Torts IV Causation

7/29/2019 Torts IV Causation

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G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDOBATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,vs.MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.Fortunato Jose for defendant and appellant.

MONTEMAYOR, J .:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendantMariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City,driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver andconductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated tothe right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya,apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated justbehind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdictionof Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the rightside of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others hadto be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan

and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers,after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help fromBataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not thepassengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricateand rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in theneighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wickon one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almostimmediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. Itwould appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of thechassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lightedtorch brought by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that

of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages andattorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to theplaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, butthe latter endorsed the appeal to us because of the value involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound toobserve extraordinary diligence in the vigilance over the goods and for the safety of the passengers transportedby them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745,Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight canprovide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles1733 and 1755



ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willfulacts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a goodfather of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the

diligence of a good father of a family could have prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the MedinaTransportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial courtthat there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to showthat at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the factthat according to the testimony of the witnesses, including that of the defense, from the point where one of the front tiresburst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur,after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the busmust have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turnedturtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree.

The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, butrather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the timethe fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damageswere awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, producesthe injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legalcause is that acting first and producing the injury, either immediately or by setting other events in motion, allconstituting a natural and continuous chain of events, each having a close causal connection with its immediatepredecessor, the final event in the chain immediately effecting the injury as a natural and probable result of thecause which first acted, under such circumstances that the person responsible for the first event should, as an

ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default thatan injury to some person might probably result therefrom.

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physicalinjuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contendthat the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under thecircumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus,this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasolinefrom the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the callfor help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and thatbecause it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did froma rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should

innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the comingof the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed tothe negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position inwhich the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in andaround the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directedeven from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warnthe rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier comeunder the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the deceased, as well as theother elements entering into a damage award, we are satisfied that the amount of SIX THOUSAND (P6,000) PESOS



would constitute satisfactory compensation, this to include compensatory, moral, and other damages. We also believethat plaintiffs are entitled to attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only inthe trial court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney'sfees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the deceased in thebus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengerswho, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendantMariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said

inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, hehad been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goesto prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of hispassengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably,despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason tobelieve that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physicalinjuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motionof the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whosetestimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court tothe effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued,this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONETHOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHTHUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed isfrom hereby affirmed, with costs.

G.R. No. 92087 May 8, 1992

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, namely: ALBERTO &ROBERTO, all surnamed FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA BERTULANO, in her behalfand as the legal guardian of her minor children, namely: EDUARDO, ROLANDO, DANIEL, AND JOCELYN, allsurnamed BERTULANO, PRIMITIVA FAJARDO in her behalf and as legal guardian of her minor children, namely:GILBERT, GLEN, JOCELYN AND JOSELITO, all surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf and

as guardian ad litem , of her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE and GERRY, allsurnamed LIAGOSO, petitioners,vs.THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari praying that the amended decision of the Court of Appeals dated January 11,1990 in CA-G.R. No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City of Davao," be reversed and that itsoriginal decision dated January 31, 1986 be reinstated subject to the modification sought by the petitioners in their motionfor partial reconsideration dated March 6, 1986.

The antecedent facts are briefly narrated by the trial court, as follows:

From the evidence presented we see the following facts: On November 7, 1975, Bibiano Morta, marketmaster of the Agdao Public Market filed a requisition request with the Chief of Property of the CityTreasurer's Office for the re-emptying of the septic tank in Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and Antonio Suñer, Jr. Bascon won thebid. On November 26, 1975 Bascon was notified and he signed the purchase order. However, beforesuch date, specifically on November 22, 1975 , bidder Bertulano with four other companions namelyJoselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found dead inside theseptic tank. The bodies were removed by a fireman. One body, that of Joselito Garcia, was taken out byhis uncle, Danilo Garcia and taken to the Regional Hospital but he expired there. The City Engineer's



office investigated the case and learned that the five victims entered the septic tank without clearancefrom it nor with the knowledge and consent of the market master. In fact, the septic tank was found to bealmost empty and the victims were presumed to be the ones who did the re-emptying. Dr. Juan Abear of the City Health Office autopsied the bodies and in his reports, put the cause of death of all five victims as"asphyxia" caused by the diminution of oxygen supply in the body working below normal conditions. Thelungs of the five victims burst, swelled in hemmorrhagic areas and this was due to their intake of toxicgas, which, in this case, was sulfide gas produced from the waste matter inside the septic tank. (p. 177,Records)

On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without pronouncement as to costs.

SO ORDERED. (Records, p. 181)

From the said decision, the petitioners appealed to the then Intermediate Appellate Court (now Court of Appeals). OnJanuary 3, 1986, the appellate court issued a decision, the dispositive portion of which reads:

WHEREFORE, in view of the facts fully established and in the liberal interpretation of what theConstitution and the law intended to protect the plight of the poor and the needy, the ignorant and theindigent –– more entitled to social justice for having, in the unforgettable words of Magsaysay, "less inlife," We hereby reverse and set aside the appealed judgment and render another one:

1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando, Sofia Fernando and her minor children the following sums of money:

a) Compensatory damages for his death P30,000.00

b) Moral damages P20,000.00

2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita Garcia the following sums of money:



3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic ) and her minor children thefollowing sums of money



4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and her minor children the followingsums of money:



5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas Liagoso and Emeteria Liagosoand her minor grandchildren the following sums of money:





The death compensation is fixed at P30,000.00 in accordance with the rulings of the Supreme Courtstarting with People vs . De la Fuente, Nos. L-63251-52, December 29, 1983, 126 SCRA 518 reiterated inthe recent case of People vs . Nepomuceno , No. L-41412, May 27, 1985. Attorney's fees in the amount of P10,000.00 for the handling of the case for the 5 victims is also awarded.

No pronouncement as to costs.

SO ORDERED. (Rollo , pp. 33-34)

Both parties filed their separate motions for reconsideration. On January 11, 1990, the Court of Appeals rendered an Amended Decision, the dispositive portion of which reads:

WHEREFORE, finding merit in the motion for reconsideration of the defendant-appellee Davao City, thesame is hereby GRANTED. The decision of this Court dated January 31, 1986 is reversed and set asideand another one is hereby rendered dismissing the case. No pronouncement as to costs.

SO ORDERED. (Rollo , p. 25)

Hence, this petition raising the following issues for resolution:

1. Is the respondent Davao City guilty of negligence in the case at bar?

2. If so, is such negligence the immediate and proximate cause of deaths of the victims hereof? (p.72, Rollo )

Negligence has been defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury (Corlissv. Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the law, a person who by his omissioncauses damage to another, there being negligence, is obliged to pay for the damage done (Article 2176, New Civil Code). As to what would constitute a negligent act in a given situation, the case of Picart v . Smith (37 Phil. 809, 813) provides Usthe answer, to wit:

The test by which to determine the existence of negligence in a particular case may be stated asfollows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which

an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of thediscreet pater familias of the Roman law. The existence of negligence in a given case is not determinedby reference to the personal judgment of the actor in the situation before him. The law considers whatwould be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence anddetermines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of coursebe always determined in the light of human experience and in view of the facts involved in the particular case . Abstract speculation cannot here be of much value but this much can be profitably said:Reasonable men govern their conduct by the circumstances which are before them or known to them.They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to takecare only when there is something before them to suggest or warn of danger. Could a prudent man, in the

case under consideration, foresee harm as a result of the course actually pursued? If so, it was the dutyof the actor to take precautions to guard against that harm.Reasonable foresight of harm, followed by the ignoring of the suggestion born of this provision, is always necessary before negligence can be held to exist . Stated in these terms, the proper criterion for determining the existence of negligence in a givencase is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable warrant his foregoing the conduct or guarding against its consequences . (emphasis supplied)

To be entitled to damages for an injury resulting from the negligence of another, a claimant must establish the relationbetween the omission and the damage. He must prove under Article 2179 of the New Civil Code that the defendant'snegligence was the immediate and proximate cause of his injury. Proximate cause has been defined as that cause, which,in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, and without whichthe result would not have occurred (Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation of cause



and effect is not an arduous one if the claimant did not in any way contribute to the negligence of the defendant. However,where the resulting injury was the product of the negligence of both parties, there exists a difficulty to discern which actsshall be considered the proximate cause of the accident. InTaylor v . Manila Electric Railroad and Light Co . (16 Phil. 8, 29-30), this Court set a guideline for a judicious assessment of the situation:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be consideredimmediate causes of the accident. The test is simple . Distinction must be made between the accident andthe injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to his own proper hurt . For instance, the

cause of the accident under review was the displacement of the crosspiece or the failure to replace it.This produced the event giving occasion for damages — that is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute,although it was an element of the damage which came to himself. Had the crosspiece been out of placewholly or partly through his act or omission of duty, that would have been one of the determining causesof the event or accident, for which he would have been responsible. Where he contributes to the principaloccurrence, as one of its determining factors, he can not recover. Where, in conjunction with theoccurrence, he contributes only to his own injury, he may recover the amount that the defendantresponsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his ownimprudence. (emphasis Ours)

Applying all these established doctrines in the case at bar and after a careful scrutiny of the records, We find nocompelling reason to grant the petition. We affirm.

Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19 years resulting in anaccumulation of hydrogen sulfide gas which killed the laborers. They contend that such failure was compounded by thefact that there was no warning sign of the existing danger and no efforts exerted by the public respondent to neutralize or render harmless the effects of the toxic gas. They submit that the public respondent's gross negligence was the proximatecause of the fatal incident.

We do not subscribe to this view. While it may be true that the public respondent has been remiss in its duty to re-emptythe septic tank annually, such negligence was not a continuing one. Upon learning from the report of the market master about the need to clean the septic tank of the public toilet in Agdao Public Market, the public respondent immediatelyresponded by issuing invitations to bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. FelicianoBascon (TSN, May 24, 1983, pp. 22-25). The public respondent, therefore, lost no time in taking up remedial measures tomeet the situation. It is likewise an undisputed fact that despite the public respondent's failure to re-empty the septic tank

since 1956, people in the market have been using the public toilet for their personal necessities but have remainedunscathed. The testimonies of Messrs. Danilo Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on this point arerelevant, to wit:

Atty. Mojica, counsel for defendant Davao City:

xxx xxx xxx

The place where you live is right along the Agdao creek, is that correct?

DANILO GARCIA:

A Yes, sir.

Q And to be able to go to the market place, where you claim you have a stall,, you have to pass on the septic tank ?

A Yes, sir .

Q Day in and day out, you pass on top of the septic tank?

A Yes, sir.



Q Is it not a fact that everybody living along the creek passes on top of this septic tank asthey go out from the place and return to their place of residence, is that correct?

And this septic tank, rather the whole of the septic tank, is covered by lead . . .?

A Yes, sir . there is cover .

Q And there were three (3) of these lead covering the septic tank ?

A Yes, sir .

Q And this has always been closed ?

A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied)

ATTY. JOVER, counsel for the plaintiffs:

Q You said you are residing at Davao City, is it not?

DAVID SEJOYA:

A Yes, sir.

Q How long have you been a resident of Agdao?

A Since 1953.

Q Where specifically in Agdao are you residing?

A At the Public Market.

Q Which part of the Agdao Public Market is your house located?

A Inside the market in front of the fish section.

Q Do you know where the Agdao septic tank is located?

A Yes, sir.

Q How far is that septic tank located from your house?

A Around thirty (30) meters.

Q Have you ever had a chance to use that septic tank (public toilet)?

A Yes, sir.

Q How many times, if you could remember?

A Many times, maybe more than 1,000 times.

Q Prior to November 22, 1975, have you ever used that septic tank (public toilet)?

A Yes, sir.



Q How many times have you gone to that septic tank (public toilet) prior to that date,November 22, 1975?

A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)

The absence of any accident was due to the public respondent's compliance with the sanitary and plumbingspecifications in constructing the toilet and the septic tank (TSN, November 4, 1983, p. 51). Hence, the toxic gasfrom the waste matter could not have leaked out because the septic tank was air-tight (TSN, ibid , p. 49). The onlyindication that the septic tank in the case at bar was full and needed emptying was when water came out from it

(TSN, September 13, 1983, p. 41). Yet, even when the septic tank was full, there was no report of any casualty of gas poisoning despite the presence of people living near it or passing on top of it or using the public toilet for their personal necessities.

Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the negligence of the citygovernment and presented witnesses to attest on this lack. However, this strategy backfired on their faces. Their witnesses were not expert witnesses. On the other hand, Engineer Demetrio Alindada of the city government testified anddemonstrated by drawings how the safety requirements like emission of gases in the construction of both toilet and septictank have been complied with. He stated that the ventilation pipe need not be constructed outside the building as it couldalso be embodied in the hollow blocks as is usually done in residential buildings (TSN, November 4, 1983, pp. 50-51). Thepetitioners submitted no competent evidence to corroborate their oral testimonies or rebut the testimony given by Engr. Alindada.

We also do not agree with the petitioner's submission that warning signs of noxious gas should have been put up in thetoilet in addition to the signs of "MEN" and "WOMEN" already in place in that area. Toilets and septic tanks are notnuisances per se as defined in Article 694 of the New Civil Code which would necessitate warning signs for the protectionof the public. While the construction of these public facilities demands utmost compliance with safety and sanitaryrequirements, the putting up of warning signs is not one of those requirements. The testimony of Engr. Alindada on thismatter is elucidative:

ATTY. ALBAY:

Q Mr. Witness, you mentioned the several aspects of the approval of the building permitwhich include the plans of an architect, senitary engineer and electrical plans. All of thesestill pass your approval as building official, is that correct?

DEMETRIO ALINDADA:

A Yes.

Q So there is the sanitary plan submitted to and will not be approved by you unless thesame is in conformance with the provisions of the building code or sanitaryrequirements?

A Yes, for private building constructions.

Q How about public buildings?

A For public buildings, they are exempted for payment of building permits but still theyhave to have a building permit.

Q But just the same, including the sanitary plans, it require your approval?

A Yes, it requires also.

Q Therefore, under the National Building Code, you are empowered not to approvesanitary plans if they are not in conformity with the sanitary requirements?

A Yes.



Q Now, in private or public buildings, do you see any warning signs in the vicinity of septic tanks?

A There is no warning sign.

Q In residential buildings do you see any warning sign?

A There is none.

ATTY. AMPIG:

We submit that the matter is irrelevant and immaterial, Your Honor.

ATTY. ALBAY:

But that is in consonance with their cross-examination, your Honor.

COURT:

Anyway it is already answered.

ATTY. ALBAY:

Q These warning signs, are these required under the preparation of the plans?

A It is not required.

Q I will just reiterate, Mr. Witness. In residences, for example like the residence of Atty. Ampig or the residence of the honorable Judge, would you say that the same principle of the septic tank, from the water closet to the vault, is being followed?

A Yes.

ATTY. ALBAY:

That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)

In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the septic tank is unlikely tohappen unless one removes its covers. The accident in the case at bar occurred because the victims on their own andwithout authority from the public respondent opened the septic tank. Considering the nature of the task of emptying aseptic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly beaware of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service,who is presumed to know the hazards of the job. His failure, therefore, and that of his men to take precautionarymeasures for their safety was the proximate cause of the accident. In Culion Ice, Fish and Elect . Co ., v . Phil . Motors Corporation (55 Phil. 129, 133), We held that when a person holds himself out as being competent to do things requiringprofessional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the

particular work which he attempts to do (emphasis Ours). The fatal accident in this case would not have happened but for the victims' negligence. Thus, the appellate court was correct to observe that:

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



Petitioners further contend that the failure of the market master to supervise the area where the septic tank is located is areflection of the negligence of the public respondent.

We do not think so. The market master knew that work on the septic tank was still forthcoming. It must be rememberedthat the bidding had just been conducted. Although the winning bidder was already known, the award to him was still to bemade by the Committee on Awards. Upon the other hand, the accident which befell the victims who are not in any wayconnected with the winning bidder happened before the award could be given. Considering that the case was yet noaward to commence work on the septic tank, the duty of the market master or his security guards to supervise the workcould not have started (TSN, September 13, 1983, p. 40). Also, the victims could not have been seen working in the area

because the septic tank was hidden by a garbage storage which is more or less ten (10) meters away from the comfortroom itself (TSN, ibid , pp. 38-39). The surreptitious way in which the victims did their job without clearance from themarket master or any of the security guards goes against their good faith. Even their relatives or family members did notknow of their plan to clean the septic tank.

Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code cannot be sustained. Said law states:

Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage onaccount of his moral dependence, ignorance, indigence, mental weakness, tender age or other handicap,the courts must be vigilant for his protection.

We approve of the appellate court's ruling that "(w)hile one of the victims was invited to bid for said project, he didnot win the bid, therefore, there is a total absence of contractual relations between the victims and the City

Government of Davao City that could give rise to any contractual obligation, much less, any liability on the part of Davao City." (Rollo , p. 24) The accident was indeed tragic and We empathize with the petitioners. However, theherein circumstances lead Us to no other conclusion than that the proximate and immediate cause of the death of the victims was due to their own negligence. Consequently, the petitioners cannot demand damages from thepublic respondent.

ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is AFFIRMED. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Griño-Aquino and Bellosillo, JJ., concur.

G.R. No. 105410 July 25, 1994

PILIPINAS BANK, petitioner,vs.HON. COURT OF APPEALS AND FLORENCIO REYES, respondents.

Gella Reyes Danguilan & Associates for petitioner.

Santos V. Pampolina, Jr. for private respondent.

PUNO, J.:

This is a petition for review of the Decision of the respondent court1 in CA-G.R. CV No. 29524 dated May 13, 1992 which

ordered petitioner to pay the private respondent the sum of P50,000.00 as moral damages, P25,000.00 as attorney's feesand cost of suit.

The facts as found both by the trial court2 and the respondent court are:

As payments for the purchased shoe materials and rubber shoes, Florencio Reyes issued postdatedchecks to Winner Industrial Corporation for P20,927.00 and Vicente Tui, for P11,419.50, with due dateson October 10 and 12, 1979, respectively.



To cover the face value of the checks, plaintiff, on October 10, 1979, requested PCIB Money Shop'smanager Mike Potenciano to effect the withdrawal of P32,000.00 from his savings account therein andhave it deposited with his current account with Pilipinas Bank (then Filman Bank), Biñan Branch. RobertoSantos was requested to make the deposit.

In depositing in the name of FLORENCIO REYES, he inquired from the teller the current account number of Florencio Reyes to complete the deposit slip he was accomplishing. He was informed that it was "815"and so this was the same current account number he placed on the deposit slip below the depositor'sname FLORENCIO REYES.

Nothing that the account number coincided with the name Florencio, Efren Alagasi, then Current AccountBookkeeper of Pilipinas Bank, thought it was for Florencio Amador who owned the listed account number.He, thus, posted the deposted in the latter's account not noticing that the depositor's surname in thedeposit slip was REYES.

On October 11, 1979, the October 10, check in favor of Winner Industrial Corporation was presented for payment. Since the ledger of Florencio Reyes indicated that his account had only a balance of P4,078.43,it was dishonored and the payee was advised to try it for next clearing.

On October 15, 1979, the October 10, 1979 check was redeposited but was again dishonored. Likewise,the October 12, 1979 check in favor of Vicente Tui when presented for payment on that same date metthe same fate but was advised to try the next clearing. Two days after the October 10 check was again

dishonored, the payee returned the same to Florencio Reyes and demanded a cash payment of its facevalue which he did if only to save his name. The October 12, 1979 check was redeposited on October 18,1979, but again dishonored for the reason that the check was drawn against insufficient fund.

Furious over the incident, he immediately proceeded to the bank and urged an immediate verification of his account.

Upon verification, the bank noticed the error. The P32,000.00 deposit posted in the account of Florencio Amador was immediately transferred to the account of Reyes upon being cleared by Florencio Amador that he did not effect a deposit in the amount of P32,000.00. The transfer having been effected, the bankthen honored the October 12, 1979, check (Exh. "C").

On the basis of these facts, the trial court ordered petitioner to pay to the private respondent: (1) P200,000.00 as

compensatory damages; (2) P100,000.00 as moral damages; (3) P25,000.00 as attorney's fees, and (4) the costs of suit.On appeal to the respondent court, the judgment was modified as aforestated.

In this petition for review, petitioner argues:

I. Respondent Court of Appeals erred on a matter of law, in not applying the first sentence of Article 2179,New Civil Code, in view of its own finding that respondent Reyes' own representative committed themistake in writing down the correct account number;

II. Respondent Court of Appeals erred, on a matter of law, in holding that respondent Reyes has the rightto recover moral damages and in awarding the amount of P50,000.00, when there is no legal nor factualbasis for it;

III. The Honorable Court of Appeals erred, on a matter of law, in holding petitioner liable for attorney'sfees in the amount of P20,000.00, when there is no legal nor factual basis for it.

We find no merit in the petition.

First. For Article 21793 of the Civil Code to apply, it must be established that private respondent's own negligence was the

immediate and proximate cause of his injury. The concept of proximate cause is well defined in our corpus of jurisprudence as "any cause which, in natural and continuous sequence, unbroken by any efficient intervening cause,produces the result complained of and without which would not have occurred and from which it ought to have beenforseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, wouldresult therefrom as a natural and probable consequence."

4 In the case at bench, the proximate cause of the injury is the



negligence of petitioner's employee in erroneously posting the cash deposit of private respondent in the name of another depositor who had a similar first name. As held by the trial court:

xxx xxx xxx

Applying the test, the bank employee is, on that basis, deemed to have failed to exercise the degree of care required in the performance of his duties. As earlier stated, the bank employee posted the cashdeposit in the account of Florencio Amador from his assumption that the name Florencio appearing onthe ledger without, however, going through the full name, is the same Florencio stated in the deposit slip.

He should have continuously gone beyond mere assumption, which was proven to be erroneous, andproceeded with clear certainty, considering the amount involved and the repercussions it would create onthe totality of the person notable of which is the credit standing of the person involved should a mistakehappen. The checks issued by the plaintiff in the course of his business were dishonored by the bankbecause the ledger of Florencio Reyes indicated a balance insufficient to cover the face value of checks.

Second. In light of this negligence, the liability of petitioner for moral damages cannot be impugned. So we held inBank of the Philippine Islands vs. IAC, et al .

5

The bank is not expected to be infallible but, as correctly observed by respondent Appellate Court, in thisinstance, it must bear the blame for not discovering the mistake of its teller despite the establishedprocedure requiring the papers and bank books to pass through a battery of bank personnel whose duty itis to check and countercheck them for possible errors. Apparently, the officials and employees tasked to

do that did not perform their duties with due care, as may be gathered from the testimony of the bank'slone witness, Antonio Enciso, who casually declared that "the approving officer does not have to see theaccount numbers and all those things. Those are very petty things for the approving manager to look into" (p. 78, Record on Appeal). Unfortunately, it was a "petty thing," like the incorrect account number that the bank teller wrote on the initial deposit slip for the newly-opened joint current account of theCanlas spouses, that sparked this half-a-million-peso damage suit against the bank.

While the bank's negligence may not have been attended with malice and bad faith, nevertheless, itcaused serious anxiety, embarrassment and humiliation to the private respondents for which they areentitled to recover reasonable moral damages (American Express International, Inc. IAC, 167 SCRA209). The award of reasonable attorney's fees is proper for the private respondent's were compelled tolitigate to protect their interest (Art. 2208, Civil Code). However, the absence of malice and bad faithrenders the award of exemplary damages improper (Globe Mackay Cable and Radio Corp. vs. Court of

Appeals, 176 SCRA 778).

IN VIEW WHEREOF, the petition is denied there being no reversible error in the Decision of the respondent court. Costagainst petitioner.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

G.R. No. 150304 June 15, 2005

QUEZON CITY GOVERNMENT and Engineer RAMIR J. TIAMZON, Petitioners,

vs.FULGENCIO DACARA*, Respondent.

D E C I S I O N

PANGANIBAN, J.:

The review of cases under Rule 45 of the Rules of Court is limited to errors of law. Unless there is a showing that thefindings of the lower court are totally devoid of support or are glaringly erroneous, this Court will not analyze or weighevidence all over again. Under the circumstance, the factual findings and conclusions of the Court of Appeals affirmingthose of the trial courts will be conclusive upon the Supreme Court. Furthermore, well-entrenched is the rule that points of law, theories, issues and arguments not brought to the attention of the trial court cannot be raised for the first time on



appeal or certiorari. Finally, this Court reiterates the principle that moral damages are designed to compensate theclaimant for actual injury suffered, not to impose a penalty on the wrongdoer. Hence, absent any definite finding as towhat they consist of, the alleged moral damages suffered would become a penalty rather than a compensation for actualinjury suffered.

The Case

Before us is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the February 21, 2001 Decision

2and the

October 9, 2001 Resolution3 of the Court of Appeals (CA) in CA-GR CV No. 29392. The challenged Decision disposed as

follows:

"WHEREFORE, premises considered, the Decision dated June 29, 1990 in Civil Case No. Q-88-233 shouldbeAFFIRMED, with costs against the appellants."

4

The assailed Resolution denied petitioners' Motion for Reconsideration.

The Facts

The CA summarized the facts in this manner:

"Sometime on February 28, 1988 at about 1:00 A.M., Fulgencio Dacara, Jr., son of Fulgencio P. Dacara, Sr. and owner of

'87 Toyota Corolla 4-door Sedan with Plate No. 877 (sic), while driving the said vehicle, rammed into a pile of earth/streetdiggings found at Matahimik St., Quezon City, which was then being repaired by the Quezon City government. As a resultDacarra (sic), Jr. allegedly sustained bodily injuries and the vehicle suffered extensive damage for it turned turtle when ithit the pile of earth.

"Indemnification was sought from the city government (Record, p. 22), which however, yielded negative results.Consequently, Fulgencio P. Dacara (hereinafter referred to as FULGENCIO), for and in behalf of his minor son, Jr., filed aComplaint (Record, p. 1) for damages against the Quezon City and Engr. Ramir Tiamzon, as defendants, before theRegional Trial Court, National Capital Judicial Region, Branch 101, Quezon City, docketed as Civil Case No. Q-88-233.FULGENCIO prayed that the amount of not less than P20,000.00 actual or compensatory damages, P150,000.00 moraldamages, P30,000.00 exemplary damages, and P20,000.00 attorney's fees and costs of the suit be awarded to him.

"In an Answer with Affirmative and/or Special Defenses (Record, p. 11), defendants admitted the occurrence of the

incident but alleged that the subject diggings was provided with a moun[d] of soil and barricaded with reflectorized trafficpaint with sticks placed before or after it which was visible during the incident on February 28, 1988 at 1:00 A.M. In short,defendants claimed that they exercised due care by providing the area of the diggings all necessary measures to avoidaccident. Hence, the reason why Fulgencio Dacara, Jr. fell into the diggings was precisely because of the latter'snegligence and failure to exercise due care."

5

After trial on the merits, the Regional Trial Court (RTC), Branch 101, Quezon City, rendered its Decision6 dated June 29,

1990. The evidence proffered by the complainant (herein respondent) was found to be sufficient proof of the negligence of herein petitioners. Under Article 2189 of the Civil Code,

7 the latter were held liable as follows:

"WHEREFORE, premises above considered, based on the quantum of evidence presented by the plaintiff which tilts intheir favor elucidating the negligent acts of the city government together with its employees when considered in the light of Article 2189, judgment is hereby rendered ordering the defendants to indemnify the plaintiff the sum of twenty thousand

pesos as actual/compensatory damages, P10,000.00 as moral damages,P5,000.00 as exemplary damages, P10,000.00as attorney's fees and other costs of suit."

8

In their appeal to the CA, petitioners maintained that they had observed due diligence and care in installing preventivewarning devices, and that it was in fact the plaintiff who had failed to exercise prudence by driving too fast to avoid thediggings. Moreover, the lower court allegedly erred in using Article 2189 of the Civil Code, which supposedly applied onlyto liability for the death or injuries suffered by a person, not for damage to property.

Ruling of the Court of Appeals

http://www.lawphil.net/judjuris/juri2005/jun2005/gr_150304_2005.html#fnt1





























The CA agreed with the RTC's finding that petitioners' negligence was the proximate cause of the damage suffered byrespondent.

9 Noting the failure of petitioners to present evidence to support their contention that precautionary measures

had indeed been observed, it ruled thus:

"x x x. Sadly, the evidence indicates that [petitioners] failed to show that they placed sufficient and adequate precautionarysigns at Matahimik Street to minimize or prevent the dangers to life and limb under the circumstances. Contrary to thetestimony of the witnesses for the [petitioners], namely Engr. Ramir Tiamzon, Ernesto Landrito and Eduardo Castillo, thatthere were signs, gasera which was buried so that its light could not be blown off by the wind and barricade, none wasever presented to stress and prove the sufficiency and adequacy of said contention. "

10

Further upholding the trial court's finding of negligence on the part of herein petitioners, the CA gave this opinion:

"x x x. As observed by the trial court, the negligence of [petitioners] was clear based on the investigation report of Pfc.William P. Villafranca stating to the effect 'that the subject vehicle rammed into a pile of earth from a deep excavationthereat without any warning devi[c]e whatsoever and as a consequence thereof, Dacara, Jr. lost control of his driven car and finally turned-turtle causing substantial damage to the same.' As a defense against liability on the basis of quasi-delict, one must have exercised the diligence of a good father of a family which [petitioners] failed to establish in theinstant case."

11

Whether Article 2189 is applicable to cases in which there has been no death or physical injury, the CA ruled in theaffirmative:

"x x x. More importantly, we find it illogical to limit the liability to death or personal injury only as argued by appellants inthe case at bar applying the foregoing provisions. For, injury is an act that damages, harms or hurts and mean in commonas the act or result of inflicting on a person or thing something that causes loss, pain, distress, or impairment. Injury is themost comprehensive, applying to an act or result involving an impairment or destruction of right, health, freedom,soundness, or loss of something of value."

12

Hence, this Petition.13

Issues

Petitioners raise the following issues for our consideration:

"1. The Honorable Court of Appeals decided a question of law/substance contrary to applicable law and jurisprudence when it affirmed the award of moral damage suit (sic) the amount of P10,000.00.

2. The Honorable Court of Appeals decided a question of law/substance contrary to applicable law and jurisprudence when it affirmed the award of exemplary damage sin (sic) the amount of P5,000.00 and attorney'sfee in the [a]mount of P10,000.00.

3. The Honorable Court of Appeals gravely erred and/;or (sic) had acted with grave abuse of discretion amountingto lack and/or excess of jurisdiction when it refused to hold that respondent's son in the person of FulgencioDacara, Jr. was negligent at the time of incident."

14

Because the issues regarding the liability of petitioners for moral and exemplary damages presuppose that their negligence caused the vehicular accident, we first resolve the question of negligence or the proximate cause of the

incident.

The Court's Ruling

The Petition is partly meritorious.

First Issue:

Negligence



























Maintaining that they were not negligent, petitioners insist that they placed all the necessary precautionary signs to alertthe public of a roadside construction. They argue that the driver (Fulgencio Dacara Jr.) of respondent's car wasoverspeeding, and that his own negligence was therefore the sole cause of the incident.

Proximate cause is defined as any cause that produces injury in a natural and continuous sequence, unbroken by anyefficient intervening cause, such that the result would not have occurred otherwise.

15 Proximate cause is determined from

the facts of each case, upon a combined consideration of logic, common sense, policy and precedent .16

What really caused the subject vehicle to turn turtle is a factual issue that this Court cannot pass upon, absent any

whimsical or capricious exercise of judgment by the lower courts or an ample showing that they lacked any basis for their conclusions.

17 The unanimity of the CA and the trial court in their factual ascertainment that petitioners' negligence was

the proximate cause of the accident bars us from supplanting their findings and substituting these with our own. Thefunction of this Court is limited to the review of the appellate court's alleged errors of law. It is not required to weigh allover again the factual evidence already considered in the proceedings below.

18Petitioners have not shown that they are

entitled to an exception to this rule.19

They have not sufficiently demonstrated any special circumstances to justify afactual review.

That the negligence of petitioners was the proximate cause of the accident was aptly discussed in the lower court'sfinding, which we quote:

"Facts obtaining in this case are crystal clear that the accident of February 28, 1988 which caused almost the life and limbof Fulgencio Dacara, Jr. when his car turned turtle was the existence of a pile of earth from a digging done relative to the

base failure at Matahimik Street nary a lighting device or a reflectorized barricade or sign perhaps which could haveserved as an adequate warning to motorist especially during the thick of the night where darkness is pervasive.

"Contrary to the testimony of the witnesses for the defense that there were signs, gasera which was buried so that its lightcould not be blown off by the wind and barricade, none was ever presented to stress the point that sufficient and adequateprecautionary signs were placed at Matahimik Street. If indeed signs were placed thereat, how then could it be explainedthat according to the report even of the policeman which for clarity is quoted again,none was found at the scene of theaccident.

x x x x x x x x x

"Negligence of a person whether natural or juridical over a particular set of events is transfixed by the attendingcircumstances so that the greater the danger known or reasonably anticipated, the greater is the degree of care required

to be observed.

x x x x x x x x x

"The provisions of Article 2189 of the New Civil Code capsulizes the responsibility of the city government relative to themaintenance of roads and bridges since it exercises the control and supervision over the same. Failure of the defendantto comply with the statutory provision found in the subject-article is tantamount to negligence per se which renders theCity government liable. Harsh application of the law ensues as a result thereof but the state assumed the responsibility forthe maintenance and repair of the roads and bridges and neither exception nor exculpation from liability would deem justand equitable."

20 (Emphasis supplied)

Petitioners belatedly point out that Fulgencio Jr. was driving at the speed of 60 kilometers per hour (kph) when he met the

accident. This speed was allegedly well above the maximum limit of 30 kph allowed on "city streets with light traffic, whennot designated 'through streets,'" as provided under the Land Transportation and Traffic Code (Republic Act 4136). Thus,petitioners assert that Fulgencio Jr., having violated a traffic regulation, should be presumed negligent pursuant to Article2185

21 of the Civil Code.

22

These matters were, however, not raised by petitioners at any time during the trial. It is evident from the records that theybrought up for the first time the matter of violation of RA 4136 in their Motion for Reconsideration

23 of the CA Decision

dated February 21, 2001. It is too late in the day for them to raise this new issue. It is well-settled that points of law,theories or arguments not brought out in the original proceedings cannot be considered on review or appeal .

24 To

consider their belatedly raised arguments at this stage of the proceedings would trample on the basic principles of fair play, justice, and due process.

25












































Indeed, both the trial and the appellate courts' findings, which are amply substantiated by the evidence on record, clearlypoint to petitioners' negligence as the proximate cause of the damages suffered by respondent's car. No adequate reasonhas been given to overturn this factual conclusion.

Second Issue:

Moral Damages

Petitioners argue that moral damages are recoverable only in the instances specified in Article 221926

of the Civil Code.

Although the instant case is an action for quasi-delict, petitioners contend that moral damages are not recoverable,because no evidence of physical injury were presented before the trial court .

27

To award moral damages, a court must be satisfied with proof of the following requisites: (1) an injury -- whether physical,mental, or psychological -- clearly sustained by the claimant; (2) a culpable act or omission factually established; (3) awrongful act or omission of the defendant as the proximate cause of the injury sustained by the claimant; and (4) theaward of damages predicated on any of the cases stated in Article 2219.

28

Article 2219(2) specifically allows moral damages to be recovered for quasi-delicts, provided that the act or omissioncaused physical injuries. There can be no recovery of moral damages unless the quasi-delict resulted in physicalinjury.

29 This rule was enunciated in Malonzo v. Galan g

30 as follows:

"x x x. Besides, Article 2219 specifically mentions 'quasi-delicts causing physical injuries,' as an instance when moraldamages may be allowed, thereby implying that all other quasi-delicts not resulting in physical injuries are excluded,excepting of course, the special torts referred to in Art. 309 (par. 9, Art. 2219) and in Arts. 21, 26, 27, 28, 29, 30, 32, 34and 35 on the chapter on human relations (par. 10, Art. 2219)."

In the present case, the Complaint alleged that respondent's son Fulgencio Jr. sustained physical injuries. The sontestified that he suffered a deep cut on his left arm when the car overturned after hitting a pile of earth that had been left inthe open without any warning device whatsoever.

It is apparent from the Decisions of the trial and the appellate courts, however, that no other evidence (such as a medicalcertificate or proof of medical expenses) was presented to prove Fulgencio Jr.'s bare assertion of physical injury. Thus,there was no credible proof that would justify an award of moral damages based on Article 2219(2) of the Civil Code.

Moreover, the Decisions are conspicuously silent with respect to the claim of respondent that his moral sufferings weredue to the negligence of petitioners. The Decision of the trial court, which summarizes the testimony of respondent's four witnesses, makes no mention of any statement regarding moral suffering, such as mental anguish, besmirched reputationwounded feelings, social humiliation and the like.

Moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physicalsuffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, socialhumiliation, and similar injury unjustly inflicted on a person.

31 Intended for the restoration of the psychological or

emotional status quo ante , the award of moral damages is designed to compensate emotional injury suffered, not toimpose a penalty on the wrongdoer.

For the court to arrive upon a judicious approximation of emotional or moral injury, competent and substantial proof of thesuffering experienced must be laid before it. Essential to this approximation are definite findings as to what the supposed

moral damages suffered consisted of; otherwise, such damages would become a penalty rather than a compensation for actual injury suffered.

32

Furthermore, well-settled is the rule that moral damages cannot be awarded -- whether in a civil33

or a criminal case34

-- inthe absence of proof of physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, woundedfeelings, moral shock, social humiliation, or similar injury.

35 The award of moral damages must be solidly anchored on a

definite showing that respondent actually experienced emotional and mental sufferings. Mere allegations do not suffice;they must be substantiated by clear and convincing proof .

36

Third Issue:

Exemplary Damages














































Petitioners argue that exemplary damages and attorney's fees are not recoverable. Allegedly, the RTC and the CA "didnot find that petitioners were guilty of gross negligence in the performance of their duty and responsibilities."

37

Exemplary damages cannot be recovered as a matter of right .38

While granting them is subject to the discretion of thecourt, they can be awarded only after claimants have shown their entitlement to moral, temperate or compensatorydamages.

39 In the case before us, respondent sufficiently proved before the courts a quo that petitioners' negligence was

the proximate cause of the incident, thereby establishing his right to actual or compensatory damages. He has adducedadequate proof to justify his claim for the damages caused his car. The question that remains, therefore, is whether exemplary damages may be awarded in addition to compensatory damages.

Article 2231 of the Civil Code mandates that in cases of quasi-delicts, exemplary damages may be recovered if thedefendant acted with gross negligence.

40 Gross negligence means such utter want of care as to raise a presumption that

the persons at fault must have been conscious of the probable consequences of their carelessness, and that they musthave nevertheless been indifferent (or worse) to the danger of injury to the person or property of others.

41 The negligence

must amount to a reckless disregard for the safety of persons or property. Such a circumstance obtains in the instantcase.

A finding of gross negligence can be discerned from the Decisions of both the CA and the trial court. We quote from theRTC Decision:

"Sad to state that the City Government through its instrumentalities have (sic) failed to show the modicum of responsibilitymuch less, care expected of them (sic) by the constituents of this City. It is even more deplorable that it was a case of a

street digging in a side street which caused the accident in the so-called 'premier city.'"42

1avvphi1.zw+

The CA reiterated the finding of the trial court that petitioners' negligence was clear, considering that there was no warningdevice whatsoeve r

43 at the excavation site.

The facts of the case show a complete disregard by petitioners of any adverse consequence of their failure to install evena single warning device at the area under renovation. Considering further that the street was dimly lit,

44 the need for

adequate precautionary measures was even greater. By carrying on the road diggings without any warning or barricade,petitioners demonstrated a wanton disregard for public safety. Indeed, the February 28, 1988 incident was bound tohappen due to their gross negligence. It is clear that under the circumstances, there is sufficient factual basis for a findingof gross negligence on their part.

Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the

public good. The award of these damages is meant to be a deterrent to socially deleterious actions .45Public policyrequires such imposition to suppress wanton acts of an offender .

46 It must be emphasized that local governments and

their employees should be responsible not only for the maintenance of roads and streets, but also for the safety of thepublic. Thus, they must secure construction areas with adequate precautionary measures.

Not only is the work of petitioners impressed with public interest; their very existence is justified only by public service.Hence, local governments have the paramount responsibility of keeping the interests of the public foremost in their agenda. For these reasons, it is most disturbing to note that the present petitioners are the very parties responsible for endangering the public through such a rash and reckless act.

WHEREFORE, the Petition is hereby PARTLY GRANTED . The Decision of the Court of Appeals is AFFIRMED , withthe MODIFICATION that the award of moral damages is DELETED . No costs.

SO ORDERED.

G.R. No. L-15674 October 17, 1921

CONSOLACION GABETO, in her own right and as guardian ad litem of her three children, plaintiff-appellee,vs.AGATON ARANETA, defendant-appellant.

Jose E. Locsin for appellant.Block, Johnston and Greenbaum for appellee.










































STREET, J.:

This action was instituted in the Court of First Instance of Iloilo by Consolacion Gabeto, in her own right as widow ofProceso Gayetano, and as guardian ad litem of the three children, Conchita Gayetano, Rosita Gayetano, and FerminGayetano, for the purpose of recovering damages incurred by the plaintiff as a result of the death of the said ProcesoGayetano, supposedly cause by the wrongful act of the defendant Agaton Araneta. Upon hearing the evidence, his Honor,Judge L. M. Southworth, awarded damages to the plaintiff in the amount of P3,000, from which judgment the defendant

appealed.

It appears in evidence that on August 4, 1918. Basilio Ilano and Proceso Gayetano took a carromata near PlazaGay, in the City of Iloilo, with a view to going to a cockpit on Calle Ledesma in the same City. When the driver of thecarromata had turned his horse and started in the direction indicated, the defendant, Agaton Araneta, stepped out into thestreet, and laying his hands on the reins, stopped the horse, at the same time protesting to the driver that he himself hadcalled this carromata first. The driver, one Julio Pagnaya, replied to the effect that he had not heard or seen the call of Araneta, and that he had taken up the two passengers then in the carromata as the first who had offered employment. Ator about the same time Pagnaya pulled on the reins of the bridle to free the horse from the control of Agaton Araneta, inorder that the vehicle might pass on. Owing, however, to the looseness of the bridle on the horse's head or to therottenness of the material of which it was made, the bit came out of the horse's mouth; and it became necessary for thedriver to get out, which he did, in order to find the bridle. The horse was then pulled over to near the curb, by one or theother — it makes no difference which — and Pagnaya tried to fix the bridle.

While he was thus engaged, the horse, being free from the control of the bit, became disturbed and moved forward,in doing which he pulled one of the wheels of the carromata up on the sidewalk and pushed Julio Pagnaya over. After going a few years further the side of the carromata struck a police telephone box which was fixed to a post on thesidewalk, upon which the box came down with a crash and frightened the horse to such an extent that he set out at fullspeed up the street.

Meanwhile one of the passengers, to wit. Basilio Ilano, had alighted while the carromata was as yet alongside thesidewalk; but the other, Proceso Gayetano, had unfortunately retained his seat, and after the runaway horse hadproceeded up the street to a point in front of the Mission Hospital, the said Gayetano jumped or fell from the rig, and in sodoing received injuries from which he soon died.

As to the facts above stated the evidence cannot be said to be materially in conflict; but there is decided conflict

upon the point of the exact relation of the defendant Agaton Araneta, to the runaway. The evidence for the plaintiff on thispoint consists chiefly of the testimony of Julio Pagnaya and of Basilio Ilano. They both say that while yet in the middle of the street, the defendant jerked the bridle, which caused the bit to come out of the horse's mouth, and Julio says that atthat juncture the throat latch of the bridle was broken. Be this as it may, we are of the opinion that the mere fact that thedefendant interfered with the carromata by stopping the horse in the manner stated would not make him liable for thedeath of Proceso Gayetano; because it is admitted by Julio Pagnaya that he afterwards got out of the carromata and wentto the horse's head to fix the bridle. The evidence is furthermore convincing to the effect that, after Julio Pagnaya alighted,the horse was conducted to the curb and that an appreciable interval of time elapsed — same witnesses say severalminutes — before the horse started on his career up the street. 1awph!l.net

It is therefore evident that the stopping of the rig by Agaton Araneta in the middle of the street was too remote fromthe accident that presently ensued to be considered the legal or proximate cause thereof. Moreover, by getting out andtaking his post at the head of the horse, the driver was the person primarily responsible for the control of the animal, and

the defendant cannot be charged with liability for the accident resulting from the action of the horse thereafter.

Julio Pagnaya testifies to one fact which, if it were fully accredited, would possibly put a different complexion on thecase; for he says that when the horse was pulled over to the curb, the defendant, by way of emphasizing his verbaldenunciation of Pagnaya, gesticulated with one of his arms and incidentally brought his hand down on the horse's nose.This, according to Pagnaya, is what made the horse run away. There is no other witness who testifies to this; and it isnoteworthy that Basilio Ilano does not mention it. A decided preponderance of the evidence in our opinion is against it.

The evidence indicates that the bridle was old, and the leather of which it was made was probably so weak as to beeasily broken. Julio Pagnaya had a natural interest in refuting this fact, as well as in exculpating himself in other respects;and we are of the opinion that the several witnesses who testified for the defendant gave a more credible account of theaffair than the witnesses for the plaintiff. According to the witnesses for the defendant, it was Julio who jerked the rein,



thereby causing the bit it come out of the horse's mouth; and they say that Julio, after alighting, led the horse over to thecurb, and proceeded to fix the bridle; and that in so doing the bridle was slipped entirely off, when the horse, feelinghimself free from control, started to go away as previously stated.

Upon the whole we are constrained to hold that the defendant is not legally responsible for the death of ProcesoGayetano; and though reluctant to interfere with the findings of fact of a trial court when there is a conflict of testimony, theevidence in this case so clearly preponderates in favor of the defendant, that we have no recourse but to reverse the judgment.

The judgment will therefore be reversed, and the defendant will be absolved from the complaint; and it is soordered, without express finding as to costs of either instance. So ordered.

Johnson, Araullo, Avanceña and Villamor, JJ., concur.

G.R. No. 72964 January 7, 1988

FILOMENO URBANO, petitioner,vs.HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR ., J.:

This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the thenCircuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty beyond reasonable doubt of the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He foundthe place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed.Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe

cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he wasthe one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued.Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him onthe right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away fromUrbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of saidbolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced andprevented him from hacking Javier.

Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away fromwhere the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding himthere, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to aphysician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but

instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.

After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla who conducted amedico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C" dated September 28, 1981) whichreads:

TO WHOM IT MAY CONCERN:

This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing atBarangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following:

1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.



As to my observation the incapacitation is from (7-9) days period. This wound was presented to me onlyfor medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records)

Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to payP700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared beforethe San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:

xxx xxx xxx

Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this Stationaccompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are neighborsand close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbanowho shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office thatthis will never be repeated anymore and not to harbour any grudge against each other. (p. 87, OriginalRecords.)

Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given toJavier at Urbano's house in the presence of barangay captain Soliven.

At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very seriouscondition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who

personally attended to Javier found that the latter's serious condition was caused by tetanus toxin. He noticed thepresence of a healing wound in Javier's palm which could have been infected by tetanus.

On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are asfollows:

Date Diagnosis

11-14-80 ADMITTED due to trismus

adm. at DX TETANUS

1:30 AM Still having frequent muscle spasm. With diffi-

#35, 421 culty opening his mouth. Restless at times. Febrile

11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessa-

tion of respiration and HR after muscular spasm.

02 inhalation administered. Ambo bag resuscita-

tion and cardiac massage done but to no avail.

Pronounced dead by Dra. Cabugao at 4:18 P.M.

PMC done and cadaver brought home by rela-

tives. (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then CircuitCriminal Court of Dagupan City, Third Judicial District.

Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as charged. He wassentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor , as minimum toSEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal , as maximum, together with the



accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiaryimprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, inMuntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.

The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity tothe heirs of the deceased to P30,000.00 with costs against the appellant.

The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:

That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the presenthaving been re-elected to such position in the last barangay elections on May 17, 1982;

That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan andother places of Central Luzon including San Fabian, a town of said province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates thericefields of San Fabian were closed and/or controlled so much so that water and its flow to the canalsand ditches were regulated and reduced;

That due to the locking of the sluice or control gates of the dam leading to the canals and ditches whichwill bring water to the ricefields, the water in said canals and ditches became shallow which was suitablefor catching mudfishes;

That after the storm, I conducted a personal survey in the area affected, with my secretary PerfectoJaravata;

That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish inthe shallow irrigation canals with some companions;

That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of tetanus. (p. 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that "Criminal liability shall beincurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which heintended ..." Pursuant to this provision "an accused is criminally responsible for acts committed by him in violation of lawand for all the natural and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).

The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffereda 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died fromtetanus.

Under these circumstances, the lower courts ruled that Javier's death was the natural and logical consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus, the appellate court said:

The claim of appellant that there was an efficient cause which supervened from the time the deceasedwas wounded to the time of his death, which covers a period of 23 days does not deserve seriousconsideration. True, that the deceased did not die right away from his wound, but the cause of his deathwas due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death.

Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw becauseof the infection of the wound with tetanus. And there is no other way by which he could be infected withtetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate



cause of the victim's death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1,R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil. 418).

Appellant's allegation that the proximate cause of the victim's death was due to his own negligence ingoing back to work without his wound being properly healed, and lately, that he went to catch fish in dirtyirrigation canals in the first week of November, 1980, is an afterthought, and a desperate attempt byappellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it isimpossible to conceive that the deceased would be reckless enough to work with a disabled hand. (pp.

20-21, Rollo)

The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his ownnegligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after twoweeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elementslike tetanus germs.

The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus However, as to when the wound wasinfected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:

xxx xxx xxx

... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of AmericanJurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,produces the injury, and without which the result would not have occurred."And more comprehensively,"the proximate legal cause is that acting first and producing the injury, either immediately or by settingother events in motion, all constituting a natural and continuous chain of events, each having a closecausal connection with its immediate predecessor, the final event in the chain immediately effecting theinjury as a natural and probable result of the cause which first acted, under such circumstances that theperson responsible for the first event should, as an ordinarily prudent and intelligent person, have

reasonable ground to expect at the moment of his act or default that an injury to some person mightprobably result therefrom." (at pp. 185-186)

The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was woundeduntil his death which would exculpate Urbano from any liability for Javier's death.

We look into the nature of tetanus-

The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within 2 or 3 days of injury the mortality rate approaches 100 percent .

Non-specific premonitory symptoms such as restlessness, irritability, and headache are encounteredoccasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity, and patients oftencomplain of difficulty opening their mouths. In fact, trismus in the commonest manifestation of tetanus andis responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigiditybecomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptomsdevelop in the region of the injury. In the vast majority, however, most muscles are involved to somedegree, and the signs and symptoms encountered depend upon the major muscle groups affected.

Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the onset time . As in the case of the incubation period, a short onset time is associated with a poor prognosis.



Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increasesrigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasmsmay be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli producemore intense and longer lasting spasms with increasing frequency. Respiration may be impaired bylaryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxiamay then lead to irreversible central nervous system damage and death.

Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild.

Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked,dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms.The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less,severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms.(Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied)

Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the incubation period of thedisease.

In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano usedin hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered thesymptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died.

If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is moremedically probable that Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound.Therefore, the onset time should have been more than six days . Javier, however, died on the second day from the onset time . The more credible conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected with tetanus after thehacking incident. Considering the circumstance surrounding Javier's death, his wound could have been infected bytetanus 2 or 3 or a few but not 20 to 22 days before he died.

The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused . (People v. Cardenas, supra) And since we are dealing with a criminal conviction, the proof that theaccused caused the victim's death must convince a rational mind beyond reasonable doubt . The medical findings,however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later

or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to thecrime. (People v. Rellin, 77 Phil. 1038).

Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failureto take necessary precautions, with tetanus may have been the proximate cause of Javier's death with which thepetitioner had nothing to do. As we ruled in Manila Electric Co. v. Remoquillo, et al . (99 Phil. 118).

"A prior and remote cause cannot be made the be of an action if such remote cause did nothing morethan furnish the condition or give rise to the occasion by which the injury was made possible, if thereintervened between such prior or remote cause and the injury a distinct, successive, unrelated, andefficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such conditionwas not the proximate cause. And if an independent negligent act or defective condition sets into

operation the instances which result in injury because of the prior defective condition, such subsequentact or condition is the proximate cause." (45 C.J. pp. 931-932). (at p. 125)

It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records showhe is guilty of inflicting slight physical injuries. However, the petitioner's criminal liability in this respect was wiped out bythe victim's own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect acompromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. Thissettlement of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508, Section 2(3).(See also People v. Caruncho, 127 SCRA 16).

We must stress, however, that our discussion of proximate cause and remote cause is limited to the criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also free of civil liability. The well-settled



doctrine is that a person, while not criminally liable, may still be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al . (G.R. No. 74041, July 29, 1987), we said:

xxx xxx xxx

... While the guilt of the accused in a criminal prosecution must be established beyond reasonable doubt,only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes a declaration thatthe facts from which the civil liability might arise did not exist. (Padilla v. Court of Appeals, 129 SCRA

559).

The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of theaccused on the ground that his guilt has not been proved beyond reasonable doubt does not necessarilyexempt him from civil liability for the same act or omission, has been explained by the Code Commissionas follows:

The old rule that the acquittal of the accused in a criminal case also releases him fromcivil liability is one of the most serious flaws in the Philippine legal system. It has givenuse to numberless instances of miscarriage of justice, where the acquittal was due to areasonable doubt in the mind of the court as to the guilt of the accused. The reasoningfollowed is that inasmuch as the civil responsibility is derived from the criminal offense,when the latter is not proved, civil liability cannot be demanded.

This is one of those causes where confused thinking leads to unfortunate and deplorableconsequences. Such reasoning fails to draw a clear line of demarcation between criminalliability and civil responsibility, and to determine the logical result of the distinction. Thetwo liabilities are separate and distinct from each other. One affects the social order andthe other, private rights. One is for the punishment or correction of the offender while theother is for reparation of damages suffered by the aggrieved party. The tworesponsibilities are so different from each other that article 1813 of the present (Spanish)Civil Code reads thus: "There may be a compromise upon the civil action arising from acrime; but the public action for the imposition of the legal penalty shall not thereby beextinguished." It is just and proper that, for the purposes of the imprisonment of or fineupon the accused, the offense should be proved beyond reasonable doubt. But for thepurpose of indemnity the complaining party, why should the offense also be proved

beyond reasonable doubt? Is not the invasion or violation of every private right to beproved only by a preponderance of evidence? Is the right of the aggrieved person anyless private because the wrongful act is also punishable by the criminal law?

"For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct a serious defect in our law. It will close up an inexhaustiblesource of injustice-a cause for disillusionment on the part of the innumerable personsinjured or wronged."

The respondent court increased the P12,000.00 indemnification imposed by the trial court to P30,000.00. However, sincethe indemnification was based solely on the finding of guilt beyond reasonable doubt in the homicide case, the civil liabilityof the petitioner was not thoroughly examined. This aspect of the case calls for fuller development if the heirs of the victimare so minded.

WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then Intermediate AppellateCourt, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of homicide.Costs de oficio.

SO ORDERED.

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

G.R. No. 130068 October 1, 1998



FAR EASTERN SHIPPING COMPANY, petitioner,vs.COURT OF APPEALS and PHILIPPINE PORTS AUTHORITY, respondents.

G.R. No. 130150 October, 1998

MANILA PILOTS ASSOCIATION, petitioner,vs.PHILIPPINE PORTS AUTHORITY and FAR EASTERN SHIPPING COMPANY, respondents.

REGALADO, J.:

These consolidated petitions for review on certiorari seek in unison to annul and set aside the decision1

of respondentCourt of Appeals of November 15, 1996 and its resolution

2dated July 31, 1997 in CA-G.R. CV No. 24072, entitled

"Philippine Ports Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company, Senen C. Gavino and Manila Pilots' Association, Defendants-Appellants," which affirmed with modification the judgment of the trial court holding thedefendants-appellants therein solidarily liable for damages in favor of herein private respondent.

There is no dispute about the facts as found by the appellate court,thus —

. . . On June 20, 1980, the M/V PAVLODAR, flying under the flagship of the USSR, owned and operatedby the Far Eastern Shipping Company (FESC for brevity's sake), arrived at the Port of Manila fromVancouver, British Columbia at about 7:00 o'clock in the morning. The vessel was assigned Berth 4 of theManila International Port, as its berthing space. Captain Roberto Abellana was tasked by the PhilippinePort Authority to supervise the berthing of the vessel. Appellant Senen Gavino was assigned by the Appellant Manila Pilots' Association (MPA for brevity's sake) to conduct docking maneuvers for the safeberthing of the vessel to Berth No. 4.

Gavino boarded the vessel at the quarantine anchorage and stationed himself in the bridge, with themaster of the vessel, Victor Kavankov, beside him. After a briefing of Gavino by Kavankov of theparticulars of the vessel and its cargo, the vessel lifted anchor from the quarantine anchorage andproceeded to the Manila International Port. The sea was calm and the wind was ideal for dockingmaneuvers.

When the vessel reached the landmark (the big church by the Tondo North Harbor) one-half mile from thepier, Gavino ordered the engine stopped. When the vessel was already about 2,000 feet from the pier,Gavino ordered the anchor dropped. Kavankov relayed the orders to the crew of the vessel on the bow.The left anchor, with two (2) shackles, were dropped. However, the anchor did not take hold as expected.The speed of the vessel did not slacken. A commotion ensued between the crew members. A brief conference ensued between Kavankov and the crew members. When Gavino inquired what was all thecommotion about, Kavankov assured Gavino that there was nothing to it.

After Gavino noticed that the anchor did not take hold, he ordered the engines half-astern. Abellana, whowas then on the pier apron, noticed that the vessel was approaching the pier fast. Kavankov likewise

noticed that the anchor did not take hold. Gavino thereafter gave the "full-astern" code. Before the rightanchor and additional shackles could be dropped, the bow of the vessel rammed into the apron of the piercausing considerable damage to the pier. The vessel sustained damage too, ( Exhibit "7-Far Eastern Shipping ). Kavankov filed his sea protest (Exhibit "1-Vessel" ). Gavino submitted his report to the Chief Pilot (Exhibit "1-Pilot" ) who referred the report to the Philippine Ports Authority (Exhibit 2-Pilot" ). Abellanalikewise submitted his report of the incident (Exhibit "B" ).

Per contract and supplemental contract of the Philippine Ports Authority and the contractor for therehabilitation of the damaged pier, the same cost the Philippine Ports Authority the amount of P1,126,132.25 (Exhibits "D" and "E" ).

3

On January 10, 1983, the Philippine Ports Authority (PPA, for brevity), through the Solicitor General, filed before theRegional Trial Court of Manila, Branch 39, a complaint for a sum of money against Far Eastern Shipping Co., Capt. Senen



C. Gavino and the Manila Pilots' Association, docketed as Civil Case No. 83-14958,4 praying that the defendants therein

be held jointly and severally liable to pay the plaintiff actual and exemplary damages plus costs of suit. In a decision dated August 1, 1985, the trial court ordered the defendants therein jointly and severally to pay the PPA the amount of P1,053,300.00 representing actual damages and the costs of suit.

5

The defendants appealed to the Court of Appeals and raised the following issues: (1) Is the pilot of a commercial vessel,under compulsory pilotage, solely liable for the damage caused by the vessel to the pier, at the port of destination, for hisnegligence? and (2) Would the owner of the vessel be liable likewise if the damage is caused by the concurrentnegligence of the master of the vessel and the pilot under a compulsory pilotage?

As stated at the outset, respondent appellate court affirmed the findings of the court a quo except that if found noemployer-employee relationship existing between herein private respondents Manila Pilots' Association (MPA, for short)and Capt. Gavino.

6This being so, it ruled instead that the liability of MPA is anchored, not on Article 2180 of the Civil

Code, but on the provisions of Customs Administrative Order No. 15-65,7

and accordingly modified said decision of thetrial court by holding MPA, along with its co-defendants therein, still solidarily liable to PPA but entitled MPA toreimbursement from Capt. Gavino for such amount of the adjudged pecuniary liability in excess of the amount equivalentto seventy-five percent (75%) of its prescribed reservefund.

8

Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA was happy with the decision of the Court of Appeals and bothof them elevated their respective plaints to us via separate petitions for review on certiorari .

In G. R. No. 130068, which was assigned to the Second Division of this Court, FESC imputed that the Court of Appealsseriously erred:

1. in not holding Senen C. Gavino and the Manila Pilots' Association as the parties solely responsible for the resulting damages sustained by the pier deliberately ignoring the established jurisprudence on thematter;

2. in holding that the master had not exercised the required diligence demanded from him by thecircumstances at the time the incident happened;

3. in affirming the amount of damages sustained by the respondent Philippine Ports Authority despite astrong and convincing evidence that the amount is clearly exorbitant and unreasonable;

4. in not awarding any amount of counterclaim prayed for by the petitioner in its answer; and

5. in not granting herein petitioner's claim against pilot Senen C. Gavino and Manila Pilots' Association inthe event that it be heldliable.

9

Petitioner asserts that since the MV PAVLODAR was under compulsory pilotage at the time of the incident, it was thecompulsory pilot, Capt. Gavino, who was in command and had complete control in the navigation and docking of thevessel. It is the pilot who supersedes the master for the time being in the command and navigation of a ship and hisorders must be obeyed in all respects connected with her navigation. Consequently, he was solely responsible for thedamage caused upon the pier apron, and not the owners of the vessel. It claims that the master of the boat did not commitany act of negligence when he failed to countermand or overrule the orders of the pilot because he did not see any

justifiable reason to do so. In other words, the master cannot be faulted for relying absolutely on the competence of thecompulsory pilot. If the master does not observe that a compulsory pilot is incompetent or physically incapacitated, themaster is justified in relying on the pilot.

10

Respondent PPA, in its comment, predictably in full agreement with the ruling of respondent court on the solidary liabilityof FESC, MPA and Capt. Gavino, stresses the concurrent negligence of Capt. Gavino, the harbor pilot, and Capt. Viktor Kabankov, * shipmaster of MV Pavlodar, as the basis of their solidary liability for damages sustained by PPA. It posits thatthe vessel was being piloted by Capt. Gavino with Capt. Kabankov beside him all the while on the bridge of the vessel, asthe former took over the helm of MV Pavlodar when it rammed and damaged the apron of the pier of Berth No. 4 of theManila International Port. Their concurrent negligence was the immediate and proximate cause of the collision betweenthe vessel and the pier — Capt. Gavino, for his negligence in the conduct of docking maneuvers for the safe berthing of the vessel; and Capt. Kabankov, for failing to countermand the orders of the harbor pilot and to take over and steer the



vessel himself in the face of imminent danger, as well as for merely relying on Capt. Gavino during the berthingprocedure.

11

On the other hand, in G.R. No. 130150, originally assigned to the Court's First Division and later transferred to the ThirdDivision. MPA, now as petitioner in this case, avers that respondent court's errors consisted in disregarding andmisinterpreting Customs Administrative Order No. 15-65 which limits the liability of MPA. Said pilots' associationasseverates that it should not be held solidarily liable with Capt. Gavino who, as held by respondent court is only amember, not an employee, thereof. There being no employer-employee relationship, neither can MPA be held liable for any vicarious liability for the respective exercise of profession by its members nor be considered a joint tortfeasor as to be

held jointly and severally liable.

12

It further argues that there was erroneous reliance on Customs Administrative Order No. 15-65 and the constitution and by-laws of MPA, instead of the provisions of the Civil Code on damages which, being asubstantive law, is higher in category than the aforesaid constitution and by-laws of a professional organization or anadministrative order which bears no provision classifying the nature of the liability of MPA for the negligence its member pilots.

13

As for Capt. Gavino, counsel for MPA states that the former had retired from active pilotage services since July 28, 1994and has ceased to be a member of petitioner pilots' association. He is not joined as a petitioner in this case since hiswhereabouts are unknown.

14

FESC's comment thereto relied on the competence of the Court of Appeals in construing provisions of law or administrative orders as bases for ascertaining the liability of MPA, and expressed full accord with the appellate court'sholding of solidary liability among itself, MPA and Capt. Gavino. It further avers that the disputed provisions of Customs

Administrative Order No. 15-65 clearly established MPA's solidary liability.

15

On the other hand, public respondent PPA, likewise through representations by the Solicitor General, assumes the samesupportive stance it took in G.R. No. 130068 in declaring its total accord with the ruling of the Court of Appeals that MPAis solidarily liable with Capt. Gavino and FESC for damages, and in its application to the fullest extent of the provisions of Customs Administrative Order No. 15-65 in relation to MPA's constitution and by-laws which spell out the conditions of and govern their respective liabilities. These provisions are clear and unambiguous as regards MPA's liability without needfor interpretation or construction. Although Customs Administrative Order No. 15-65 is a mere regulation issued by anadministrative agency pursuant to delegated legislative authority to fix details to implement the law, it is legally bindingand has the same statutory force as any valid statute.

16

Upon motion17

by FESC dated April 24, 1998 in G.R. No. 130150, said case was consolidated with G.R. No. 130068.18

Prefatorily, on matters of compliance with procedural requirements, it must be mentioned that the conduct of therespective counsel for FESC and PPA leaves much to be desired, to the displeasure and disappointment of this Court.

Sec. 2, Rule 42 of the 1997 Rules of Civil Procedure19

incorporates the former Circular No. 28-91 which provided for whathas come to be known as the certification against forum shopping as an additional requisite for petitions filed with theSupreme Court and the Court of Appeals, aside from the other requirements contained in pertinent provisions of the Rulesof Court therefor, with the end in view of preventing the filing of multiple complaints involving the same issues in theSupreme Court, Court of Appeals or different divisions thereof or any other tribunal or agency.

More particularly, the second paragraph of Section 2, Rule 42 provides:

xxx xxx xxx

The petitioner shall also submit together with the petition a certification under oath that he has nottheretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom . (Emphasis ours.)

For petitions for review filed before the Supreme Court, Section 4(e), Rule 45 specifically requires that suchpetition shall contain a sworn certification against forum shopping as provided in the last paragraph of Section 2,Rule 42.



The records show that the law firm of Del Rosario and Del Rosario through its associate, Atty. Herbert A. Tria, is thecounsel of record for FESC in both G.R. No. 130068 and G.R. No. 130150.

G.R. No. 130068, which is assigned to the Court's Second Division, commenced with the filing by FESC through counselon August 22, 1997 of a verified motion for extension of time to file its petition for thirty (30) days from August 28, 1997 or until September 27, 1997.

20Said motion contained the following certification against forum shopping

21signed by Atty.

Herbert A. Tria as affiant:

CERTIFICATION

AGAINST FORUM SHOPPING

I/we hereby certify that I/we have not commenced any other action or proceeding involving the sameissues in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that to the best of myown knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; that if I/we should thereafter learn that a similar action or proceeding hasbeen filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency,I/we undertake to report that fact within five (5) days therefrom to this Honorable Court.

This motion having been granted, FESC subsequently filed its petition on September 26, 1997, this time bearing a"verification and certification against forum-shopping" executed by one Teodoro P. Lopez on September 24,1997,

22to wit:

VERIFICATION AND CERTIFICATION

AGAINST FORUM SHOPPING

in compliance with Section 4(e), Rule 45 in relation

to Section 2, Rule 42 of the Revised Rules of Civil Procedure

I, Teodoro P. Lopez, of legal age, after being duly sworn, depose and state:

1. That I am the Manager, Claims Department of Filsov Shipping Company, the local agent of petitioner in

this case.

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

3. That I have read the same and the allegations therein contained are true and correct based on therecords of this case.

4. That I certify that petitioner has not commenced any other action or proceeding involving the sameissues in the Supreme Court or Court of Appeals, or any other tribunal or agency, that to the best of my own knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals or any other tribunal or agency, that if I should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or agency, I

undertake to report the fact within five (5) days therefrom to this Honorable Court . (Italics supplied for emphasis.)

Reviewing the records, we find that the petition filed by MPA in G.R. No. 130150 then pending with the Third Division wasduly filed on August 29, 1997 with a copy thereof furnished on the same date by registered mail to counsel for FESC.

23Counsel of record for MPA. Atty. Jesus P. Amparo, in his verification accompanying said petition dutifully

revealed to the Court that —

xxx xxx xxx

3. Petitioner has not commenced any other action or proceeding involving the same issues in thisHonorable Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, but



to the best of his knowledge, there is an action or proceeding pending in this Honorable Court, entitled Far Eastern Shipping Co., Petitioner, vs. Philippine Ports Authority and Court of Appeals with a Motion for Extension of time to file Petition For Review by Certiorari filed sometime on August 18, 1987 . If undersigned counsel will come to know of any other pending action or claim filed or pending heundertakes to report such fact within five (5) days to this Honorable Court.

24(Emphasis supplied.)

Inasmuch as MPA's petition in G.R. No. 130150 was posted by registered mail on August 29, 1997 and taking judicialnotice of the average period of time it takes local mail to reach its destination, by reasonable estimation it would be fair toconclude that when FESC filed its petition in G.R. No. 130068 on September 26, 1997, it would already have received a

copy of the former and would then have knowledge of the pendency of the other petition initially filed with the FirstDivision. It was therefore incumbent upon FESC to inform the Court of that fact through its certification against forumshopping. For failure to make such disclosure, it would appear that the aforequoted certification accompanying the petitionin G.R. No. 130068 is defective and could have been a ground for dismissal thereof.

Even assuming that FESC had not yet received its copy of MPA's petition at the time it filed its own petition and executedsaid certification, its signatory did state "that if I should thereafter learn that a similar action or proceeding has been filed oris pending before the Supreme Court, the Court of Appeals or any other tribunal or agency, I undertake to report the factwithin five (5) days therefrom to this Honorable Court."

25Scouring the records page by page in this case, we find that no

manifestation concordant with such undertaking was then or at any other time thereafter ever filed by FESC nor was thereany attempt to bring such matter to the attention of the Court. Moreover, it cannot feign non-knowledge of the existence ofsuch other petition because FESC itself filed the motion for consolidation in G.R. No. 130150 of these two cases on April24, 1998.

It is disturbing to note that counsel for FESC, the law firm of Del Rosario and Del Rosario, displays an unprofessionaltendency of taking the Rules for granted, in this instance exemplified by its pro forma compliance therewith but apparentlywithout full comprehension of and with less than faithful commitment to its undertakings to this Court in the interest of just,speedy and orderly administration of court proceedings.

As between the lawyer and the courts, a lawyer owes candor, fairness and good faith to the court.26

He is an officer of thecourt exercising a privilege which is indispensable in the administration of justice.

27Candidness, especially towards the

courts, is essential for the expeditious administration of justice. Courts are entitled to expect only complete honesty fromlawyers appearing and pleading before them.

28Candor in all dealings is the very essence of honorable membership in

the legal profession.29

More specifically, a lawyer is obliged to observe the rules of procedure and not to misuse them todefeat the ends of justice.

30It behooves a lawyer, therefore, to exert every effort and consider it his duty to assist in the

speedy and efficient administration of justice.31

Being an officer of the court, a lawyer has a responsibility in the proper

administration of justice. Like the court itself, he is an instrument to advance its ends — the speedy, efficient, impartial,correct and inexpensive adjudication of cases and the prompt satisfaction of final judgments. A lawyer should not onlyhelp attain these objectives but should likewise avoid any unethical or improper practices that impede, obstruct or preventtheir realization, charged as he is with the primary task of assisting in the speedy and efficient administration of justice.

32

Sad to say, the members of said law firm sorely failed to observe their duties as responsible members of the Bar. Their actuations are indicative of their predisposition to take lightly the avowed duties of officers of the Court to promote respectfor law and for legal processes.

33We cannot allow this state of things to pass judicial muster.

In view of the fact that at around the time these petitions were commenced, the 1997 Rules of Civil Procedure had justtaken effect, the Court treated infractions of the new Rules then with relative liberality in evaluating full compliancetherewith. Nevertheless, it would do well to remind all concerned that the penal provisions of Circular No. 28-91 whichremain operative provides, inter alia :

3. Penalties . —

xxx xxx xxx

(c) The submission of a false certification under Par. 2 of the Circular shall likewise constitute contempt ofcourt, without prejudice to the filing of criminal action against the guilty party. The lawyer may also besubjected to disciplinary proceedings.

It must be stressed that the certification against forum shopping ordained under the Rules is to be executed bythepetitioner , and not by counsel. Obviously it is the petitioner, and not always the counsel whose professional serviceshave been retained for a particular case, who is in the best position to know whether he or it actually filed or caused the



filing of a petition in that case. Hence, a certification against forum shopping by counsel is a defective certification. It isclearly equivalent to non-compliance with the requirement under Section 2, Rule 42 in relation to Section 4, Rule 45, andconstitutes a valid cause for dismissal of the petition.

Hence, the initial certification appended to the motion for extension of time to file petition in G.R. No. 130068 executed inbehalf of FESC by Atty. Tria is procedurally deficient. But considering that it was a superfluity at that stage of theproceeding, it being unnecessary to file such a certification with a mere motion for extension, we shall disregard sucherror. Besides, the certification subsequently executed by Teodoro P. Lopez in behalf of FESC cures that defect to acertain extent, despite the inaccuracies earlier pointed out. In the same vein, we shall consider the verification signed in

behalf of MPA by its counsel, Atty. Amparo, in G.R. No. 130150 as substantial compliance inasmuch as it served thepurpose of the Rules of informing the Court of the pendency of another action or proceeding involving the same issues.

It bears stressing that procedural rules are instruments in the speedy and efficient administration of justice. They shouldbe used to achieve such end and not to derail it.

34

Counsel for PPA did not make matters any better. Despite the fact that, save for the Solicitor General at the time, thesame legal team of the Office of the Solicitor General (OSG, for short) composed of Assistant Solicitor General Roman G.Del Rosario and Solicitor Luis F. Simon, with the addition of Assistant Solicitor General Pio C. Guerrero very much later inthe proceedings, represented PPA throughout the appellate proceedings in both G.R. No. 130068 and G.R. No. 130150and was presumably fully acquainted with the facts and issues of the case, it took the OSG an inordinately and almostunreasonably long period of time to file its comment, thus unduly delaying the resolution of these cases. It took severalchanges of leadership in the OSG — from Silvestre H. Bello III to Romeo C. dela Cruz and, finally, Ricardo P. Galvez —

before the comment in behalf of PPA was finally filed.

In G.R. No. 130068, it took eight (8) motions for extension of time totaling 210 days, a warning that no further extensionsshall be granted, and personal service on the Solicitor General himself of the resolution requiring the filing of suchcomment before the OSG indulged the Court with the long required comment on July 10, 1998.

35This, despite the fact

that said office was required to file its comment way back on November 12, 1997.36

A closer scrutiny of the recordslikewise indicates that petitoner FESC was not even furnished a copy of said comment as required by Section 5, Rule 42.Instead, a copy thereof was inadvertently furnished to MPA which, from the point of view of G.R. No. 130068, was a non-party.

37The OSG fared slightly better in G.R. No. 130150 in that it took only six (6) extensions, or a total of 180 days,

before the comment was finally filed.38

And while it properly furnished petitioner MPA with a copy of its comment, it wouldhave been more desirable and expedient in this case to have furnished its therein co-respondent FESC with a copythereof, if only as a matter of professional courtesy.

39

This undeniably dilatory disinclination of the OSG to seasonably file required pleadings constitutes deplorable disserviceto the tax-paying public and can only be categorized as censurable inefficiency on the part of the government law office.This is most certainly professionally unbecoming of the OSG.

Another thing that baffles the Court is why the OSG did not take the inititive of filing a motion for consolidation in either G.R. No. 130068 or G.R. No. 130150, considering its familiarity with the background of the case and if only to make its jobeasier by having to prepare and file only one comment. It could not have been unaware of the pendency of one or theother petition because, being counsel for respondent in both cases, petitioner is required to furnish it with a copy of thepetition under pain of dismissal of the petition for failure otherwise.

40

Besides, in G.R. 130068, it prefaces its discussions thus —

Incidentally, the Manila Pilots' Association (MPA), one of the defendants-appellants in the case before the

respondent Court of Appeals, has taken a separate appeal from the said decision to this Honorable Court,which was docketed as G.R. No. 130150 and entitled "Manila Pilots' Association, Petitioner, versusPhilippine Ports Authority and Far Eastern Shipping Co., Respondents."

41

Similarly, in G.R. No. 130150, it states —

Incidentally, respondent Far Eastern Shipping Co. (FESC) had also taken an appeal from the saiddecision to this Honorable Court, docketed as G.R. No. 130068, entitled "Far Eastern Shipping Co. vs.Court of Appeals and Philippine Ports Authority."

42



We find here a lackadaisical attitude and complacency on the part of the OSG in the handling of its cases and an almostreflexive propensity to move for countless extensions, as if to test the patience of the Court, before favoring it with thetimely submission of required pleadings.

It must be emphasized that the Court can resolve cases only as fast as the respective parties in a case file the necessarypleadings. The OSG, by needlessly extending the pendency of these cases through its numerous motions for extension,came very close to exhausting this Court's forbearance and has regrettably fallen short of its duties as the People'sTribune.

The OSG is reminded that just like other members of the Bar, the canons under the Code of Professional Responsibilityapply with equal force on lawyers in government service in the discharge of their official tasks.

43These ethical duties are

rendered even more exacting as to them because, as government counsel, they have the added duty to abide by thepolicy of the State to promote a high standard of ethics in public service.

44Furthermore, it is incumbent upon the OSG, as

part of the government bureaucracy, to perform and discharge its duties with the highest degree of professionalism,intelligence and skill

45and to extend prompt, courteous and adequate service to the public.

46

Now, on the merits of the case. After a judicious examination of the records of this case, the pleadings filed, and theevidence presented by the parties in the two petitions, we find no cogent reason to reverse and set aside the questioneddecision. While not entirely a case of first impression, we shall discuss the issues seriatim and, correlatively by way of a judicial once-over, inasmuch as the matters raised in both petitions beg for validation and updating of well -worn maritime jurisprudence. Thereby, we shall write finis to the endless finger-pointing in this shipping mishap which has been stretchedbeyond the limits of judicial tolerance.

The Port of Manila is within the Manila Pilotage District which is under compulsory pilotage pursuant to Section 8, ArticleIII of Philippine Ports Authority Administrative Order No. 03-85,

47which provides that:

Sec. 8. Compulsor Pilotage Service . — For entering a harbor and anchoring thereat, or passing throughrivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf, or shiftingfrom one berth or another, every vessel engaged in coastwise and foreign trade shall be under compulsory pilotage. . . .

In case of compulsory pilotage, the respective duties and responsibilities of the compulsory pilot and the master havebeen specified by the same regulation in this wise:

Sec. 11. Control of vessels and liability for damage . — On compulsory pilotage grounds, the Harbor Pilot

providing the service to a vessel shall be responsible for the damage caused to a vessel or to life andproperty at ports due to his negligence or fault. He can only be absolved from liability if the accident iscaused by force majeure or natural calamities provided he has exercised prudence and extra diligence toprevent or minimize damage.

The Master shall retain overall command of the vessel even on pilotage grounds whereby he cancountermand or overrule the order or command of the Harbor Pilot on beard. In such event, any damagecaused to a vessel or to life and property at ports by reason of the fault or negligence of the Master shallbe the responsibility and liability of the registered owner of the vessel concerned without prejudice torecourse against said Master.

Such liability of the owner or Master of the vessel or its pilots shall be determined by competent authorityin appropriate proceedings in the light of the facts and circumstances of each particular case.

Sec. 32. Duties and responsibilities of the Pilot or Pilots' Association. — The duties and responsibilities of the Harbor Pilot shall be as follows:

xxx xxx xxx

f) a pilot shall be held responsible for the direction of a vessel from the time he assumes his work as apilot thereof until he leaves it anchored or berthed safely; Provided , however, that his responsibility shallcease at the moment the Master neglects or refuses to carry out hisorder.



Customs Administrative Order No. 15-65 issued twenty years earlier likewise provided in Chapter I thereof for theresponsibilities of pilots:

Par. XXXIX. — A Pilot shall be held responsible for the direction of a vessel from the time he assumescontrol thereof until he leaves it anchored free from shoal: Provided , That his responsibility shall cease atthe moment the master neglects or refuses to carry out his instructions.

xxx xxx xxx

Par. XLIV. — Pilots shall properly and safely secure or anchor vessels under their control when requestedto do so by the master of such vessels.

I. G.R. No. 130068

Petitioner FESC faults the respondent court with serious error in not holding MPA and Capt. Gavino solely responsible for the damages cause to the pier. It avers that since the vessel was under compulsory pilotage at the time with Capt. Gavinoin command and having exclusive control of the vessel during the docking maneuvers, then the latter should beresponsible for damages caused to the pier.

48It likewise holds the appellate court in error for holding that the master of

the ship, Capt. Kabankov, did not exercise the required diligence demanded by the circumstances.49

We start our discussion of the successive issues bearing in mind the evidentiary rule in American jurisprudence that thereis a presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. Inadmiralty, this presumption does more than merely require the ship to go forward and produce some evidence on thepresumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by thefault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust everyreasonable possibility which the circumstances admit and show that in each, they did all that reasonable carerequired.

50In the absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which

collides with a fixed object and makes a prima facie case of fault against the vessel.51

Logic and experience support thispresumption:

The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is nor sufficientfor the respondent to produce witnesses who testify that as soon as the danger became apparenteverything possible was done to avoid an accident. The question remains, How then did the collisionoccur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too

little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidablecollision would occur.

52

The task, therefore, in these cases is to pinpoint who was negligent — the master of the ship, the harbor pilot or both.

A pilot, in maritime law, is a person duly qualified, and licensed, to conduct a vessel into or out of ports, or in certainwaters. In a broad sense, the term "pilot" includes both (1) those whose duty it is to guide vessels into or out of ports, or inparticular waters and (2) those entrusted with the navigation of vessels on the high seas.

53However, the term "pilot" is

more generally understood as a person taken on board at a particular place for the purpose of conducting a ship througha river, road or channel, or from a port.

54

Under English and American authorities, generally speaking, the pilot supersedes the master for the time being in thecommand and navigation of the ship, and his orders must be obeyed in all matters connected with her navigation. Hebecomes the master pro hac vice and should give all directions as to speed, course, stopping and reversing anchoring,towing and the like. And when a licensed pilot is employed in a place where pilotage is compulsory, it is his duty to insiston having effective control of the vessel, or to decline to act as pilot. Under certain systems of foreign law, the pilot doesnot take entire charge of the vessel, but is deemed merely the adviser of the master, who retains command and control of the navigation even in localities where pilotage is compulsory.

55

It is quite common for states and localities to provide for compulsory pilotage, and safety laws have been enactedrequiring vessels approaching their ports, with certain exceptions, to take on board pilots duly licensed under local law.The purpose of these laws is to create a body of seamen thoroughly acquainted with the harbor, to pilot vessels seekingto enter or depart, and thus protect life and property from the dangers of navigation.

56



In line with such established doctrines, Chapter II of Customs Administrative Order No. 15-65 prescribes the rules for compulsory pilotage in the covered pilotage districts, among which is the Manila Pilotage District,viz . —

PARAGRAPH I. — Pilotage for entering a harbor and anchoring thereat, as well as docking andundocking in any pier or shifting from one berth to another shall be compulsory, except Governmentvessels and vessels of foreign governments entitled to courtesy, and other vessels engaged solely in riveror harbor work, or in a daily ferry service between ports which shall be exempt from compulsory pilotageprovisions of these regulations: provided , however, that compulsory pilotage shall not apply in pilotage

districts whose optional pilotage is allowed under these regulations.

Pursuant thereto, Capt. Gavino was assigned to pilot MV Pavlodar into Berth 4 of the Manila International Port. Uponassuming such office as compulsory pilot, Capt. Gavino is held to the universally accepted high standards of care anddiligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends superior to and more to be trusted than that of the master.

57 A pilot 57 should have

a thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and thewaters for which he is licensed, such as a particular harbor or river.

He is not held to the highest possible degree of skill and care, but must have and exercise the ordinary skill and caredemanded by the circumstances, and usually shown by an expert in his profession. Under extraordinary circumstancesm,a pilot must exercise extraordinary care.

58

In Atlee vs. The Northwesrern Union Packet Company .59

Mr. Justice Miller spelled out in great detail the duties of a pilot:

. . . (T)he pilot of a river steamer, like the harbor pilot, is selected for his personal knowledge of thetopography through which he steers his vessel. In the long course of a thousand miles in one of theserivers, he must be familiar with the appearance of the shore on each side of the river as he goes along. Itsbanks, towns, its landings, its houses and trees, are all landmarks by which he steers his vessel. Thecompass is of little use to him. He must know where the navigable channel is, in its relation to all theseexternal objects, especially in the night. He must also be familiar with all dangers that are permanentlylocated in the course of the river, as sand-bars, snags, sunken rocks or trees or abandoned vesselsorbarges. All this he must know and remember and avoid. To do this, he must be constantly informed of the changes in the current of the river, of the sand-bars newly made,of logs or snags, or other objectsnewly presented, against which his vessel might be injured.

xxx xxx xxx

It may be said that this is exacting a very high order of ability in a pilot. But when we consider the value of the lives and property committed to their control, for in this they are absolute masters, the highcompensation they receive, the care which Congress has taken to secure by rigid and frequentexaminations and renewal of licenses, this very class of skill, we do not think we fix the standard too high.

Tested thereby, we affirm respondent court's finding that Capt. Gavino failed to measure up to such strict standard of careand diligence required of pilots in the performance of their duties. Witness this testimony of Capt. Gavino:

Court: You have testified before that the reason why the vessel bumped the pier wasbecause the anchor was not released immediately or as soon as you have given theorder. Do you remember having srated that?

A Yes, your Honor.

Q And you gave this order to the captain of the vessel?

A Yes, your Honor.

Q By that testimony, you are leading the Court to understand that if that anchor wasreleased immediately at the time you gave the order, the incident would not havehappened. Is that correct?



A Yes, sir, but actually it was only a presumption on my part because there was acommotion between the officers who are in charge of the dropping of the anchor and thecaptain. I could not understand their language, it was in Russian, so I presumed theanchor was not dropped on time.

Q So, you are not sure whether it was really dropped on time or not?

A I am not sure, your Honor.

xxx xxx xxx

Q You are not even sure what could have caused the incident. What factor could havecaused the incident?

A Well, in this case now, because either the anchor was not dropped on time or theanchor did not hold, that was the cause of the incident, your Honor.

60

It is disconcertingly riddled with too much incertitude and manifests a seeming indifference for the possibly injuriousconsequences his commands as pilot may have. Prudence required that he, as pilot, should have made sure that hisdirections were promptly and strictly followed. As correctly noted by the trial court —

Moreover, assuming that he did indeed give the command to drop the anchor on time, as pilot he shouldhave seen to it that the order was carried out, and he could have done this in a number of ways, one of which was to inspect the bow of the vessel where the anchor mechanism was installed. Of course,Captain Gavino makes reference to a commotion among the crew members which supposedly causedthe delay in the execution of the command. This account was reflected in the pilot's report prepared four hours later, but Capt. Kavankov, while not admitting whether or not such a commotion occurred,maintained that the command to drop anchor was followed "immediately and precisely." Hence, the Courtcannot give much weight or consideration to this portion of Gavino's testimony."

61

An act may be negligent if it is done without the competence that a reasonable person in the position of the actor wouldrecognize as necessary to prevent it from creating an unreasonable risk of harm to another.

62Those who undertake any

work calling for special skills are required not only to exercise reasonable care in what they do but also possess astandard minimum of special knowledge and ability.

63

Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills hepossesses, with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offershis services he is understood as holding himself out to the public as possessing the degree of skill commonly possessedby others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every manwho employs him in reliance on his public profession.

64

Furthermore, there is an obligation on all persons to take the care which, under ordinary circumstances of the case, areasonable and prudent man would take, and the omission of that care constitutes negligence.

65Generally, the degree of

care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality which he uses. The greater the danger the greater the degree of care required. What isordinary under extraordinary of conditions is dictated by those conditions; extraordinary risk demands extraordinary care.Similarly, the more imminent the danger, the higher the degree of care.

66

We give our imprimatur to the bases for the conclusion of the Court of Appeals that Capt. Gavino was indeed negligent inthe performance of his duties:

xxx xxx xxx

. . . As can be gleaned from the logbook, Gavino ordered the left anchor and two (2) shackles dropped at8:30 o'clock in the morning. He ordered the engines of the vessel stopped at 8:31 o'clock. By then,Gavinomust have realized that the anchor did not hit a hard object and was not clawed so as to reduce themomentum of the vessel. In point of fact, the vessel continued travelling towards the pier at the samespeed. Gavino failed to react, At 8:32 o'clock, the two (2) tugboats began to push the stern part of thevessel from the port side bur the momentum of the vessel was not contained. Still, Gavino did not react.



He did not even order the other anchor and two (2) more shackles dropped to arrest the momentum of the vessel. Neither did he order full-astern. It was only at 8:34 o'clock, or four (4) minutes , after the anchorwas dropped that Gavino reacted. But his reaction was even (haphazard) because instead of arrestingfully the momentum of the vessel with the help of the tugboats, Gavino ordered merely "half-astern". Ittook Gavino another minute to order a "full-astern". By then, it was too late. The vessel's momentumcould no longer be arrested and, barely a minute thereafter, the bow of the vessel hit the apron of thepier. Patently, Gavino miscalculated. He failed to react and undertake adequate measures to arrest fullythe momentum of the vessel after the anchor failed to claw to the seabed. When he reacted, the samewas even (haphazard). Gavino failed to reckon the bulk of the vessel, its size and its cargo. Heerroneously believed that only one (1) anchor would suffice and even when the anchor failed to claw intothe seabed or against a hard object in the seabed, Gavino failed to order the other anchor droppedimmediately. His claim that the anchor was dropped when the vessel was only 1,000 feet from the pier isbut a belated attempt to extricate himself from the quagmire of his own insouciance and negligence. Insum, then, Appellants' claim that the incident was caused by "force majeure" is barren of factual basis.

xxx xxx xxx

The harbor pilots are especially trained for this job. In the Philippines, one may not be a harbor pilotunless he passed the required examination and training conducted then by the Bureau of Custom, under Customs Administrative Order No. 15-65, now under the Philippine Ports Authority under PPA Administrative Order 63-85, Paragraph XXXIX of the Customs Administrative Order No. 15-65 providesthat "the pilot shall be held responsible for the direction of the vessel from the time he assumes controlthereof, until he leaves it anchored free from shoal: Provided , that his responsibility shall cease atthe.moment the master neglects or refuse(s) to carry out his instructions." The overall direction regardingthe procedure for docking and undocking the vessel emanates from the harbor pilot. In the presentrecourse, Gavino failed to live up to his responsibilities and exercise reasonable care or that degree of care required by the exigencies of the occasion. Failure on his part to exercise the degree of caredemanded by the circumstances is negligence (Reese versus Philadelphia & RR Co. 239 US 363, 60 Led. 384, 57 Am Jur, 2d page 418).

67

This affirms the findings of the trial court regarding Capt. Gavino's negligence:

This discussion should not however, divert the court from the fact that negligence in manuevering thevessel must be attributed to Capt. Senen Gavino. He was an experienced pilot and by this time shouldhave long familiarized himself with the depth of the port and the distance he could keep between the

vessel and port in order to berth safely.

68

The negligence on the part of Capt. Gavino is evident; but Capt. Kabancov is no less responsible for the allision. Hisunconcerned lethargy as master of the ship in the face of troublous exigence constitutes negligence.

While it is indubitable that in exercising his functions a pilot is in sole command of the ship69

and supersedes the master for the time being in the command and navigation of a ship and that he becomes master pro hac vice of a vessel pilotedby him,

70there is overwhelming authority to the effect that the master does not surrender his vessel to the pilot and the

pilot is not the master. The master is still in command of the vessel notwithstanding the presence of a pilot. There areoccasions when the master may and should interfere and even displace the pilot, as when the pilot is obviouslyincompetent or intoxicated and the circumstances may require the master to displace a compulsory pilot because of incompetency or physical incapacity. If, however, the master does nor observe that a compulsory pilot is incompetent or physically incapacitated, the master is justified in relying on the pilot, but not blindly.

71

The master is not wholly absolved from his duties while a pilot is on board his vessel, and may advise with or offer suggestions to him. He is still in command of the vessel, except so far as her navigation is concerned, and must cause theordinary work of the vessel to be properly carried on and the usual precaution taken. Thus, in particular, he is bound tosee that there is sufficient watch on deck, and that the men are attentive to their duties, also that engines are stopped,towlines cast off, and the anchors clear and ready to go at the pilot's order.

72

A perusal of Capt. Kabankov's testimony makes it apparent that he was remiss in the discharge of his duties as master of the ship, leaving the entire docking procedure up to the pilot, instead of maintaining watchful vigilance over this riskymaneuver:



Q Will you please tell us whether you have the right to intervene in docking of your ship inthe harbor?

A No sir, I have no right to intervene in time of docking, only in case there is imminentdanger to the vessel and to the pier.

Q Did you ever intervene during the time that your ship was being docked by Capt.Gavino?

A No sir, I did not intervene at the time when the pilot was docking my ship.

Q Up to the time it was actually docked at the pier, is that correct?

A No sir, I did not intervene up to the very moment when the vessel was docked.

xxx xxx xxx

Atty. Del Rosario (to the witness)

Q Mr. Witness, what happened, if any, or was there anything unusual that happenedduring the docking?

A Yes sir, our ship touched ihe pier and the pier was damaged.

Court (to the witness)

Q When you said touched the pier, are you leading the court to understand that your shipbumped the pier?

A I believe that my vessel only touched the pier but the impact was very weak.

Q Do you know whether the pier was damaged as a result of that slight or weak impact?

A Yes sir, after the pier was damaged.

xxx xxx xxx

Q Being most concerned with the safety of your vessel, in the maneuvering of your vessel to the port, did you observe anything irregular in the maneuvering by Capt. Gavinoat the time he was trying to cause the vessel to be docked at the pier?

A You mean the action of Capt. Gavino or his condition?

Court:

Q Not the actuation that conform to the safety maneuver of the ship to the harbor?

A No sir, it was a usual docking.

Q By that statement of yours, you are leading the court to understand that there wasnothing irregular in the docking of the ship?

A Yes sir, during the initial period of the docking, there was nothing unusual thathappened.

Q What about in the last portion of the docking of the ship, was there anything unusual or abnormal that happened?



A None Your Honor, I believe that Capt. Gavino thought that the anchor could keep or hold the vessel.

Q You want us to understand, Mr. Witness, that the dropping of the anchor of the vesselwas nor timely?

A I don't know the depth of this port but I think, if the anchor was dropped earlier and withmore shackles, there could not have been an incident.

Q So you could not precisely tell the court that the dropping of the anchor was timerybecause you are not well aware of the seabed, is that correct?

A Yes sir, that is right.

xxx xxx xxx

Q Alright, Capt. Kavankov, did you come to know later whether the anchor held itsground so much so that the vessel could not travel?

A It is difficult for me to say definitely. I believe that the anchor did not hold the ship.

Q You mean you don't know whether the anchor blades stuck to the ground to stop theship from further moving?

A Yes sir, it is possible.

Q What is possible?

A I think, the 2 shackles were not enough to hold the vessel.

Q Did you know that the 2 shackles were dropped?

A Yes sir, I knew that.

Q If you knew that the shackles were not enough to hold the ship, did you not make anyprotest to the pilot?

A No sir, after the incident, that was my assumption.

Q Did you come to know later whether that presumption is correct?

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

Q So from the beginning, you were not competent whether the 2 shackles were alsodropped to hold the ship?

A No sir, at the beginning, I did not doubt it because I believe Capt. Gavino to be anexperienced pilot and he should be more aware as to the depths of the harbor and theground and I was confident in his actions.

xxx xxx xxx

Solicitor Abad (to the witness)

Q Now, you were standing with the pilot on the bridge of the vessel before the inicidenthappened, were you not?



A Yes sir, all the time, I was standing with the pilot.

Q And so whatever the pilot saw, you could also see from that point of view?

A That is right.

Q Whatever the piler can read from the panel of the bridge, you also could read, is thatcorrect?

A What is the meaning of panel?

Q All indications necessary for men on the bridge to be informed of the movements of theship?

A That is right.

Q And whatever sound the captain . . . Capt. Gavino would hear from the bridge, youcould also hear?

A That is right.

Q Now, you said that when the command to lower the anchor was given, it was obeyed,is that right?

A This command was executed by the third mate and boatswain.


Q Mr. Witness, earlier in today's hearing, you said that you did not intervene with theduties of the pilot and that, in your opinion, you can only intervene if the ship is placed inimminent danger, is that correct?

A That is right, I did say that.

Q In your observation before the incident actually happened, did you observe whether or not the ship, before the actual incident, the ship was placed in imminent danger?

A No sir, I did not observe.

Q By that answer, are you leading the court to understand that because you did notintervene and because you believed that it was your duty to intervene when the vessel isplaced in imminent danger to which you did not observe any imminent danger thereof,you have not intervened in any manner to the command of the pilot?

A That is right, sir.

xxx xxx xxx

Q Assuminp that you disagreed with the pilot regarding the step being taken by the pilotin maneuvering the vessel, whose command will prevail, in case of imminent danger tothe vessel?

A I did nor consider the situation as having an imminent danger. I believed that the vessewill dock alongside the pier.

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



A Yes sir, up to the very last moment, I believed that there was no imminent danger.

Q Because of that, did you ever intervene in the command of the pilot?

A Yes sir, I did not intervene because I believed that the command of the pilot to becorrect.


Q As a captain of M/V Pavlodar, you consider docking maneuvers a serious matter, is itnot?


Q Since it affects not only the safety of the port or pier, but also the safety of the vesseland the cargo, is it not?

A That is right.

Q So that, I assume that you were watching Capt. Gavino very closely at the time he wasmaking his commands?

A I was close to him, I was hearing his command and being executed.

Q And that you were also alert for any possible mistakes he might commit in themaneuvering of the vessel?


Q But at no time during the maneuver did you issue order contrary to the orders Capt.Gavino made?

A No sir.

Q So that you were in full accord with all of Capt. Gavino's orders?

A Yes sir.

Q Because, otherwise, you would have issued order that would supersede his ownorder?

A In that case, I should t,ke him away from his command or remove the command fromhim.


Q You were in full accord with the steps being taken by Capt. Gavino because you reliedon his knowledge, on his familiarity of the seabed and shoals and other surroundings or conditions under the sea, is that correct?


xxx xxx xxx




Q And so after the anchors were ordered dropped and they did not take hold of theseabed, you were alerted that there was danger already on hand?

A No sir, there was no imminent danger to the vessel.

Q Do you mean to tell us that even if the anchor was supposed to take hold of the bottomand it did not, there was no danger to the ship?

A Yes sir, because the anchor dragged on the ground later.

Q And after a few moments when the anchor should have taken hold the seabed bur notdone (sic ), as you expected, you already were alerted that there was danger to the ship,is that correct?

A Yes sir, I was alerted but there was no danger.

Q And you were alerted that somebody was wrong?

A Yes sir, I was alerted.

Q And this alert vou assumed was the ordinary alertness that you have for normal

docking?

A Yes sir, I mean that it was usual condition of any man in time of docking to be alert.

Q And that is the same alertness when the anchor did not hold onto the ground, is thatcorrect?

A Yes sir, me and Capt. Gavino (thought) that the anchor will hold the ground.

Q Since, as you said that you agreed all the while with the orders of Capt. Gavino, youalso therefore agreed with him in his failure to take necessary precaution against theeventuality that the anchor will not hold as expected?

Atty. Del Rosario:

May I ask that the question . . .

Solicitor Abad:

Never mind, I will reform the question.

xxx xxx xxx


Q Is it not a fact that the vessel bumped the pier?

A That is right, it bumped the pier.

Q For the main reason that the anchor of the vessel did not hold the ground as expected?

A Yes sir, that is my opinion.73

Further, on redirect examination, Capt. Kabankov fortified his apathetic assessment of the situation:



Q Now, after the anchor was dropped, was there any point in time that you felt that thevessel was in imminent danger.

A No, at that time, the vessel was not in imminent, danger, sir.74

This cavalier appraisal of the event by Capt. Kabankov is disturbingly antipodal to Capt. Gavino's anxious assessment of the situation:

Q When a pilot is on board a vessel, it is the piler's command which should be followed at

that moment until the vessel is, or goes to port or reaches port?

A Yes, your Honor, but it does not take away from the Captain his prerogative tocountermand the pilot.

Q In what way?

A In any case, which he thinks the pilot is not maneuvering correctly, the Captain alwayshas the prerogative to countermand the pilot's order.

Q But insofar as competence, efficiency and functional knowledee of the seabed whichare vital or decisive in the safety (sic ) bringing of a vessel to the port, he is not

competent?

A Yes, your Honor. That is why they hire a pilot in an advisory capacity, but still, thesafety of the vessel rest(s) upon the Captain, the Master of the vessel.

Q In this case, there was not a disagreement between you and the Captain of the vesselin the bringing of the vessel to port?

A No, your Honor.

Court:

May proceed.

Atty. Catris:

In fact, the Master of the vessel testified here that he was all along in conformity with theorders you, gave to him, and, as matter of fact, as he said, he obeyed all your orders.Can you tell, if in the course of giving such normal orders for the saf(e) docking of the MVPavlodar, do you remember of any instance that the Master of the vessel did not obeyyour command for the safety docking of the MV Pavlodar?

Atty. del Rosario:

Already answered, he already said yes sir.

Court:

Yes, he has just answered yes sir to the Court that there was no disagreement insofar asthe bringing of the vessel safely to the port.

Atty. Catris:

But in this instance of docking of the MV Pavlodar, do you remember of a time during thecourse of the docking that the MV Pavlodar was in imminent danger of bumping the pier?



A When we were about more than one thousand meters from the pier, I think, the anchor was not holding, so I immediately ordered to push the bow at a fourth quarter, at the backof the vessel in order to swing the bow away from the pier and at the same time, Iordered for a full astern of the engine.

75

These conflicting reactions can only imply, at the very least, unmindful disregard or, worse, neglectfulrelinquishment of duty by the shipmaster, tantamount to negligence.

The findings of the trial court on this aspect is noteworthy:

For, while the pilot Gavino may indeed have been charged with the task of docking the vessel in theberthing space, it is undisputed that the master of the vessel had the corresponding duty to countermandany of the orders made by the pilot, and even maneuver the vessel himself, in case of imminent danger tothe vessel and the port.

In fact, in his testimony, Capt. Kavankov admitted that all throughour the man(eu)vering procedures hedid not notice anything was going wrong, and even observed that the order given to drop the anchor wasdone at the proper time. He even ventured the opinion that the accident occurred because the anchor failed to take hold but that this did not alarm him because.there was still time to drop a second anchor.

Under normal circumstances, the abovementioned facts would have caused the master of a vessel totake charge of the situation and see to the man(eu)vering of the vessel himself. Instead, Capt. Kavankov

chose to rely blindly upon his pilot, who by this time was proven ill-equipped to cope with the situation.

xxx xxx xxx

It is apparent that Gavino was negligent but Far Eastern's employee Capt. Kavankov was no lesssresponsible for as master of the vessel he stood by the pilot during the man(eu)vering procedures andwas privy to every move the latter made, as well as the vessel's response to each of the commands. Hischoice to rely blindly upon the pilot's skills, to the point that despite being appraised of a notice of alert hecontinued to relinquish control of the vessel to Gavino, shows indubitably that he was not performing hisduties with the diligence required of him and therefore may be charged with negligence along withdefend;int Gavino.

76

As correctly affirmed by the Court of Appeals —

We are in full accord with the findings and disquisitions of the Court a quo .

In the present recourse, Captain Viktor Kavankov had been a mariner for thirty-two years before theincident. When Gavino was (in) the command of the vessel, Kavankov was beside Gavino, relaying thecommands or orders of Gavino to the crewmembers-officers of the vessel concerned. He was thus fullyaware of the docking maneuvers and procedure Gavino undertook to dock the vessel. Irrefragably,Kavankov was fully aware of the bulk and size of the vessel and its cargo as well as the weight of thevessel. Kavankov categorically admitted that, when the anchor and two (2) shackles were dropped to thesea floor, the claws of the anchor did not hitch on to any hard object in the seabed. The momentum of thevessel was not arrested. The use of the two (2) tugboats was insufficient. The momentum of the vessel,although a little bit arrested, continued (sic ) the vessel going straightforward with its bow towards the port

(Exhibit "A-1 ). There was thus a need for the vessel to move "full-astern" and to drop the other anchor with another shackle or two (2), for the vessel to avoid hitting the pier. Kavankov refused to act even asGavino failed to act. Even as Gavino gave mere "half-astern" order, Kavankov supinely stood by. Thevessel was already about twenty (20) meters away from the pier when Gavino gave the "full-astern" orderEven then, Kavankov did nothing to prevent the vessel from hitting the pier simply because he relied onthe competence and plan of Gavino. While the "full-astern'' maneuver momentarily arrested themomentum of the vessel, it was, by then, too late. All along, Kavankov stood supinely beside Gavino,doing nothing but relay the commands of Gavino. Inscrutably, then, Kavankov was negligent.

xxx xxx xxx

The stark incompetence of Kavankov is competent evidence to prove the unseaworthiness of the vessel.It has been held that the incompetence of the navigator, the master of the vessel or its crew makes the



vessel unseaworthy (Tug Ocean Prince versus United States of America, 584 F. 2nd, page 1151). Hencethe Appellant FESC is likewise liable for the damage sustained by the Appellee.

77

We find strong and well-reasoned support in time-tested American maritime jurisprudence, on which much of our laws and jurisprudence on the matter are based, for the conclusions of the Court of Appeals adjudging both Capt. Gavino and Capt.Kabankov negligent.

As early as 1869, the U.S. Supreme Court declared, through Mr. Justice Swayne, in The Steamship China vs.Walsh ,

78that it is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of

danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace thepilot that he has to remove any subordinate officer of the vessel, at his discretion.

In 1895, the U.S. Supreme Court, this time through Mr. Justice Brown, emphatically ruled that:

Nor are rye satisfied with the conduct of the master in leaving the pilot in sole charge of the vessel . Whilethe pilot doubtless supersedes the master for the time being in the command and navigation of the ship,and his orders must be obeyed in all matters connected with her navigation, the master is not whollyabsolved from his duties while the pilot is on board, and may advise with him, and even displace him incase he is intoxicated or manifestly incompetent. He is still in command of the vessel, except so far as hernavigation is concerned, and bound to see that there is a sufficient watch on deck, and that the men areattentive to their duties.

. . . (N)orwithstanding the pilot has charge, it is the duty of the master to prevent accident, and not to abandon the vessel entirely to the pilot ; but that there are certain duties he has to discharge(notwithstanding there is a pilot on board) for the benefit of the owners. . . . that in well conductedships the master does not regard the presence of a duly licensed pilot in compulsory pilot waters as freeing him from every, obligation to attend to the safety of the vessel ; but that, while the master sees thathis officers and crew duly attend to the pilot's orders, he himself is bound to keep a vigilant eye on the navigation of the vessel, and, when exceptional circumstances exist, not only to urge upon the pilot to useevery precaution, but to insist upon such being taken .

79(Italics for emphasis.)

In Jure vs. United Fruit Co .,80

which, like the present petitions, involved compulsory pilotage, with a similar scenariowhere at and prior to the time of injury, the vessel was in the charge of a pilot with the master on the bridge of the vesselbeside said pilot, the court therein ruled:

The authority of the master of a vessel is not in complete abeyance while a pilot, who is required by law tobe accepted, is in discharge of his functions. . . . It is the duty of the master to interfere in cases of thepilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all casesof great necessity. The master has the same power to displace the pilot that he has to remove anysubordinate officer of the vessel. He may exercise it, or not, according to his discretion. There wasevidence to support findings that piaintiff's injury was due to the negligent operation of the Atenas, andthat the master of that vessel was negligent in failing to take action to avoid endangering a vessel situatedas the City of Canton was and persons or property thereon.

A phase of the evidence furnished support for the inferences . . . that he negligently failed to suggest tothe pilot the danger which was disclosed, and means of avoiding such danger; and that the master'snegligence in failing to give timelt admonition to the pilot proximately contributed to the injury complainedof. We are of opinion that the evidence mentioned tended to prove conduct of the pilot, known to the

master, giving rise to a case of danger or great necessity, calling for the intervention of the master. Amaster of a vessel is not without fault in acquiescing in canduct of a pilot which involves apparent and avoidable danger , whether such danger is to the vessel upon which the pilot is, or to another vessel, or persons or property thereon or on shore. (Emphasis ours.)

Still in another case involving a nearly identical setting, the captain of a vessel alongside the compulsory pilot wasdeemed to be negligent, since, in the words of the court, "he was in a position to exercise his superior authority if he haddeemed the speed excessive on the occasion in question. I think it was clearly negligent of him not to have recognized thedanger to any craft moored at Gravell Dock and that he should have directed the pilot to reduce his speed as required bythe local governmental regulations. His failure amounted to negligence and renders the respondent liable ."

81(Emphasis

supplied.) Though a compulsory pilot might be regarded as an independent contractor, he is at all times subject to theultimate control of the ship's master.

82



In sum, where a compulsory pilot is in charge of a ship, the master being required to permit him to navigate it, if themaster observes that the pilot is incompetent or physically incapable, then it is the dury of the master to refuse to permitthe pilot to act. But if no such reasons are present, then the master is justified in relying upon the pilot, but not blindly .Under the circumstances of this case, if a situation arose where the master, exercising that reasonable vigilance which themaster of a ship should exercise, observed, or should have observed, that the pilot was so navigating the vessel that shewas going, or was likely to go, into danger, and there was in the exercise of reasonable care and vigilance an opportunityfor the master to intervene so as to save the ship from danger, the master should have acted accordingly.

83 The master

of a vessel must exercise a degree of vigilance commensurate with the circumstances .84

Inasmuch as the matter of negligence is a question of fact,

85

we defer to the findings of the trial court, especially as this isaffirmed by the Court of Appeals.86

But even beyond that, our own evaluation is that Capt. Kabankov's shared liability isdue mainly to the fact that he failed to act when the perilous situation should have spurred him into quick and decisiveaction as master of the ship. In the face of imminent or actual danger, he did not have to wait for the happenstance tooccur before countermanding or overruling the pilot. By his own admission, Capt. Kabankov concurred with Capt.Gavino's decisions, and this is precisely the reason why he decided not to countermand any of the latter's orders.Inasmuch as both lower courts found Capt. Gavino negligent, by expressing full agreement therewith Capt. Kabankov was just as negligent as Capt. Gavino.

In general, a pilot is personally liable for damages caused by his own negligence or default to the owners of the vessel,and to third parties for damages sustained in a collision. Such negligence of the pilot in the performance of dutyconstitutes a maritime tort.

87At common law, a shipowner is not liable for injuries inflicted exclusively by the negligence of

a pilot accepted by a vessel compulsorily.88

The exemption from liability for such negligence shall apply if the pilot isactually in charge and solely in fault. Since, a pilot is responsible only for his own personal negligence, he cannot be heldaccountable for damages proximately caused by the default of others, 89 or, if there be anything which concurred with thefault of the pilot in producing the accident, the vessel master and owners are liable.

Since the colliding vessel is prima facie responsible, the burden of proof is upon the party claiming benefit of theexemption from liability. It must be shown affirmatively that the pilot was at fault, and that there was no fault on the part of the officers or crew, which might have been conducive to the damage. The fact that the law compelled the master to takethe pilot does not exonerate the vessel from liability. The parties who suffer are entitled to have their remedy against thevessel that occasioned the damage, and are not under necessity to look to the pilot from whom redress is not always hadfor compensation. The owners of the vessel are responsible to the injured party for the acts of the pilot, and they must beleft to recover the amount as well as they can against him. It cannot be maintained that the circumstance of having a piloton board, and acting in conformity to his directions operate as a discharge of responsibility of the owners.

90Except

insofar as their liability is limited or exempted by statute, the vessel or her owner are liable for all damages caused by thenegligence or other wrongs of the owners or those in charge of the vessel. Where the pilot of a vessel is not a compulsoryone in the sense that the owner or master of the vessel are bound to accept him, but is employed voluntarily, the ownersof the vessel are, all the more, liable for his negligent act.

91

In the United States, the owners of a vessel are not personally liable for the negligent acts of a compulsory pilot, but byadmiralty law, the fault or negligence of a compulsory pilot is imputable to the vessel and it may be held liable therefor in rem . Where, however, by the provisions of the statute the pilot is compulsory only in the sense that his fee must be paid,and is not in compulsory charge of the vessel, there is no exemption from liability. Even though the pilot is compulsory, if his negligence was not the sole cause of the injury, but the negligence of the master or crew contributed thereto, the owners are liable .

92But the liability of the ship in rem does not release the pilot from the consequences of his own

negligence.93

The rationale for this rule is that the master is not entirely absolved of responsibility with respect tonavigation when a compulsory pilot is in charge.

94

By way of validation and in light of the aforecited guidepost rulings in American maritime cases, we declare that our rulings during the early years of this century in City of Manila vs. Gambe ,95

China Navigation Co., Ltd. vs.Vidal ,

96and Yap Tica & Co. vs. Anderson , et al .

97have withstood the proverbial test of time and remain good and

relevant case law to this day.

City of Manila stands for the doctrine that the pilot who was in command and complete control of a vessel, and not theowners, must be held responsible for an accident which was solely the result of the mistake of the pilot in not givingproper orders, and which did not result from the failure of the owners to equip the vessel with the most modern andimproved machinery. In China Navigation Co ., the pilot deviated from the ordinary and safe course, without heeding thewarnings of the ship captain. It was this careless deviation that caused the vessel to collide with a pinnacle rock which,though uncharted, was known to pilots and local navigators. Obviously, the captain was blameless. It was the negligenceof the pilot alone which was the proximate cause of the collision. The Court could not but then rule that —



The pilot in the case at bar having deviated from the usual and ordinary course followed by navigators inpassing through the strait in question, without a substantial reason, was guilty of negligence, and thatnegligence having been the proximate cause of the damages, he is liable for such damages as usuallyand naturally flow therefrom. . . .

. . . (T)he defendant should have known of the existence and location of the rock upon which the vesselstruck while under his control and management. . . . .

Consistent with the pronouncements in these two earlier cases, but on a slightly different tack, the Court in Yap Tico & Co

exonerated the pilot from liability for the accident where the orders of the pilot in the handling of the ship were disregardedby the officers and crew of the ship. According to the Court, a pilot is ". . . responsible for a full knowledge of the channeland the navigation only so far as he can accomplish it through the officers and crew of the ship, and I don't see chat hecan be held responsible for damage when the evidence shows, as it does in this case, that the officers and crew of theship failed to obey his orders." Nonetheless, it is possible for a compulsory pilot and the master of the vessel tobe concurrently negligent and thus share the blame for the resulting damage as joint tortfeasors,

98but only under the

circumstances obtaining in and demonstrated by the instant petitions.

It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of aninjury. It is sufficient that his negligence, concurring with one or more efficient causes other than piaintiff's, is the proximatecause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liabilitybecause he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury isan efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not

attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not haveresulted from his negligence alone, without the negligence or wrongful acts of the other concurrent rortfeasor.99

Whereseveral causes producing an injury are concurrent and each is an efficient cause without which the injury would not havehappened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of theresponsible persons although under the circumstances of the case, it may appear that one of them was more culpable,and that the duty owed by them to the injured person was not the same. No actor's negligence ceases to be a proximatecause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entireresult and is liable as though his acts were the sole cause of the injury.

100

There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the totaldamage. Where the concurrent or successive negligent acts or omissions of two or more persons, although actingindependently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible todetermine in what proportion each contributed to the injury and either of them is responsible for the whole injury. Where

their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarilyliable for the resulting damage under Article 2194101

of the Civil Code.102

As for the amount of damages awarded by the trial court, we find the same to be reasonable. The testimony of Mr.Pascual Barral, witness for PPA, on cross and redirect examination, appears to be grounded on practical considerations:

Q So that the cost of the two additional piles as well as the (two) square meters is alreadyincluded in this P1,300,999.77.

A Yes sir, everything. It is (the) final cost already.

Q For the eight piles.

A Including the reduced areas and other reductions.

Q (A)nd the two square meters.

A Yes sir.

Q In other words, this P1,300,999.77 does not represent only for the six piles that wasdamaged as well as the corresponding two piles.



A The area was corresponding, was increased by almost two in the actual payment. Thatwas why the contract was decreased, the real amount was P1,124,627.40 and the finalone is P1,300,999.77.

Q Yes, but that P1,300,999.77 included the additional two new posts.

A It was increased.

Q Why was it increased?

A The original was 48 and the actual was 46.

Q Now, the damage was somewhere in 1980. It took place in 1980 and you started therepair and reconstruction in 1982, that took almost two years?

A Yes sir.

Q May it not happen that by natural factors, the existing damage in 1980 was aggravatedfor the 2 year period that the damage portion was not repaired?

A I don't think so because that area was at once marked and no vehicles can park, it was

closed.

Q Even if or even natural elements cannot affect the damage?

A Cannot, sir.

xxx xxx xxx

Q You said in the cross-examination that there were six piles damaged by the accident,but that in the reconstruction of the pier, PPA drove and constructed 8 piles. Will youexplain to us why there was change in the number of piles from the original number?

A In piers where the piles are withdrawn or pulled out, you cannot re-drive or drive pilesat the same point. You have to redesign the driving of the piles. We cannot drive the pilesat the same point where the piles are broken or damaged or pulled out. We have toredesign, and you will note that in the reconstruction, we redesigned such that itnecessitated 8 plies.

Q Why not, why could you not drive the same number of piles and on the same spot?

A The original location was already disturbed. We cannot get required bearing capacity.The area is already disturbed.

Q Nonetheless, if you drove the original number of piles, six, on different places, wouldnot that have sustained the same load?

A It will not suffice, sir.103

We quote the findings of the lower court with approval.

With regards to the amount of damages that is to be awarded to plaintiff, the Court finds that the amountof P1,053,300.00 is justified. Firstly, the doctrine of res ipsa loquitur best expounded upon in the landmarkcase of Republic vs. Luzon Stevedoring Corp . (21 SCRA 279) establishes the presumption that in theordinary course of events the ramming of the dock would not have occurred if proper care was used.



Secondly, the various estimates and plans justify the cost of the port construction price. The newstructure constructed not only replaced the damaged one but was built of stronger materials to forestallthe possibility of any similar accidents in the future.

The Court inevitably finds that the plaintiff is entitled to an award of P1,053,300.00 which representsactual damages caused by the damage to Berth 4 of the Manila International Port. Co-defendants Far Eastern Shipping, Capt. Senen Gavino and Manila Pilots Association are solidariiy liable to pay thisamount to plaintiff.

104

The Solicitor General rightly commented that the adjudicated amount of damages represents the proportional costof repair and rehabilitation of the damaged section of the pier.

105

Except insofar as their liability is limited or exempted by statute, the vessel or her owners are liable for all damagescaused by the negligence or other wrongs of the owners or those in charge of the vessel. As a general rule, the owners or those in possession and control of a vessel and the vessel are liable for all natural and proximate damages caused topersons or property by reason of her negligent management or navigation.

106

FESC's imputation of PPA's failure to provide a safe and reliable berthing place is obtuse, not only because it appears tobe a mere afterthought, being tardily raised only in this petition, but also because there is no allegation or evidence onrecord about Berth No. 4 being unsafe and unreliable, although perhaps it is a modest pier by international standards.There was, therefore, no error on the part of the Court of Appeals in dismissing FESC's counterclaim.

II. G.R. No. 130150

This consolidated case treats on whether the Court of Appeals erred in holding MPA jointly and solidarily liable with itsmember pilot. Capt. Gavino, in the absence of employer-employee relationship and in applying Customs AdministrativeOrder No. 15-65, as basis for the adjudged solidary liability of MPA and Capt. Gavino.

The pertinent provisions in Chapter I of Customs Administrative Order No. 15-65 are:

PAR. XXVII. — In all pilotage districts where pilotage is compulsory, there shall be created andmaintained by the pilots or pilots' association, in the manner hereinafter prescribed, a reserve fund equalto P1,000.00 for each pilot thereof for the purpose of paying claims for damages to vessels or propertycaused through acts or omissions of its members while rendered in compulsory pilotage service. InManila, the reserve fund shall be P2,000.00 for each pilot.

PAR. XXVIII. — A pilots' association shall not be liable under these regulations for damage to any vessel,or other property, resulting from acts of a member of an association in the actual performance of his dutyfor a greater amount than seventy-five per centum (75%) of its prescribed reserve fund; it beingunderstood that if the association is held liable for an amount greater than the amount above-stated, theexcess shall be paid by the personal funds of the member concerned.

PAR. XXXI. — If a payment is made from the reserve fund of an association on account of damagescaused by a member thereof, and he shall have been found at fault, such member shall reimburse theassociation in the amount so paid as soon as practicable; and for this purpose, not less than twenty-fiveper centum of his dividends shall be retained each month until the full amount has been returned to thereserve fund.

PAR. XXXIV. — Nothing in these regulations shall relieve any pilots' association or members thereof,individually or collectively, from civil responsibility for damages to life or property resulting from the acts of members in the performance of their duties.

Correlatively, the relevant provisions of PPA Administrative Order No. 03-85, which timery amended this applicablemaritime regulation, state:

Art. IV

Sec. 17. Pilots' Association — The Pilots in a Pilotage District shall organize themselves into a Pilots' Association or firm, the members of which shall promulgate their own By-Laws not in conflict with the



rules and regulations promulgated by the Authority. These By-Laws shall be submitted not later than one(1) month after the organization of the Pilots' Association for approval by the General Manager of the Authority. Subsequent amendments thereto shall l ikewise be submitted for approval.

Sec. 25. Indemnity Insurance and Reserve Fund —

a) Each Pilots' Association shall collectively insure its membership at therate of P50,000.00 each member to cover in whole or in part any liabilityarising from any accident resulting in damage to vessel(s), port facilities

and other properties and/or injury to persons or death which any membermay have caused in the course of his performance of pilotage duties. . . ..

b) The Pilotage Association shall likewise set up and maintain a reservefund which shall answer for any part of the liability referred to in theimmediately preceding paragraph which is left unsatisfied by theinsurance proceeds, in the following manner:

1) Each pilot in the Association shall contribute from hisown account an amount of P4,000.00 (P6,000.00 in theManila Pilotage District) to the reserve fund. This fundshall not be considered part of the capital of the

Association nor charged as an expense thereof.

2) Seventy-five percent (75 %) of the reserve fund shallbe set aside for use in the payment of damages referredto above incurred in the actual performance of pilots'duties and the excess shall be paid from the personalfunds of the member concerned.

xxx xxx xxx

5) If payment is made from the reserve fund of an Association on account of damage caused by a member thereof who is found at fault, he shall reimburse the

Association in the amount so paid as soon aspracticable; and for this purpose, not less than twenty-five percentum (25 %) of his dividend shall be retainedeach month until the full amount has been returned tothe reserve fund. Thereafter, the pilot involved shall beentitled to his full dividend.

6) When the reimbursement has been completed asprescribed in the preceding paragraph, the tenpercentum (10%) and the interest withheld from theshares of the other pilots in accordance with paragraph(4) hereof shall be returned to them.

c) Liability of Pilots' Association — Nothing in these regulations shallrelieve any Pilots' Association or members thereof, individually or collectively, from any civil, administrative and/or criminal responsibility fordamages to life or property resulting from the individual acts of itsmembers as well as those of the Association's employees and crew inthe performance of their duties.

The Court of Appeals, while affirming the trial court's finding of solidary liability on the part of FESC, MPA and Capt.Gavino, correctly based MPA' s liability not on the concept of employer-employee relationship between Capt. Gavino anditself, but on the provisions of Customs Administrative Order No. 15-65:



The Appellant MPA avers that, contrary to the findings and disquisitions of the Court a quo , the AppellantGavino was not and has never been an employee of the MPA but was only a member thereof. TheCourt a quo , it is noteworthy, did not state the factual basis on which it anchored its finding that Gavinowas the employee of MPA. We are in accord with MPA's pose. Case law teaches Us that, for anemployer-employee relationship to exist, the confluence of the following elements must be established:(1) selection and engagement of employees; (2) the payment of wages; (3) the power of dismissal; (4) theemployer's power to control the employees with respect to the means and method by which the work is tobe performed (Ruga versus NLRC, 181 SCRA 266).

xxx xxx xxx

The liability of MPA for damages is not anchored on Article 2180 of the New Civil Code as erroneouslyfound and declared by the Court a quo but under the provisions of Customs Administrative Order No. 15-65, supra , in tandem with the by-laws of the MPA.

107

There being no employer-employee relationship, clearly Article 2180108

of the Civil Code is inapplicable since there is novicarious liability of an employer to speak of. It is so stated in American law, as follows:

The well established rule is that pilot associations are immune to vicarious liability for the tort of their members. They are not the employer of their members and exercise no control over them once they takethe helm of the vessel. They are also not partnerships because the members do not function as agentsfor the association or for each other. Pilots' associations are also not liable for negligently assuring the

competence of their members because as professional associations they made no guarantee of theprofessional conduct of their members to the general public.

109

Where under local statutes and regulations, pilot associations lack the necessary legal incidents of responsibility, theyhave been held not liable for damages caused by the default of a member pilot.

110Whether or not the members of a

pilots' association are in legal effect a copartnership depends wholly on the powers and duties of the members in relationto one another under the provisions of the governing statutes and regulations. The relation of a pilot to his association isnot that of a servant to the master, but of an associate assisting and participating in a common purpose. Ultimately, therights and liabilities between a pilots' association and an individual member depend largely upon the constitution, articlesor by-laws of the association, subject to appropriate government regulations.

111

No reliance can be placed by MPA on the cited American rulings as to immunity from liability of a pilots' association in ljghof existing positive regulation under Philippine law. The Court of Appeals properly applied the clear and unequivocal

provisions of Customs Administrative Order No. 15-65. In doing so, it was just being consistent with its finding of the non-existence of employer-employee relationship between MPA and Capt. Gavino which precludes the application of Article2180 of the Civil Code.

True. Customs Administrative Order No. 15-65 does not categorically characterize or label MPA's liability as solidary innature. Nevertheless, a careful reading and proper analysis of the correlated provisions lead to the conclusion that MPA issolidarily liable for the negligence of its member pilots, without prejudice to subsequent reimbursement from the pilot atfault.

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

. . . Customs Administrative Order No. 15-65 may be a mere rule and regulation issued by anadministrative agency pursuant to a delegated authority to fix "the details" in the execution or enforcemenof a policy set out in the law itself. Nonetheless, said administrative order, which adds to the procedural or enforcing provisions of substantive law, is legally binding and receives the same statutory force upongoing into effect. In that sense, it has equal, not lower, statutory force and effect as a regular statutepassed by the legislature.

112

MPA's prayer for modification of the appellate court's decision under review by exculpating petitioner MPA "from liabilitybeyond seventy-five percent (75 %) of Reserve Fund" is unnecessary because the liability of MPA under Par. XXVIII of Customs Administrative Order No. 15-65 is in fact limited to seventy-five percent (75 %) of its prescribed reserve fund,



any amount of liability beyond that being for the personal account of the erring pilot and subject to reimbursement in caseof a finding of fault by the member concerned. This is clarified by the Solicitor General:

Moreover, contrary to petitioner's pretensions, the provisions of Customs Administrative Order No. 15-65do not limit the liability of petitioner as a pilots' association to an absurdly small amount of seventy-five percentum (75 %) of the member pilots' contribution of P2,000.00 to the reserve fund. The law speaks of theentire reserve fund required to be maintained by the pilots' association to answer (for) whatever liabilityarising from the tortious act of its members. And even if the association is held liable for an amountgreater than the reserve fund, the association may not resist the liability by claiming to be liable only up to

seventy-five per centum (75 %) of the reserve fund because in such instance it has the right to bereimbursed by the offending member pilot for the excess.113

WHEREFORE, in view of all of the foregoing, the consolidated petitions for review are DENIED and the assailed decisionof the Court of Appeals is AFFIRMED in toto .

Counsel for FESC, the law firm of Del Rosario and Del Rosario, specifically its associate, Atty. Herbert A. Tria, isREPRIMANDED and WARNED that a repetition of the same or similar acts of heedless disregard of its undertakingsunder the Rules shall be dealt with more severely.

The original members of the legal team of the Office of the Solicitor General assigned to this case, namely, AssistantSolicitor General Roman G. Del Rosario and Solicitor Luis F. Simon, are ADMONISHED and WARNED that a repetition ofthe same or similar acts of unduly delaying proceedings due to delayed filing of required pleadings shall also be dealt with

more stringently.

The Solicitor Genral is DIRECTED to look into the circumstances of this case and to adopt provident measures to avoid arepetition of this incident and which would ensure prompt compliance with orders of this Court regarding the timely filing ofrequisite pleadings, in the interest of just, speedy and orderly administration of justice.

Let copies of this decision be spread upon the personal records of the lawyers named herein in the Office of the Bar Confidant.

SO ORDERED.

G.R. No. L-21512 August 31, 1966

PROSPERO SABIDO and ASER LAGUNDA, petitioners,vs.CARLOS CUSTODIO, BELEN MAKABUHAY CUSTODIO and THE HONORABLE COURT OF APPEALS, respondents.

Sabido, Sabido and Associates for petitioners.Ernesto S. Tengco for respondents.

CONCEPCION, C.J.:

Prospero Sabido and Aser Lagunda seek the review by certiorari of a decision of the Court of Appeals, affirming that of the Court of First Instance of Laguna, sentencing the Laguna-Tayabas Bus Co., Nicasio Mudales, and herein petitioners.Prospero Sabido and Aser Lagunda, to jointly and severally indemnify Belen Makabuhay Custodio and her son, Agripino

Custodio Jr., in the sum of P6,000 and to pay the costs of the suit.

The facts are set forth in the decision of the Court of Appeals from which we quote:

Upon a careful study and judicious examining of the evidence on record, we are inclined to concur in the findingsmade by the trial court. Here is how the Court a quo analyzed the facts of this case:

"In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one driven by Nicasio Mudalesand belonging to Laguna-Tayabas Bus Company, and the other driven by Aser Lagunda and owned byProspero Sabido, going in opposite directions met each other in a road curve. Agripino Custodia apassenger of LTB bus, who was hanging on the left side as truck was full of passengers was sideswipedby the track driven by Aser Lagunda. As a result, Agripino Custodio was injured and died (Exhibit A).



"It appears clear from the evidence that Agripino Custodio was hanging on the left side of the LTB bus.Otherwise, were he sitting inside the truck, he could not have been struck by the six by six truck driven by Aser Lagunda. This fact alone, of allowing Agripino Custodio to hang on the side of the truck, makes thedefendant Laguna Tayabas Bus Company liable for damages. For certainly its employees, who are thedriver and conductor were negligent. They should not have allowed Agripino Custodio to ride their truck inthat manner.

"To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on Nicasio Mudales. Fromthe testimony, however, of Belen Makabuhay, Agripino Custodio's widow, we can deduce that Aser

Lagunda was equally negligent as Nicasio Mudales. Belen testified that the 6 x 6 truck was running fastwhen it met the LTB Bus. And Aser Lagunda had time and opportunity to avoid the mishap if he had beensufficiently careful and cautious because the two trucks never collided with each other. By simplyswerving to the right side of the road, the 6 x 6 truck could have avoided hitting Agripino Custodio. It isincredible that the LTB was running on the middle of the road when passing a curve. He knows it isdangerous to do so. We are rather of the belief that both trucks did not keep close to the right side of theroad so they sideswiped each other and thus Agripino Custodio was injured and died. In other words,both drivers must have drive in their trucks not in the proper lane and are, therefore, both reckless andnegligent.

"We might state by way of additional observations that the sideswiping of the deceased and his two fellowpassengers took place on broad daylight at about 9:30 in the morning of June 9, 1955 when the LTB bus with fullload to passengers was negotiating a sharp curve of a bumpy and sliding downward a slope, whereas the six bysix truck was climbing up with no cargoes or passengers on board but for three helpers, owner Sabido and driver Lagunda (tsn. 308-309, Mendoza). Under the above-stated condition, there exists strong persuasion to acceptwhat Belen Makabuhay and Sofia Mesina, LTB passengers, had testified to the effect that the 6 x 6 cargo truckwas running at a fast rate of speed (tsn. 15, 74, 175 Mendoza). From the lips of no less than driver Lagundahimself come the testimonial admission that the presence of three hanging passengers located at the left side of the bus was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet despite theexistence of a shallow canal on the right side of the road which he could pass over with ease, Lagunda did notcare to exercise prudence to avert the accident simply because to use his own language the canal "is not apassage of trucks."

Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals concluded that the Laguna-Tayabas Bus Co. — hereinafter referred to as the carrier — and its driver Nicasio Mudales (none of whom has appealed),had violated the contract of carriage with Agripino Custodio, whereas petitioners Sabido and Lagunda were guilty of a quasi delict , by reason of which all of them were held solidarity liable in the manner above indicated.

Petitioners now maintain: (1) that the death of Agripino Custodio was due exclusively to the negligence of the carrier andits driver; (2) that petitioners were not guilty of negligence in connection with the matter under consideration; (3) thatpetitioners cannot be held solidarily liable with the carrier and its driver; and (4) that the complaint against petitionersherein should be dismissed.

With respect to the first two (2) points, which are interrelated, it is urged that the carrier and its driver were clearly guilty of negligence for having allowed Agripino Custodio to ride on the running board of the bus, in violation of Section 42 of ActNo. 3992, and that this negligence was the proximate cause of Agripino's death. It should be noted, however, that thelower court had, likewise, found the petitioners guilty of contributory negligence, which was as much a proximate cause of the accident as the carrier's negligence, for petitioners' truck was running at a considerable speed, despite the fact that itwas negotiating a sharp curve, and, instead of being close to its right side of the road, said truck was driven on its middle

portion and so near the passenger bus coming from the opposite direction as to sideswipe a passenger riding on itsrunning board.1äwphï1.ñët

The views of the Court of Appeals on the speed of the truck and its location at the time of the accident are in the nature of findings of fact, which we cannot disturb in a petition for review by certiorari , such as the one at bar. At any rate, thecorrectness of said findings is borne out by the very testimony of petitioner Lagunda to the effect that he saw thepassengers riding on the running board of the bus while the same was still five (5) or seven (7) meters away from thetruck driven by him. Indeed, the distance between the two (2) vehicles was such that he could have avoided sideswipingsaid passengers if his truck were not running at a great speed.

Although the negligence of the carrier and its driver is independent, in its execution, of the negligence of the truck driver and its owner, both acts of negligence are the proximate cause of the death of Agripino Custodio. In fact, the negligenceof the first two (2) would not have produced this result without the negligence of petitioners' herein. What is more,



petitioners' negligence was the last , in point of time, for Custodio was on the running board of the carrier's bussometime before petitioners' truck came from the opposite direction, so that, in this sense, petitioners' truck had the lastclear chance.

Petitioners contend that they should not be held solidarily liable with the carrier and its driver, because the latter's liabilityarises from a breach of contract, whereas that of the former springs from a quasi delict . The rule is, however, that

According to the great weight of authority, where the concurrent or successive negligent acts or omission of twoor more persons, although acting independently of each other, are, in combination, the direct and proximate

cause of a single injury to a third person, and it is impossible to determine in what proportion each contributed tothe injury, either is responsible for the whole injury, even though his act alone might not have caused the entireinjury, or the same damage might have resulted from the acts of the other tort-feasor ... . (38 Am. Jur. 946, 947.)

Wherefore, the decision appealed from is hereby affirmed, with costs against the petitioners herein. It is so ordered.

Reyes, J.B.L., Barrera, Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. L-10126 October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDOBATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants,vs.MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.Fortunato Jose for defendant and appellant.

MONTEMAYOR, J .:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendantMariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City,driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver andconductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated tothe right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya,

apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated justbehind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdictionof Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the rightside of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others hadto be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayanand the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers,after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help fromBataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not thepassengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricateand rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in theneighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wickon one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almostimmediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. Itwould appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of thechassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lightedtorch brought by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified thatof Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages andattorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to theplaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, butthe latter endorsed the appeal to us because of the value involved in the claim in the complaint.



Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their goods. For purposes of reference, we are reproducing the pertinent codal provisions:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound toobserve extraordinary diligence in the vigilance over the goods and for the safety of the passengers transportedby them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745,Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further set forth in articles

1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight canprovide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles1733 and 1755

ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willfulacts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a goodfather of a family in the selection and supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of thediligence of a good father of a family could have prevented or stopped the act or omission.

We agree with the trial court that the case involves a breach of contract of transportation for hire, the MedinaTransportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial courtthat there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to showthat at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the factthat according to the testimony of the witnesses, including that of the defense, from the point where one of the front tiresburst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150 meters. The chauffeur,after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the busmust have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turnedturtle.

There is no question that under the circumstances, the defendant carrier is liable. The only question is to what degree.The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, butrather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the timethe fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damageswere awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:

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

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physicalinjuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contendthat the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case under the



circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus,this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasolinefrom the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the callfor help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and thatbecause it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did froma rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers shouldinnocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the comingof the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed tothe negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position inwhich the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in andaround the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directedeven from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warnthe rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier comeunder the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

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

bus, is adequate and will not be disturbed.

There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengerswho, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was visited by the defendantMariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling saidinspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, hehad been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goesto prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of hispassengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably,despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason tobelieve that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physicalinjuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motionof the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose

testimony he was banking to support the complaint, either failed or appear or were reluctant to testify. But the record of the case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court tothe effect of the said driver was negligent. In the public interest the prosecution of said erring driver should be pursued,this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded by the trial court are increased from ONETHOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHTHUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's fees, respectively, the decision appealed isfrom hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia, and Felix,JJ., concur.

G.R. Nos. 66102-04 August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner,vs.THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO PASCUA, ET AL., respondents.

Santiago & Santiago for petitioner.

Federico R. Vinluan for private respondents.



MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of Appeals) datedJuly 29, 1983 in AC-G.R. Nos. CV-65885, CV-65886 and CV-65887 which reversed the decision of the Court of FirstInstance (now Regional Trial Court) of Pangasinan dated December 27, 1978; and its resolution dated November 28,1983 denying the motion for reconsideration.

It is an established principle that the factual findings of the Court of Appeals are final and may not be reviewed by thisCourt on appeal. However, this principle is subject to certain exceptions. One of these is when the findings of theappellate court are contrary to those of the trial court (see Sabinosa v. The Honorable Court of Appeals, et al., G.R. No. L-47981, July 24, 1989) in which case, a re-examination of the facts and evidence may be undertaken. This is Our tasknow.

The antecedent facts are as follows:

About 11:00 o'clock in the morning on December 24, 1966, Catalina Pascua, Caridad Pascua, Adelaida Estomo, ErlindaMeriales, Mercedes Lorenzo, Alejandro Morales and Zenaida Parejas boarded the jeepney owned by spouses IsidroMangune and Guillerma Carreon and driven by Tranquilino Manalo at Dau, Mabalacat, Pampanga bound for Carmen,Rosales, Pangasinan to spend Christmas at their respective homes. Although they usually ride in buses, they had to ridein a jeepney that day because the buses were full. Their contract with Manalo was for them to pay P24.00 for the trip. The

private respondents' testimonial evidence on this contractual relationship was not controverted by Mangune, Carreon andManalo, nor by Filriters Guaranty Assurance Corporation, Inc., the insurer of the jeepney, with contrary evidence.Purportedly riding on the front seat with Manalo was Mercedes Lorenzo. On the left rear passenger seat were CaridadPascua, Alejandro Morales and Zenaida Parejas. On the right rear passenger seat were Catalina Pascua, AdelaidaEstomo, and Erlinda Meriales. After a brief stopover at Moncada, Tarlac for refreshment, the jeepney proceeded towardsCarmen, Rosales, Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of the jeepney was detached, so it was runningin an unbalanced position. Manalo stepped on the brake, as a result of which, the jeepney which was then running on theeastern lane (its right of way) made a U-turn, invading and eventually stopping on the western lane of the road in such amanner that the jeepney's front faced the south (from where it came) and its rear faced the north (towards where it wasgoing). The jeepney practically occupied and blocked the greater portion of the western lane, which is the right of way of vehicles coming from the north, among which was Bus No. 753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit)

driven by Tomas delos Reyes. Almost at the time when the jeepney made a sudden U-turn and encroached on thewestern lane of the highway as claimed by Rabbit and delos Reyes, or after stopping for a couple of minutes as claimedby Mangune, Carreon and Manalo, the bus bumped from behind the right rear portion of the jeepney. As a result of thecollision, three passengers of the jeepney (Catalina Pascua, Erlinda Meriales and Adelaida Estomo) died while the other jeepney passengers sustained physical injuries. What could have been a festive Christmas turned out to be tragic.

The causes of the death of the three jeepney passengers were as follows (p. 101, Record on Appeal):

The deceased Catalina Pascua suffered the following injuries, to wit: fracture of the left parietal andtemporal regions of the skull; fracture of the left mandible; fracture of the right humenous; compoundfracture of the left radious and ullma middle third and lower third; fracture of the upper third of the righttibia and fillnea; avulsion of the head, left internal; and multiple abrasions. The cause of her death wasshock, secondary to fracture and multiple hemorrhage. The fractures were produced as a result of the

hitting of the victim by a strong force. The abrasions could be produced when a person falls from amoving vehicles (sic ) and rubs parts of her body against a cement road pavement. . . .

Erlinda Mariles (sic ) sustained external lesions such as contusion on the left parietal region of the skull;hematoma on the right upper lid; and abrasions (sic ) on the left knee. Her internal lesions were:hematoma on the left thorax; multiple lacerations of the left lower lobe of the lungs; contusions on the leftlower lobe of the lungs; and simple fractures of the 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th ribs, left. Theforcible impact of the jeep caused the above injuries which resulted in her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy of Dr. Panlasiqui was due toshock due to internal hemorrhage, ruptured spleen and trauma. . . .



Caridad Pascua suffered physical injuries as follows (p. 101, Record on Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on the forehead, multiple abrasionson the forearm, right upper arm, back and right leg. . . .

The police investigators of Tacpal and policemen of San Manuel, Tarlac, Tarlac, upon arrival at the scene of the mishap,prepared a sketch (common exhibit "K" for private respondents "19" for Rabbit) showing the relative positions of the twovehicles as well as the alleged point of impact (p. 100, Record on Appeal):

. . . The point of collision was a cement pave-portion of the Highway, about six (6) meters wide, withnarrow shoulders with grasses beyond which are canals on both sides. The road was straight and points200 meters north and south of the point of collision are visible and unobstructed. Purportedly, the point of impact or collision (Exh. "K-4", Pascua on the sketch Exh. "K"-Pascua) was on the western lane of thehighway about 3 feet (or one yard) from the center line as shown by the bedris ( sic ), dirt and soil(obviously from the undercarriage of both vehicles) as well as paint, marron (sic ) from the Rabbit bus andgreenish from the jeepney. The point of impact encircled and marked with the letter "X" in Exh. "K"-4Pascua, had a diameter of two meters, the center of which was about two meters from the western edgeof cement pavement of the roadway. Pictures taken by witness Bisquera in the course of the investigationshowed the relative positions of the point of impact and center line (Exh. "P"-Pascua) the back of theRabbit bus (Exh. "P"-1-Pascua"), the lifeless body of Catalina Pascua (Exh. "P-2 Pascua"), and thedamaged front part of the Rabbit bus (Exh. "P-3 Pascua"). No skid marks of the Rabbit bus was found inthe vicinity of the collision, before or after the point of impact. On the other hand, there was a skid mark

about 45 meters long purportedly of the jeepney from the eastern shoulder of the road south of, andextending up to the point of impact.

At the time and in the vicinity of the accident, there were no vehicles following the jeepney, neither were there oncomingvehicles except the bus. The weather condition of that day was fair.

After conducting the investigation, the police filed with the Municipal Court of San Manuel, Tarlac, a criminal complaintagainst the two drivers for Multiple Homicide. At the preliminary investigation, a probable cause was found with respect tothe case of Manalo, thus, his case was elevated to the Court of First Instance. However, finding no sufficiency of evidenceas regards the case of delos Reyes, the Court dismissed it. Manalo was convicted and sentenced to suffer imprisonment.Not having appealed, he served his sentence.

Complaints for recovery of damages were then filed before the Court of First Instance of Pangasinan. In Civil Case No.

1136, spouses Casiano Pascua and Juana Valdez sued as heirs of Catalina Pascua while Caridad Pascua sued in her behalf. In Civil Case No. 1139, spouses Manuel Millares and Fidencia Arcica sued as heirs of Erlinda Meriales. In CivilCase No. 1140, spouses Mariano Estomo and Dionisia Sarmiento also sued as heirs of Adelaida Estomo.

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos Reyes were all impleaded as defendants.Plaintiffs anchored their suits against spouses Mangune and Carreon and Manalo on their contractual liability. As againstRabbit and delos Reyes, plaintiffs based their suits on their culpability for a quasi-delict. Filriters Guaranty AssuranceCorporation, Inc. was also impleaded as additional defendant in Civil Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to collect the aggregate amount of P70,060.00in damages, itemized as follows: P500.00 for burial expenses; P12,000.00 for loss of wages for 24 years; P10,000.00 for exemplary damages; P10,000.00 for moral damages; and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad Pascua claimed P550.00 for medical expenses; P240.00 for loss of wages for two months; P2,000.00 for

disfigurement of her face; P3,000.00 for physical pain and suffering; P2,500.00 as exemplary damages and P2,000.00 for attorney's fees and expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses; P6,000.00 for the death of Erlinda, P63,000.00for loss of income; P10,000.00 for moral damages and P3,000.00 for attorney's fees or total of P80,000.00.

In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses; P6,000.00 for the death of Adelaide, P56,160.00for loss of her income or earning capacity; P10,000.00 for moral damages; and P3,000.00 for attorney's fees.

Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees and expenses of litigation. On the other hand,spouses Mangune and Carreon filed a cross-claim in the amount of P6,168.00 for the repair of the jeepney and P3,000.00for its non-use during the period of repairs.



On December 27, 1978, the trial court rendered its decision finding Manalo negligent, the dispositive portion of whichreads (pp. 113-114, Record on Appeal):

PREMISES CONSIDERED, this Court is of the opinion and so holds:

1) That defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo thru their negligence,breached contract of carriage with their passengers the plaintiffs' and/or their heirs, and this Court renders judgment ordering said defendants, jointly and severally, to pay the plaintiffs —

a) In Civil Case No. 1136, for the death of Catalina Pascua, to pay her heirs the amounts of P12,000.00for indemnity for loss of her life; P41,760.00 for loss of earnings; P324.40 for actual expenses andP2,000.00 for moral damages;

b) In the same Civil Case No.1136 for the injuries of Caridad Pascua, to pay her the amounts of P240.00for loss of wages, P328.20 for actual expenses and P500.00 for moral damages;

c) In Civil Case No.1139 for the death of Erlinda Meriales, to pay her heirs (the plaintiffs) the amount of P12,000.00 — for indemnity for loss of her life; P622.00 for actual expenses, P60,480.00 for loss of wages or income and P2,000.00 for moral damages;

d) In Civil Case No. 1140, for the death of Erlinda (also called Florida or Adelaida Estomo), to pay her heirs (the plaintiff the amount of P12,000.00 for indemnity for the loss of her life; P580.00 for actualexpenses; P53,160.00 for loss of wages or income and P2,000.00 for moral damages.

2) The defendant Filriters Guaranty Insurance Co., having contracted to ensure and answer for theobligations of defendants Mangune and Carreon for damages due their passengers, this Court renders judgment against the said defendants Filriters Guaranty Insurance Co., jointly and severally with saiddefendants (Mangune and Carreon) to pay the plaintiffs the amount herein above adjudicated in their favor in Civil Case No. 1136 only. All the amounts awarded said plaintiff, as set forth in paragraph one (1)hereinabove;

3) On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the defendant, Isidro Mangune, GuillermaCarreon and Tranquilino Manalo, to pay jointly and severally, cross-claimant Phil. Rabbit Bus Lines, Inc.,the amounts of P216.27 as actual damages to its Bus No. 753 and P2,173.60 for loss of its earning.

All of the above amount, shall bear legal interest from the filing of the complaints.

Costs are adjudged against defendants Mangune, Carreon and Manalo and Filriters Guaranty.

SO ORDERED

On appeal, the Intermediate Appellate Court reversed the above-quoted decision by finding delos Reyes negligent, thedispositive portion of which reads (pp. 55-57, Rollo ):

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby REVERSED as to itemNo. 3 of the decision which reads:

3) On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the defendants Isidro Mangune,Guillerma Carreon and Tranquilino Manalo, to pay jointly and severally, the amounts of P216.27 as actualdamages to its Bus No. 753 and P2,173.60 for loss of its earnings.

and another judgment is hereby rendered in favor of plaintiffs-appellants Casiana Pascua, Juan Valdezand Caridad Pascua, ordering the Philippine Rabbit Bus Lines, Inc. and its driver Tomas delos Reyes topay the former jointly and severally damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded

Civil Case No. 1136 —



a) Indemnity for the loss of life — P12,000.00

b) Loss of Salaries or earning capacity — 14,000.00

c) Actual damages (burial expenses) — 800.00

d) For moral damages — 10,000.00

e) Exemplary damages — 3,000.00

f) For attorney's fees — 3,000.00

—————

Total — P38,200.00 (sic )

For the physical injuries suffered by Caridad Pascua:

Civil Case No. 1136

a) Actual damages (hospitalization expenses) — P550.00

b) Moral damages (disfigurement of the

face and physical suffering — 8,000.00

c) Exemplary damages — 2,000.00

—————

Total — P10,550.00

For the death of Erlinda Arcega Meriales. the parents and/or heirs:

Civil Case No. 1139

a) Indemnity for loss of life — P12,000.00

b) Loss of Salary or Earning Capacity — 20,000.00


d) Moral damages — 15,000.00


f) Attorney's fees — 3,000.00

—————

Total — P65,500.00

For the death of Florida Sarmiento Estomo:

Civil Case No. 1140



a) Indemnity for loss of life — P12,000.00

b) Loss of Salary or Earning capacity — 20,000.00


d) Moral damages — 3,000.00


f) Attorney's fees — 3,000.00

—————

Total — P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

The issue is who is liable for the death and physical injuries suffered by the passengers of the jeepney?

The trial court, in declaring that Manalo was negligent, considered the following (p. 106, Record on Appeal):

(1) That the unrebutted testimony of his passenger plaintiff Caridad Pascua that a long ways ( sic ) beforereaching the point of collision, the Mangune jeepney was "running fast" that his passengers cautioneddriver Manalo to slow down but did not heed the warning: that the right rear wheel was detached causingthe jeepney to run to the eastern shoulder of the road then back to the concrete pavement; that driver Manalo applied the brakes after which the jeepney made a U-turn (half-turn) in such a manner that itinverted its direction making it face South instead of north; that the jeepney stopped on the western laneof the road on the right of way of the oncoming Phil. Rabbit Bus where it was bumped by the latter;

(2) The likewise unrebutted testimony of Police Investigator Tacpal of the San Manuel (Tarlac) Policewho, upon responding to the reported collission, found the real evidence thereat indicate in his sketch(Exh. K, Pascua ), the tracks of the jeepney of defendant Mangune and Carreon running on the Easternshoulder (outside the concrete paved road) until it returned to the concrete road at a sharp angle,crossing the Eastern lane and the (imaginary) center line and encroaching fully into the western lanewhere the collision took place as evidenced by the point of impact;

(3) The observation of witness Police Corporal Cacalda also of the San Manuel Police that the path of the jeepney they found on the road and indicated in the sketch (Exh. K-Pascua) was shown by skid markswhich he described as "scratches on the road caused by the iron of the jeep, after its wheel wasremoved;"

(4) His conviction for the crime of Multiple Homicide and Multiple Serious Physical Injuries with Damageto Property thru Reckless Imprudence by the Court of First Instance of Tarlac (Exh. 24-Rabbit) upon thecriminal Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit), as a result of the collision, and hiscommitment to prison and service of his sentence (Exh. 25-Rabbit) upon the finality of the decision andhis failure to appeal therefrom; and

(5) The application of the doctrine of res-ipsa loquitar (sic ) attesting to the circumstance that the collisionoccured (sic ) on the right of way of the Phil. Rabbit Bus.

The respondent court had a contrary opinion. Applying primarily (1) the doctrine of last clear chance, (2) the presumptionthat drivers who bump the rear of another vehicle guilty and the cause of the accident unless contradicted by other evidence, and (3) the substantial factor test. concluded that delos Reyes was negligent.



The misappreciation of the facts and evidence and the misapplication of the laws by the respondent court warrant areversal of its questioned decision and resolution.

We reiterate that "[t]he principle about "the last clear" chance, would call for application in a suit between the owners anddrivers of the two colliding vehicles. It does not arise where a passenger demands responsibility from the carrier toenforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its ownerson the ground that the other driver was likewise guilty of negligence." This was Our ruling in Anuran, et al. v. Buño et al.,G.R. Nos. L-21353 and L-21354, May 20, 1966, 17 SCRA 224.

1Thus, the respondent court erred in applying said

doctrine.

On the presumption that drivers who bump the rear of another vehicle guilty and the cause of the accident, unlesscontradicted by other evidence, the respondent court said (p. 49, Rollo ):

. . . the jeepney had already executed a complete turnabout and at the time of impact was already facingthe western side of the road. Thus the jeepney assumed a new frontal position vis a vis , the bus, and thebus assumed a new role of defensive driving. The spirit behind the presumption of guilt on one whobumps the rear end of another vehicle is for the driver following a vehicle to be at all times prepared of apending accident should the driver in front suddenly come to a full stop, or change its course either through change of mind of the front driver, mechanical trouble, or to avoid an accident. The rear vehicle isgiven the responsibility of avoiding a collision with the front vehicle for it is the rear vehicle who has fullcontrol of the situation as it is in a position to observe the vehicle in front of it.

The above discussion would have been correct were it not for the undisputed fact that the U-turn made by the jeepneywas abrupt (Exhibit "K," Pascua). The jeepney, which was then traveling on the eastern shoulder, making a straight, skidmark of approximately 35 meters, crossed the eastern lane at a sharp angle, making a skid mark of approximately 15meters from the eastern shoulder to the point of impact (Exhibit "K" Pascua). Hence, delos Reyes could not haveanticipated the sudden U-turn executed by Manalo. The respondent court did not realize that the presumption wasrebutted by this piece of evidence.

With regard to the substantial factor test, it was the opinion of the respondent court that (p. 52, Rollo ):

. . . It is the rule under the substantial factor test that if the actor's conduct is a substantial factor inbringing about harm to another, the fact that the actor neither foresaw nor should have foreseen theextent of the harm or the manner in which it occurred does not prevent him from being liable(Restatement, Torts, 2d). Here, We find defendant bus running at a fast speed when the accident

occurred and did not even make the slightest effort to avoid the accident, . . . . The bus driver's conduct isthus a substantial factor in bringing about harm to the passengers of the jeepney, not only because hewas driving fast and did not even attempt to avoid the mishap but also because it was the bus which wasthe physical force which brought about the injury and death to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 54-55, Rollo ):

According to the record of the case, the bus departed from Laoag, Ilocos Norte, at 4:00 o'clock A.M. andthe accident took place at approximately around 12:30 P.M., after travelling roughly for 8 hours and 30minutes. Deduct from this the actual stopover time of two Hours (computed from the testimony of thedriver that he made three 40-minute stop-overs), We will have an actual travelling time of 6 hours and 30minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365 kms.) driving at an average of 56 km. per hour would take 6 hours and 30 minutes. Therefore, the average speed of the bus, give andtake 10 minutes, from the point of impact on the highway with excellent visibility factor would be 80 to 90kms. per hour, as this is the place where buses would make up for lost time in traversing busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at a fast speed when the accident occurredbecause the speed of 80 to 90 kilometers per hour, assuming such calculation to be correct, is yet within the speed limitallowed in highways. We cannot even fault delos Reyes for not having avoided the collision. As aforestated, the jeepneyleft a skid mark of about 45 meters, measured from the time its right rear wheel was detached up to the point of collision.Delos Reyes must have noticed the perilous condition of the jeepney from the time its right rear wheel was detached or some 90 meters away, considering that the road was straight and points 200 meters north and south of the point of collision, visible and unobstructed. Delos Reyes admitted that he was running more or less 50 kilometers per hour at the



time of the accident. Using this speed, delos Reyes covered the distance of 45 meters in 3.24 seconds. If We adopt thespeed of 80 kilometers per hour, delos Reyes would have covered that distance in only 2.025 seconds. Verily, he had littletime to react to the situation. To require delos Reyes to avoid the collision is to ask too much from him. Aside from thetime element involved, there were no options available to him. As the trial court remarked (pp. 107-108, Record on Appeal):

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes, could have taken either of twooptions: (1) to swerve to its right (western shoulder) or (2) to swerve to its left (eastern lane), and thussteer clear of the Mangune jeepney. This Court does not so believe, considering the existing exigencies

of space and time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted that the Western shoulder of the road was narrow and had tall grasses which would indicate that it was not passable. Even plaintiffsown evidence, the pictures (Exhs. P and P-2, Pascua) are mute confirmation of such fact. Indeed, it canbe noticed in the picture (Exh. P-2, Pascua) after the Rabbit bus came to a full stop, it was tilted to rightfront side, its front wheels resting most probably on a canal on a much lower elevation that of theshoulder or paved road. It too shows that all of the wheels of the Rabbit bus were clear of the roadwayexcept the outer left rear wheel. These observation appearing in said picture (Exh P-2, Pascua) clearlyshows coupled with the finding the Rabbit bus came to a full stop only five meters from the point of impact(see sketch, Exh. K-Pascua) clearly show that driver de los Reyes veered his Rabbit bus to the rightattempt to avoid hitting the Mangune's jeepney. That it was not successful in fully clearing the Mangune jeepney as its (Rabbit's) left front hit said jeepney (see picture Exh. 10-A-Rabbit) must have been due tolimitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus could also have swerved to itsleft (eastern lane) to avoid bumping the Mangune jeepney which was then on the western lane. Such aclaim is premised on the hypothesis (sic ) that the eastern lane was then empty. This claim would appear to be good copy of it were based alone on the sketch made after the collision. Nonetheless, it loses forceit one were to consider the time element involved, for moments before that, the Mangune jeepney wascrossing that very eastern lane at a sharp angle. Under such a situation then, for driver delos Reyes toswerve to the eastern lane, he would run the greater risk of running smack in the Mangune jeepney either head on or broadside.

After a minute scrutiny of the factual matters and duly proven evidence, We find that the proximate cause of the accidentwas the negligence of Manalo and spouses Mangune and Carreon. They all failed to exercise the precautions that are

needed precisely pro hac vice.

In culpa contractual , the moment a passenger dies or is injured, the carrier is presumed to have been at fault or to haveacted negligently, and this disputable presumption may only be overcome by evidence that he had observed extra-ordinary diligence as prescribed in Articles 1733, 1755 and 1756 of the New Civil Code

2or that the death or injury of the

passenger was due to a fortuitous event3

(Lasam v. Smith, Jr., 45 Phil. 657).

The negligence of Manalo was proven during the trial by the unrebutted testimonies of Caridad Pascua, PoliceInvestigator Tacpal, Police Corporal Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and MultipleSerious Injuries with Damage to Property thru Reckless Imprudence, and the application of the doctrine of res ipsa loquitursupra. The negligence of spouses Mangune and Carreon was likewise proven during the trial (p. 110, Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru their witness Natalio Navarro,

an alleged mechanic, that he periodically checks and maintains the jeepney of said defendants, the laston Dec. 23, the day before the collision, which included the tightening of the bolts. This notwithstandingthe right rear wheel of the vehicle was detached while in transit. As to the cause thereof no evidence wasoffered. Said defendant did not even attempt to explain, much less establish, it to be one caused bya caso fortuito . . . .

In any event, "[i]n an action for damages against the carrier for his failure to safely carry his passenger to hisdestination, an accident caused either by defects in the automobile or through the negligence of its driver, is nota caso fortuito which would avoid the carriers liability for damages (Son v. Cebu Autobus Company, 94 Phil. 892citing Lasam, et al. v. Smith, Jr., 45 Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).



The trial court was therefore right in finding that Manalo and spouses Mangune and Carreon were negligent. However, itsruling that spouses Mangune and Carreon are jointly and severally liable with Manalo is erroneous The driver cannot beheld jointly and severally liable with the carrier in case of breach of the contract of carriage. The rationale behind this isreadily discernible. Firstly, the contract of carriage is between the carrier and the passenger, and in the event of contractual liability, the carrier is exclusively responsible therefore to the passenger, even if such breach be due to thenegligence of his driver (see Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742).In other words, the carrier can neither shift his liability on the contract to his driver nor share it with him, for his driver'snegligence is his.

4 Secondly, if We make the driver jointly and severally liable with the carrier, that would make the

carrier's liability personal instead of merely vicarious and consequently, entitled to recover only the share whichcorresponds to the driver,

5contradictory to the explicit provision of Article 2181 of the New Civil Code.

6

We affirm the amount of damages adjudged by the trial court, except with respect to the indemnity for loss of life. Under Article 1764 in relation to Article 2206 of the New Civil Code, the amount of damages for the death of a passenger is atleast three thousand pesos (P3,000.00). The prevailing jurisprudence has increased the amount of P3,000.00 toP30,000.00 (see Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al., G.R. No. 51165, June 21,1990 citing De Lima v. Laguna Tayabas Co., G.R. Nos. L-35697-99, April 15, 1988, 160 SCRA 70).

ACCORDINGLY, the petition is hereby GRANTED. The decision of the Intermediate Appellate Court dated July 29, 1983and its resolution dated November 28, 1983 are SET ASIDE. The decision of the Court of First Instance dated December 27, 1978 is REINSTATED MODIFICATION that only Isidro Mangune, Guillerma Carreon and Filriters Guaranty AssuranceCorporation, Inc. are liable to the victims or their heirs and that the amount of indemnity for loss of life is increased to thirtythousand pesos (P30,000.00).

SO ORDERED.

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 on his wayhome — he lived in 1214-B Zamora Street, Bangkal, Makati — from a cocktails-and-dinner meeting with his boss, thegeneral 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 General Lacuna and GeneralSantos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street, when his carheadlights (in his allegation) suddenly failed. He switched his headlights on "bright" and thereupon he saw a Ford dumptruck looming some 2-1/2 meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e., on the right handside of a person facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming traffic. Thedump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street, partlyblocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector devices setanywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be

carried out early the following morning, Dionisio claimed that he tried to avoid a collision by swerving his car to the left butit was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physicalinjuries 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 the legaland proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted tohim by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio'sinjuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without hisheadlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due rare in the selectionand 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 of the lost dentures of plaintiff;

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

(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, woundedfeeling, serious anxiety, social humiliation, besmirched reputation, feeling of economic insecurity, and the

untold sorrows and frustration in life experienced by plaintiff and his family since the accident incontroversy up to the present time;

(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard of defendants to settle amicably this case with the plaintiff before the filing of this case in court for a smaller 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 reducedto P100,000.00,basically because Dionisio had voluntarily resigned his job such that, inthe opinion of the appellate court, his loss of income "was not solely attributable to theaccident 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 there wasnegligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of theaccident and Dionisio's injuries. We note, however, that both courts failed to pass upon the defense raised by Carboneland Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had beenparked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck.The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in some way, negligent"

but apparently failed to see the relevance of Dionisio's negligence and made no further mention of it. We have examinedthe record both before the trial court and the Intermediate Appellate Court and we find that both parties had placed intothe record sufficient evidence on the basis of which the trial court and the appellate court could have and should havemade findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The petitionersPhoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, thatnegligence was merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted anintervening, efficient cause determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without having to remand it back to the trial court after eleven years, compelsus to address directly the contention put forward by the petitioners and to examine for ourselves the record pertaining toDionisio's alleged negligence 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 a curfew passvalid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with thedump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio wasintoxicated 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 of Patrolman Cuyno who had taken Dionisio, unconscious, to the Makati Medical Center for emergency treatment

immediately after the accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them alongwith the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce anycurfew pass during the trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. Healso offered a certification (dated two years after the accident) issued by one Major Benjamin N. Libarnes of the ZoneIntegrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to issuecurfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent Dionisio had avalid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of thesupposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew passduring the night of the accident and that the preponderance of evidence shows that he did not have such a pass duringthat night. The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed onthe other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out hisheadlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass.

On the second issue — whether or not Dionisio was speeding home that night — both the trial court and the appellatecourt 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. PatrolmanCuyno 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.

2Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30

kilometers per hour and had just crossed the intersection of General Santos and General Lacuna Streets and had startedto 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 official

information and had not been given by the informants pursuant to any duty to do so. Private respondent's objection fails totake account of the fact that the testimony of Patrolman Cuyno is admissible not under the official records exception to thehearsay rule

4but rather as part of the res gestae .

5Testimonial evidence under this exception to the hearsay rule

consists of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as torender inoperative the normal reflective thought processes of the observer and hence made as a spontaneous reaction tothe 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 of night isa sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to bearound at that time. The testimony of Patrolman Cuyno was therefore admissible as part of theres gestae and shouldhave been considered by the trial court. Clearly, substantial weight should have been ascribed to such testimony, eventhough it did not, as it could not, have purported to describe quantitatively the precise velocity at winch Dionisio wastravelling 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 the headlights of Dionisio's car went off as he crossed the intersection but was non-committal as to why they did so. It is the petitioners'contention that Dionisio purposely shut off his headlights even before he reached the intersection so as not to be detectedby the police in the police precinct which he (being a resident in the area) knew was not far away from the intersection.We believe that the petitioners' theory is a more credible explanation than that offered by private respondent Dionisio — i.e., that he had his headlights on but that, at the crucial moment, these had in some mysterious if convenient waymalfunctioned and gone off, although he succeeded in switching his lights on again at "bright" split seconds before contactwith 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 the time



he was taken from his smashed car and brought to the Makati Medical Center in an unconscious condition.7

Thistestimony 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 heavilyunder the influence of liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence.

8There

simply is not enough evidence to show how much liquor he had in fact taken and the effects of that upon his physicalfaculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affectdifferent people differently.

The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent

the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, heextinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did notsee 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 and proximatecause of the accident and of Dionisio's injuries was the wrongful — or negligent manner in which the dump truck wasparked in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand and the accident and respondent's injuries on the other hand, is quite clear. Put ina slightly different manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable consequenceof 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's negligence

must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. Wenote that the petitioners' arguments are drawn from a reading of some of the older cases in various jurisdictions in theUnited States but we are unable to persuade ourselves that these arguments have any validity for our jurisdiction. Wenote, firstly, that even in the United States, the distinctions between "cause" and "condition" which the 'petitioners wouldhave us adopt have already been "almost entirely discredited." Professors and Keeton make this quite clear:

Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm andthe existing "conditions" upon which that cause operated. If the defendant has created only a passivestatic condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces 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 the gasoline, the condition has donequite as much to bring about the fire as the spark; and since that is the very risk which the defendant hascreated, the defendant will not escape responsibility. Even the lapse of a considerable time during which the "condition" remains static will not necessarily affect liability; one who digs a trench in the highway maystill be liable to another who fans into it a month afterward. "Cause" and "condition" still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validityat all, it must refer to the type of case where the forces set in operation by the defendant have come torest 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 in an

probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices.The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General LacunaStreet 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 the accident, was not an efficientintervening or independent cause. What the Petitioners describe as an "intervening cause" was no more than aforeseeable consequent manner which the truck driver had parked the dump truck. In other words, the petitioner truckdriver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk thetruck driver had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it were,the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the jurisvinculum of liability. It is helpful to quote once more from Professor and Keeton:

Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated or one which the defendant has reason to anticipate under the particular



circumstances, the defendant may be negligence among other reasons, because of failure to guard against 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 who leavesthe combustible or explosive material exposed in a public place may foresee the risk of fire from someindependent source. ... In all of these cases there is an intervening cause combining with the defendant's conduct to produce the result and in each case the defendant's negligence consists in failure 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 and important 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's negligence. The courts are quite generally agreed that intervening causes which fall fairly in this categorywill 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 a vehicle 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 'that

occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus, a defendant who blocks the sidewalk and forces the plaintiff to walk in a street wherethe plaintiff will be exposed to the risks of heavy traffic becomes liable when the plaintiff is run down by acar, even though the car is negligently driven; and one who parks an automobile on the highway 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 proximate cause"of the injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is thatwhile the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding theaccident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries

alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it isa matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historicalfunction of that doctrine 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 of contributory 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 the wrongful 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 negligent provided that the defendant had the last clear chance to avoid the casualty and failed to doso. 14 Accordingly, it is difficult to see what role, if any, the common law last clear 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, hasitself been 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 and utilizedas a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the

task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's — was the legal orproximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as thepetitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in thecontinuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors thatmay be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each partyand the character and gravity of the risks created by such act or omission for the rest of the community. The petitionersurge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligencebecause the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the perilprecisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close towiping out the fundamental principle of law that a man must respond for the forseeable consequences of his ownnegligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and toallocate them among the members of society. To accept the petitioners' pro-position must tend to weaken the very bondsof society.



Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16 insupervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix hadallowed its truck driver to bring the dump truck to his home whenever there was work to be done early the followingmorning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which thedump truck is parked when away 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 Dionisio on

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

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20% ofsuch amount. Costs against the petitioners.

SO ORDERED.

[G.R. No. L-8328. May 18, 1956.]

MANILA ELECTRIC COMPANY, Petitioner , vs. SOTERO REMOQUILLO, in his own behalf and as guardian of theminors MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE and AURORA, all surnamed MAGNO,

SALUD MAGNO, and the COURT OF APPEALS (Second Division), Respondents .

D E C I S I O N

MONTEMAYOR, J.

On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his stepbrother, located on RodriguezLanuza Street, Manila, to repair a ―media agua‖ said to be in a leaking condition. The ―media agua‖ was just below the

window of the third story. Standing on said ―media agua‖, Magno received from his son thru that window a 3‘ X 6galvanized iron sheet to cover the leaking portion, turned around and in doing so the lower end of the iron sheet came intocontact with the electric wire of the Manila Electric Company (later referred to as the Company) strung parallel to the edgeof the ―media agua‖ and 2 1/2 feet from it, causing his death by electrocution. His widow and children fled suit to recoverdamages from the company. After hearing, the trial court rendered judgment in their favor — P10,000 as compensatorydamages; chan roblesvirtualawlibraryP784 as actual damages; chan roblesvirtualawlibraryP2,000 as moral andexemplary damages; chan roblesvirtualawlibraryand P3,000 as attorney‘s fees, with costs. On appeal to the Court o Appeals, the latter affirmed the judgment with slight modification by reducing the attorney‘s fees from P3,000 to P1,000with costs. The electric company has appealed said decision to us.

The findings of fact made by the Court of Appeals which are conclusive are stated in the following portions of its decisionwhich we reproduce below:chanroblesvirtuallawlibrary

―The electric wire in question was an exposed, uninsulated primary wire stretched between poles on the street and

carrying a charge of 3,600 volts. It was installed there some two years before Peñaloza‘s house was constructed. Therecord shows that during the construction of said house a similar incident took place, although fortunate]y with much lesstragic consequences. A piece of wood which a carpenter was holding happened to come in contact with the same wire,producing some sparks. The owner of the house forthwith complained toDefendant about the danger which the wirepresented, and as a result Defendant moved one end of the wire farther from the house by means of a brace, but left theother end where it was.

―At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the distance from the electricwire to the edge of the ‗media agua‘ on which the deceased was making repairs was only 30 inches or 2 1/2 feet.Regulations of the City of Manila required that ‗all wires be kept three feet from the building.‘ Appellant contends that inapplying said regulations to the case at bar the reckoning should not be from the edge of the ‗media agua‘ but from theside of the house and that, thus measured, the distance was almost 7 feet, or more then the minimum prescribed. Thiscontention is manifestly groundless, for not only is a ‗media agua‘ an integral part of the building to which it is attached bu



to exclude it in measuring the distance would defeat the purpose of the regulation. Appellant points out, nevertheless, thaeven assuming that the distance, within the meaning of the city regulations, should be measured from the edge of the‗media agua‘, the fact that in the case of the house involved herein such distance was actually less than 3 feet was due tothe fault of the owner of said house, because the city authorities gave him a permit to construct a ‗media agua‘ only onemeter or 39 1/2 inches wide, but instead he built one having a width of 65 3/4 inches, 17 3/8 inches more than the widthpermitted by the authorities, thereby reducing the distance to the electric wire to less than the prescribed minimum of 3feet.

―It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the city authorities for theconstruction of the ‗media agua‘, and that if he had not done soAppellants wire would have been 11 3/8 (inches) more

than the required distance of three feet from the edge of the ‗media agua‘. It is also a fact, however, that after the ‗mediaagua‘ was constructed the owner was given a final permit of occupancy of the house cralaw .

― cralaw The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according to Appellant , noinsulation that could have rendered it safe, first, because there is no insulation material in commercial use for such kind ofwire; chan roblesvirtualawlibraryand secondly, because the only insulation material that may be effective is still in theexperimental stage of development and, anyway, its costs would be prohibitive… ‖

The theory followed by the appellate court in finding for the Plaintiff is that although the owner of the house in constructingthe ―media agua‖ in question exceeded the limits fixed in the permit, still, after making that ―media agua‖, its constructionthough illegal, was finally approved because he was given a final permit to occupy the house; chanroblesvirtualawlibrarythat it was the company that was at fault and was guilty of negligence because although the electricwire in question had been installed long before the construction of the house and in accordance with the ordinance fixinga minimum of 3 feet, mere compliance with the regulations does not satisfy the requirement of due diligence nor avoid the

need for adopting such other precautionary measures as may be warranted; chan roblesvirtualawlibrarythat negligencecannot be determined by a simple matter of inches; chan roblesvirtualawlibrarythat all that the city did was to prescribecertain minimum conditions and that just because the ordinance required that primary electric wires should be not lessthan 3 feet from any house, the obligation of due diligence is not fulfilled by placing such wires at a distance of 3 feet andone inch, regardless of other factors. The appellate court, however, refrained from stating or suggesting what otherprecautionary measures could and should have been adopted.

After a careful study and discussion of the case and the circumstances surrounding the same, we are inclined to agree tothe contention of Petitioner Company that the death of Magno was primarily caused by his own negligence and in somemeasure by the too close proximity of the ―media agua‖ or rather its edge to the e lectric wire of the company by reason ofthe violation of the original permit given by the city and the subsequent approval of said illegal construction of the ―mediaagua‖. We fail to see how the Company could be held guilty of negligence or as lacking in due diligence. Although the cityordinance called for a distance of 3 feet of its wires from any building, there was actually a distance of 7 feet and 2 3/4inches of the wires from the side of the house of Peñaloza. Even considering said regulation distance of 3 feet as referring

not to the side of a building, but to any projecting part thereof, such as a ―media agua‖, had the house owner followed theterms of the permit given him by the city for the construction of his ―media agua‖, namely, one meter or 39 3/8 incheswide, the distance from the wires to the edge of said ―media agua‖ would have been 3 feet and 11 3/8 inches. In fixingsaid one meter width for the ―media agua‖ the city authorities must have wanted to preserve the distance of at least 3 feetbetween the wires and any portion of a building. Unfortunately, however, the house owner disregarding the permitexceeded the one meter fixed by the same by 17 3/8 inches and leaving only a distance of 2 1/2 feet between the ―Mediaagua‖ as illegally constructed and the electric wires. And added to this violation of the permit by the house owner, was itsapproval by the city through its agent, possibly an inspector. Surely we cannot lay these serious violations of a cityordinance and permit at the door of the Company, guiltless of breach of any ordinance or regulation. The Companycannot be expected to be always on the lookout for any illegal construction which reduces the distance between its wiresand said construction, and after finding that said distance of 3 feet had been reduced, to change the stringing orinstallation of its wires so as to preserve said distance. It would be much easier for the City, or rather it is its duty, to beever on the alert and to see to it that its ordinances are strictly followed by house owners and to condemn or disapprove

all illegal constructions. Of course, in the present case, the violation of the permit for the construction of the ―media agua‖was not the direct cause of the accident. It merely contributed to it. Had said ―media agua‖ been only one meter wide asallowed by the permit, Magno standing on it, would instinctively have stayed closer to or hugged the side of the house inorder to keep a safe margin between the edge of the ―media agua‖ and the yawning 2-story distance or height from theground, and possibly if not probably avoided the fatal contact between the lower end of the iron sheet and the wires.

We realize that the presence of the wires in question quite close to the house or its ―media agua‖ was always a source odanger considering their high voltage and uninsulated as they were, but the claim of the company and the reasons givenby it for not insulating said wires were unrefuted as we gather from the findings of the Court of Appeals, and so we have toaccept them as satisfactory. Consequently, we may not hold said company as guilty of negligence or wanting in duediligence in failing to insulate said wires. As to their proximity to the house it is to be supposed that distance of 3 feet wasconsidered sufficiently safe by the technical men of the city such as its electrician or engineer. Of course, a greaterdistance of say 6 feet or 12 feet would have increased the margin of safety but other factors had to be considered such asthat the wires could not be strung or the posts supporting them could not be located too far toward the middle of the



street. Thus, the real cause of the accident or death was the reckless or negligent act of Magno himself. When he wascalled by his stepbrother to repair the ―media agua‖ just below the third story window, it is to be presumed that due to hisage and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter and had training and experiencefor the job. So, he could not have been entirely a stranger to electric wires and the danger lurking in them. Butunfortunately, in the instant care, his training and experience failed him, and forgetting where he was standing, holding the6-feet iron sheet with both hands and at arms length, evidently without looking, and throwing all prudence and discretionto the winds, he turned around swinging his arms with the motion of his body, thereby causing his own electrocution.

In support of its theory and holding that Defendant -Appellant was liable for damages the Court of Appeals cites the caseof Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the case is exactly applicable. There, the premises

involved was that elevated portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia Gate. In the words ofthe Court, it was ―a public place where persons come to stroll, to rest and to enjoy themselves‖. The electric company wasclearly negligent in placing its wires so near the place that without much difficulty or exertion, a person by stretching hishand out could touch them. A boy named Astudillo, placing one foot on a projection, reached out and actually grasped theelectric wire and was electrocuted. The person electrocuted in said case was a boy who was in no position to realize thedanger. In the present case, however, the wires were well high over the street where there was no possible danger topedestrians. The only possible danger was to persons standing on the ―media agua‖, but a ―media agua‖ can hardly beconsidered a public place where persons usually gather. Moreover, a person standing on the ―media agua‖ could not havereached the wires with his hands alone. It was necessary as was done by Magno to hold something long enough to reachthe wire. Furthermore, Magno was not a boy or a person immature but the father of a family, supposedly a tinsmith trainedand experienced in the repair of galvanized iron roofs and ―media agua‖. Moreover, in that very case of Astudillo vs.Manila Electric Co., supra, the court said that although it is a well- established rule that the liability of electric companiesfor damages or personal injuries is governed by the rules of negligence, nevertheless such companies are not insurers of

the safety of the public.But even assuming for a moment that under the facts of the present case the Defendant electric company could beconsidered negligent in installing its electric wires so close to the house and ―media agua‖ in question, and in failing toproperly insulate those wires (although according to the unrefuted claim of said company it was impossible to make theinsulation of that kind of wire), nevertheless to hold the Defendant liable in damages for the death of Magno, suchsupposed negligence of the company must have been the proximate and principal cause of the accident, because if theact of Magno in turning around and swinging the galvanized iron sheet with his hands was the proximate and principalcause of the electrocution, then his heirs may not recover. Such was the holding of this Court in the case of Taylor vs.Manila Electric Railroad and Light Company, 16 Phil., 8. In that case, the electric company was found negligent in leavingscattered on its premises fulminating caps which Taylor, a 15- year old boy found and carried home. In the course ofexperimenting with said fulminating caps, he opened one of them, held it out with his hands while another boy applied alighted match to it, causing it to explode and injure one of his eyes eventually causing blindness in said eye. Said thisTribunal in denying recovery for the injury:chanroblesvirtuallawlibrary

― cralaw, so that while it may be true that these injuries would not have been incurred but for the negligent act ofthe Defendant in leaving the caps exposed on its premises, neverthelessPlaintiff ‘s own act was the proximate andprincipal cause of the accident which inflicted the injury.‖

To us it is clear that the principal and proximate cause of the electrocution was not the electric wire, evidently a remotecause, but rather the reckless and negligent act of Magno in turning around and swinging the galvanized iron sheetwithout taking any precaution, such as looking back toward the street and at the wire to avoid its contacting said ironsheet, considering the latter‘s length of 6 feet. For a better understanding of the rule on remote and proximate cause withrespect to injuries, we find the following citation helpful:chanroblesvirtuallawlibrary

―A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more t han furnish thecondition or give rise to the occasion by which the injury was made possible, if there intervened between such prior orremote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injurywould not have happened but for such condition or occasion. If no danger existed in the condition except because of the

independent cause, such condition was not the proximate cause. And if an independent negligent act or defectivecondition sets into operation the circumstances which result in injury because of the prior defective condition, suchsubsequent act or condition is the proximate cause.‖ (45 C.J. pp. 931-332.).

We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close to houses is a constantsource of danger, even death, especially to persons who having occasion to be near said wires, do not adopt thenecessary precautions. But may be, the City of Manila authorities and the electric company could get together and devisemeans of minimizing this danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares maygreatly minimize danger to pedestrians because drivers of motor vehicles may expect danger and slow down or even stopand take other necessary precaution upon approaching said lanes, so, a similar way may possibly be found. Since thesehigh voltage wires cannot be properly insulated and at reasonable cost, they might perhaps be strung only up to theoutskirts of the city where there are few houses and few pedestrians and there step-down to a voltage where the wirescarrying the same to the city could be properly insulated for the better protection of the public.



In view of all the foregoing, the appealed decision of the Court of Appeals is hereby reversed and the complaint filedagainst the Company is hereby dismissed. No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., andEndencia, JJ., concur.

G.R. No. L-15688 November 19, 1921

REMIGIO RODRIGUEZ, ET AL., plaintiffs-appellees,vs.

THE MANILA RAILROAD COMPANY, defendant-appellant.

Orense & Vera for appellant.Domingo Imperial for appellees.

STREET, J.:

This action was instituted jointly by Remigio Rodrigueza and three others in the Court of First Instance of theProvince of Albay to recover a sum of money of the Manila Railroad Company as damages resulting from a fire kindled bysparks from a locomotive engine under the circumstances set out below. Upon hearing the cause upon the complaint,

answer and an agreed statement of facts, the trial judge rendered judgment against the defendant company in favor of theplaintiffs and awarded to them the following sums respectively as damages, to wit, (1) to Remigio Rodrigueza, P3,000; (2)to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to Perfecta Losantas, P150; all with lawful interest fromMarch 21, 1919. From this judgment the defendant appealed.

The facts as appearing from the agreed statement, in relation with the complaint, are to the effect that the defendantRailroad Company operates a line through the district of Daraga in the municipality of Albay; that on January 29, 1918, asone of its trains passed over said line, a great quantity of sparks were emitted from the smokestack of the locomotive, andfire was thereby communicated to four houses nearby belonging to the four plaintiffs respectively, and the same wereentirely consumed. All of these houses were of light construction with the exception of the house of Remigio Rodrigueza,which was of strong materials, though the roof was covered with nipa and cogon. The fire occurred immediately after thepassage of the train, and a strong wind was blowing at the time. It does not appear either in the complaint or in the agreedstatement whose house caught fire first, though it is stated in the appellant's brief that the fire was first communicated to

the house of Remigio Rodrigueza, from whence it spread to the others.

In the fourth paragraph of the complaint — which is admitted to be true — it is alleged that the defendant RailroadCompany was conspicuously negligent in relation to the origin of said fire, in the following respects, namely, first, in failingto exercise proper supervision over the employees in charge of the locomotive; secondly, in allowing the locomotive whichemitted these sparks to be operated without having the smokestack protected by some device for arresting sparks; thirdly,in using in its locomotive upon this occasion Bataan coal, a fuel of known inferior quality which, upon combustion,produces sparks in great quantity.

The sole ground upon which the defense is rested is that the house of Remigio Rodrigueza stood partly within thelimits of the land owned by the defendant company, though exactly how far away from the company's track does notappear. It further appears that, after the railroad track was laid, the company notified Rodrigueza to get his house off theland of the company and to remove it from its exposed position. Rodrigueza did not comply with this suggestion, though

he promised to put an iron roof on his house, which he never did. Instead, he changed the materials of the main roof tonipa, leaving the kitchen and media-aguas covered with cogon. Upon this fact it is contended for the defense that therewas contributory negligence on the part of Remigio Rodrigueza in having his house partly on the premises of the RailroadCompany, and that for this reason the company is not liable. This position is in our opinion untenable for the reasonswhich we shall proceed to state.

In the first place, it will be noted that the fact suggested as constituting a defense to this action could not in any viewof the case operate as a bar to recovery by the three plaintiffs other than Remigio Rodrigueza, even assuming that the firewas first communicated to his house; for said three plaintiffs are in nowise implicated in the act which supposedlyconstitutes the defense. In this connection it will be observed that the right of action of each of these plaintiffs is totallydistinct from that of his co-plaintiff, so much so that each might have sued separately, and the defendant if it had seen fitto do so, might in this case have demurred successfully to the complaint for misjoinder of parties plaintiff. The fact that the



several rights of action of the different plaintiffs arose simultaneously out of one act of the defendant is not sufficient of itself to require, or even permit, the joinder of such parties as coplaintiffs in a single action (30 Cyc., 114) if objection hadbeen made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta Losantas are therefore entitled to recover upon theadmitted fact that this fire originated in the negligent acts of the defendant; and the circumstance that the fire may havebeen communicated to their houses through the house of Remegio Rodrigueza, instead of having been directlycommunicated from the locomotive, is immaterial. (See 38 Am. Dec., 64, 77;

111 R. C. L., 968-971; Kansas City, etc.

Railroad Co. vs. Blaker, 64 L. R. A., 81 Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)

With respect to the case of Remegio Rodrigueza it is to be inferred that his house stood upon this ground before the

Railroad Company laid its line over this course; and at any rate there is no proof that this plaintiff had unlawfully intrudedupon the railroad's property in the act of building his house. What really occurred undoubtedly is that the company, uponmaking this extension, had acquired the land only, leaving the owner of the house free to remove it. Hence he cannot beconsidered to have been a trespasser in the beginning. Rather, he was there at the sufferance of the defendant company,and so long as his house remained in this exposed position, he undoubtedly assumed the risk of any loss that might haveresulted from fires occasioned by the defendant's locomotives if operated and managed with ordinary care. But he cannotbe held to have assumed the risk of any damage that might result from the unlawful negligence acts of the defendant.Nobody is bound to anticipate and defend himself against the possible negligence of another. Rather he has a right toassume that the other will use the care of the ordinary prudent man. (Philadelphia and Reading RailroadCo. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97.)

In the situation now under consideration the proximate and only cause of the damage that occurred was thenegligent act of the defendant in causing this fire. The circumstance that Remigio Rodrigueza's house was partly on theproperty of the defendant company and therefore in dangerous proximity to passing locomotives was an antecedentcondition that may in fact have made the disaster possible, but that circumstance cannot be imputed to him ascontributory negligence destructive of his right of action, because, first, that condition was not created by himself;secondly, because his house remained on this ground by the toleration, and therefore with the consent of the RailroadCompany; and thirdly, because even supposing the house to be improperly there, this fact would not justify the defendantin negligently destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U. S., 454; 23 L. ed., 356; Norfolk etc.Ry. Co. vs. Perrow, 101 Va., 345, 350.)lawphil.net

The circumstance that the defendant company, upon planting its line near Remigio Rodrigueza's house, hadrequested or directed him to remove it, did not convert his occupancy into a trespass, or impose upon him any additionalresponsibility over and above what the law itself imposes in such situation. In this connection it must be remembered thatthe company could at any time have removed said house in the exercise of the power of eminent domain, but it electednot to do so.

Questions similar to that now before us have been under the consideration of American courts many times, andtheir decisions are found to be uniformly favorable to recovery where the property destroyed has been placed in whole or in part on the right of way of the railroad company with its express or implied consent. (L. R. Martin Timber Co. vs. GreatNorthern Railway Co., 123 Minn., 423; Ann. Cas., 1915A, p. 496, note; Burroughs vs.Housatonic R.R. Co., 15 Conn., 124;38 Am. Dec., 64; 74; Southern Ry. Co. vs. Patterson, 105 Va. 6; 8 Ann. Cas., 44.) And the case for the plaintiff isapparently stronger where the company constructs its line in proximity to a house already built and fails to condemn it andremove it from its right of way.

From what has been said it is apparent that the judgment appealed from is in all respect in conformity with the law,and the same is accordingly affirmed, with costs. So ordered.

Johnson, Araullo, Avanceña and Villamor, JJ., concur.

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