealeddecision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts. 22

After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho'stestimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho'stestimony:

Q What is the purpose of the examination?

A Just in case, I was just thinking at the back of my mind, just in case this would turn outto be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] aforeign body that goes with the tissues but unluckily I don't know where the rubber was. Itwas not in the Lab, it was not in Cebu. 23 (emphasis supplied)

The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge ofthe piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that theunderscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trialcourt should have likewise considered the other portions of Dr. Kho's testimony, especially the following:

Q So you did actually conduct the operation on her?

A Yes, I did.


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Q And what was the result?

A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen,there was an ovarian cyst on the left and side and there was also an ovarian cyst on theright which, on opening up or freeing it up from the uterus, turned out to be pus. Bothovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back of theuterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found a[piece of] rubber on the rightside. 24

We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Khosaw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then toCebu City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of apiece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based onother than first-hand knowledge for, as she asserted before the trial court:

Q But you are sure you have seen [the piece of rubber]?

A Oh yes. I was not the only one who saw it. 26

The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin'sclaim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said thatthere was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to,and hence, the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr.Batiquin's statement cannot belie the fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. Andeven if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to CebuCity, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen.On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve histestimony with respect to other facts. And it has been aptly said that even when a witness is found to have deliberatelyfalsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such

portions thereof deemed worthy of belief may be credited. 29

It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that norubber drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the operation

nor blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the absence of a

rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. 32

But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies.

Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the petitioners advocate,such positive testimony must come from a credible source, which leads us to the second assigned error.

While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the saidtestimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout herturn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leavingher trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of carewith which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting ourappraisal of Dr. Kho's trustworthiness:

This is not to say that she was less than honest when she testified about her findings, but it can also besaid that she did not take the most appropriate precaution to preserve that "piece of rubber" as aneloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] tohave anticipated. 35

Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubberwas indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of thepetitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature andoperation of this doctrine:

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to beunder the management of the defendant, and the accident is such as in the ordinary course of thingsdoes not happen in those who have the management use proper care, it affords reasonable evidence,in the absence of an explanation by the defendant, that the accident arose from want of care." Or as


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Black's Law Dictionary puts it:

Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference thatdefendant was negligent, which arises upon proof that [the] instrumentality causing injurywas in defendant's exclusive control, and that the accident was one which ordinary doesnot happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence wherebynegligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the]accident happened provided [the] character of [the] accident and circumstances attendingit lead reasonably to belief that in [the] absence of negligence it would not have occurredand that thing which caused injury is shown to have been under [the] management andcontrol of [the] alleged wrongdoer. . . . Under [this] doctrine. . . the happening of an injury permits an inference of negligence where plaintiff producessubstantial evidence that [the] injury was caused by an agency or instrumentality under[the] exclusive control and management of defendant, and that the occurrence [sic] wassuch that in the ordinary course of things would not happen if reasonable care had beenused.

xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligencewhich recognizes that prima facie negligence may be established without direct proof andfurnishes a substitute for specific proof of negligence. The doctrine is not a rule ofsubstantive law, but merely a mode of proof or a mere procedural convenience. The rule,when applicable to the facts and circumstances of a particular case, is not intended to anddoes not dispense with the requirement of proof of culpable negligence on the partycharged. It merely determines and regulates what shall be prima facie evidence thereofand facilitates the burden of plaintiff of proving a breach of the duty of due care. Thedoctrine can be invoked when and only when, under the circumstances involved, directevidence is absent and not readily available. 36

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of thecaesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereftof direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into privaterespondent Villegas's body, which, needless to say, does not occur unless through the intersection of negligence.Second, since aside from the caesarean section, private respondent Villegas underwent no other operation whichcould have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could onlyhave been a by-product of the caesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed toovercome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin istherefore liable for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for allthe adverse effects thereof.

As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of thepeople, 37 and the State's compelling interest to enact measures to protect the public from "the potentially deadly effects of

incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." 38 Indeed,a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent

and skill." 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her

profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in general, 40 and

members of the medical profession, 41 in particular.

WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is herebyAFFIRMED in toto.

Costs against the petitioners.

SO ORDERED.

Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur.

Footnotes

1 Implemented in Babylon, ca. 2250 B.C.

2 See L.J. REGAN, DOCTOR AND PATIENT AND THE LAW, 2d. ed. [1949], 34.


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3 460-377 B.C.

4 P. SOLIS, MEDICAL JURISPRUDENCE [1988 ed.], 5.

5 Appendix "A" of Petition; Rollo, 12-22. Per Austria-Martinez, M.A., J., with Marigomen, A., and Reyes, R.JJ., concurring.

6 Original Records (OR), 260-272. Per Judge Enrique C. Garrovillo.

7 OR, 261-264.

8 TSN, 12 July 1990, 49.

9 Id., 50-51.

10 OR, 132.

11 Id., 135-137.

12 Id., 138.

13 Id., 139-140.

14 Id., 141.

15 Id., 268.

16 Id., 266.

17 TSN, 12 July 1990, 49.

18 OR, 269.

19 Id.

20 Rollo, 20.

21 Id., 21.

22 Remalante vs. Tibe, 158 SCRA 138, 145 [1988]; Medina vs. Asistio, 191 SCRA 218, 223-224 [1990];Borillo vs. Court of Appeals, 209 SCRA 130, 140-141 [1992]; Director of Lands vs. Intermediate AppellateCourt, 209 SCRA 214, 221 [1992]; Margolles vs. Court of Appeals, 230 SCRA 97, 106 [1994].

23 TSN, 12 July 1990, 49.

24 TSN, 12 July 1990, 9.

25 Id., 10-49.

26 TSN, 12 July 1990, 10.

27 RICARDO J. FRANCISCO, Evidence, 255 [1993].

28 People vs. Laurente, G.R. No. 116734, 29 March 1996, at 24, citations omitted.

29 People vs. Ducay, 225 SCRA 1, 14 [1993]; People vs. Cañeja, 235 SCRA 328, 337 [1994].

30 TSN, 31 August 1990, 20.

31 Id., 21.

32 TSN, 10 September 1990, 5.

33 People vs. Antonio, 233 SCRA 283, 299 [1994].

34 See People vs. De Leon, 245 SCRA 538, 545 [1995]; People vs. Malunes, 247 SCRA 317, 326-327[1995].


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35 OR, 267.

36 Layugan vs. Intermediate Appellate Court, 167 SCRA 363, 376-377 [1988]. See discussions in Martinezvs. Van Buskirk, 18 Phil. 79, 85-86 [1910]; Africa vs. Caltex (Phil.) Inc., 16 SCRA 448, 454-456 [1966]; F.F.Cruz and Co., Inc. vs. Court of Appeals, 164 SCRA 731, 736 [1988].

37 Department of Education, Culture, and Sports vs. San Diego, 180 SCRA 533, 538 [1989].

38 Tablarin vs. Gutierrez, 152 SCRA 730, 743, [1987].

39 Section 3, Article 1, 1960 Code of Ethics of the Medical Profession in the Philippines, as cited in Carillo vs.People, 229 SCRA 386, 396 [1994].

40 Culion Ice, Fish & Elec. Co. vs. Phil. Motors Corporation, 55 Phil. 129-133 [1930].

41 Stevenson vs. Yates, 208 SW 820 [1919]; Kennedy vs. Parrott, 90 SE 2d 754 [1956]; DeLaughter vs.Womack, 164 So 2d 762 [1994]; Hill vs. Stewart, 209 So 2d 809 [1968].



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