II.
CONCEPTS AND REQUISITES cases filed worldwide, the ones involving the doctrine of strict
A. Doctrines
Prima Facie Tort Doctrine
1. From lexisnexis
The prima facie tort doctrine exists on the fringes of tort law as
a theory that allows a plaintiff to recover for damage resulting
from a defendant's intentional and malicious infliction of harm.
Under this theory, a court's inquiry focuses on the defendant's
motivations and intentions to determine whether liability should
be imposed.
Courts have used this general doctrine to establish a
separate cause of action, the prima facie
tort. 2 Alternatively, they have used the theory to justify
imposing liability under other causes of action by expanding
existing torts or by creating new ones. 3 The courts' various
approaches to treatment and application of the prima facie tort
doctrine arise from different and often incompatible
interpretations of the tort's purpose and required elements. 4
The prima facie tort is generally defined as the "infliction
of intentional harm, resulting in damages, without excuse
or justification, by an act or series of acts which would
otherwise be lawful." 5 The specific applications of this
definition vary greatly based on the manner in which courts
interpret these elements. These divergencies in interpretation
lead courts to apply the prima facie tort in inconsistent ways.
The courts' confusion in interpretation has three focal points:
defining "otherwise lawful," 6understanding the role of malice in
applying the tort, 7 and incorporating "excuse" or "justification"
as grounds for denying liability.
2. From JSTor
Prima facie tort is a facial tort, that is a rebuttable
determination of the existence of a legal duty, breach of that
duty, and damages which flow therefrom due to proximate and
legal causation.
Every prima facie tort consists of the following elements:
1) The existence of a legally recognized duty of the defendant
to the plaintiff,
2) A breach of that duty by the plaintiff, and
3) Proximate and legal Causation.
Doctrine of Strict or Absolute Liability of Tort
Absolute Liability
Definition: If an industry or enterprise is engaged in some
inherently dangerous activity from which it is deriving
commercial gain and that activity is capable of causing
catastrophic damage then the industry officials are absolutely
liable to pay compensation to the aggrieved parties. The
industry cannot plead that all safety measures were taken care
of by them and that there was negligence on their part. They
will not be allowed any exceptions neither can they take up any
defence like that of Act of God or Act of Stranger.
Strict Liability
The earlier stated definition remains half done if the following
terms are not emphasized upon:-
Dangerous Thing: According to the above mentioned rule,
the liability of escape of a thing from a persons land will arise
only when the thing or substance collected is a dangerous thing
i.e. a thing which is likely to cause mischief or damage to other
people in person or their property on its escape. In various torts
liability have held large body of water, gas, electricity,
vibrations, yew trees, sewage, flag-pole, explosives, noxious
fumes, rusty wires, etc. as dangerous things.
Escape: The thing that has caused damage or mischief
must escape from the area under the occupation and control
of the defendant. This can be better explained by bringing in
two examples-
1. Case- Crowhurst vs.Amersham Burial Board, (1878) 4
Ex. D. 5; Cheater vs. Cater, (1908) 1 K.B. 247:-
If the branches of a poisonous tree that is planted on the
defendants land spreads out to the neighbouring plaintiffs
land, this amounts to the escape of that dangerous, poisonous
thing from the boundaries or control of the defendant and onto
the plaintiffs land. Now, the issue arises, if the cattle of the
plaintiff nibbles on these leaves, then the defendant will be held
liable under the mentioned rule even when nothing was done
intentionally on his part.
2. Case- Read vs. Lyons and Co., (1947) A.C. 156:-
The plaintiff worked as an employee in the defendants shell
manufacturing company, while she was on duty within the
premises of the company, a shell being manufactured there
exploded due to which the plaintiff suffered injuries. A case was
filed against the defendant company but the court let off the
defendant giving the verdict that strict liability is not applicable
here as the explosion took place within the defendants
premises, the concept of escape of a dangerous thing like the
shell from the boundaries of the defendant is missing here. Also
negligence on the part of the defendant could not be proved.
Non-natural use of land: Water collected on land for
domestic purposes does not amount to non-natural use of land
but storing it in huge quantity like that in a reservoir amounts to
non-natural use of the land (Rylands vs. Fletcher). This
distinction between natural and non-natural use of land can be
made possible by its adjustment to existing social conditions.
Growing of trees is held natural use of land but if the defendant
is found to grow trees of poisonous nature on his land, then it
is non-natural use of the land. If the land has been used
naturally yet a conflict has risen between the defendant and the
plaintiff, owing to natural use of land, the court will not hold the
defendant liable.
Mischief: To make the defendant liable under the doctrine
of strict liability, the plaintiff needs to prove that the defendant
made non-natural use of his land and escape of the dangerous
thing caused mischief/damage to him. The resultant damage
needs to be shown by the plaintiff after successfully proving
that unnatural use of the land was done by the defendant.
Case:- In Charing Cross Electric Supply Co. vs. Hydraulic
Power Co. (1914) 3 KB 772, the defendants duty was to
supply water for industrial works but they were unable to keep
their mains charged with the minimum required pressure which
led to the bursting of the pipe line at four different places
resulting in heavy damage to the plaintiff which was proved with
evidence. The defendants were held liable in spite of no fault
of theirs.
Brief Summary: Essentials for a tort to be held under the
Doctrine of Strict Liability
a) Non-natural use of land must have taken place.
b) Escape of a dangerous thing from that land on which it was
kept must have taken place.
c) The dangerous thing must have caused mischief.
A few instances where this rule is applicable:-
a) Activities involving non-natural use of land.
b) Activities involving dangerous operations such as blasting,
mining, etc.
c) Liability arising out of keeping or taming dangerous animals.
d) Liability for dangerous structures e.g. building, ship, rail, etc.
e) Liability for dangerous chattels such as crackers, explosives,
petrol, etc.

Inception of this rule: The Strict Liability principle is also called

as No Fault Liability. This is contradictory to the general
principle of negligence in torts where a person can be held
liable for commission of a tort only when the plaintiff can prove
negligence on his part and the defendant himself is unable to
disprove it. In the cases that I will now mention, the onus of
being negligent can be ignored. In spite of all due care taken
by the defendant, he will invariably be held for the
consequences of the damages caused to any person outside
of the boundary of the defendants land by any hazardous thing
that he maintained on the same stretch of land i.e. in spite of
no intentional or unintentional fault of his, the defendant can be
held liable hence, explaining the term No Fault Liability.

This principle was first applied in the House of Lords in respect

to the case Rylands vs. Fletcher, (1868).

Rylands vs. Fletcher, 1868: The defendant (Fletcher) an

owner of a mill in Answorth with an aim to improve water supply
for his mill employed independent and efficient engineers for
the construction of a reservoir. During their excavation of the
ground underneath, they came across some shafts and
passages but chose not to block them. Post construction of the
reservoir when they filled it with water, all the water flowed
through the unblocked old shafts and passages to the plaintiffs
(Rylands) coal mines on the adjoining land and inundated them
completely. The engineers kept the defendant in the dark about
the occurrence of these incidents. On a suit filed before the
court by the plaintiff against the defendant, the court though
ruled out negligence on the defendants part but held him liable
under the rule of Strict Liability. Any amount of carefulness on
his part is not going to save him where his liability falls under
the scope of No Fault Liability.

Strict Liability Absolute Liability (modified version of Strict Liability)

1. The nature and quantum of damages that are 1. The nature and quantum of damages that are payable to the
payable to the plaintiffs are compensatory in nature plaintiffs are exemplary, the compensation provided to each aggrieved
i.e. in accordance to the amount of loss suffered by party is much greater in amount that is the damages paid are more as
the plaintiff, damages will be paid equivalent to the in such cases people lose their lives and environmental conditions
amount lost. become life threatening.
2. The defendants can take the help of several
defences like the following:-
Damage caused due to natural use of land
Consent of the Plaintiff
Plaintiffs Own Default
3. In this case, it is an absolute liability put upon the defendants where
Act of Stranger
the scope of any defence being taken is not allowed. They are held
Act of God or Vis Major
liable for payment of damages under all circumstances.
Common Benefit of Plaintiff and the Defendant
Statutory Authority

If any of the defences apply to a particular case

correctly as decided by the presiding Judge, then the
defendant will not be held liable.

B. Elements of Quasi-Delict
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this chapter.
- It covers all wrongful acts or omissions as long as
they are not constitutive of breach of contract or not
punishable as offenses either under RPC or SL
Elements of Quasi-Delict (Culpa Aquiliana)
a) There must be an act or omission
b) There must be fault or negligence attributable to the
person charged
c) There must be damage or injury
d) There must be a direct relation of cause and effect
between the act arising from fault or negligence and
the damage injury (causal connection)
e) There is no pre-existing contract between the parties
ACTS OR OMISSIONS
IMSON vs CA
Petitioner: Virgilio Imson
Respondent: CA, holidays Hills Stock and Breeding Farm
Corporation, FNCB Finance Corporation
Citation: GR 106436
Date of Promulgation: Dec. 3, 1994
Ponente: Puno
FACTS:
Dec. 11, 1983 vehicular collision, involving petitioners
Toyota Corolla and a Hino Diesel Truck registered under
the names of the respondents
Such collision seriously injured the petitioner
Petitioner: Complaint for Damages. He sued private
respondents as registered owners of the truck; the truck
driver, Felix Calip; the beneficial owners of the truck,
Gorgonio Co Adarme, Felisa Co and Cirilia Chua Siok
Bieng, and the truck insurer, Western Guaranty
Corporation
Complaint: prayed that defendants be ordered to pay,
jointly and severally PhP 270, 000 as compensatory
damages, PhP 50k each as moral and exemplary,
attorneys fees, litigation fees and costs of suit
Defendants Driver and Beneficial Owners: failed to file
an Answer and were declared in default
May 29, 1987: Petitioner and Defendant insurer entered
into a Compromise Agreement, which provided:
1. Defendant Western Guaranty Corporation (Western
Guaranty for short) admits that its total liability under
the laws and the insurance contract sued upon is
P70,000.00;
2. In full settlement of its liability under the laws and
the said insurance contract, defendant Western
Guaranty shall pay plaintiff (herein petitioner) the
amount of P70,000.00 upon the signing of this
compromise agreement;
3. This compromise agreement shall in no way waive
nor prejudice plaintiffs (herein petitioner's) rights to
proceed against the other defendants with respect the
remainder of his claims;
4. This compromise agreement shall be a full and final
settlement of the issues between plaintiff (herein
petitioner) and defendant Western Guaranty in their
complaint and answer and, from now on, they shall
have no more right against one another except the
enforcement of this compromise agreement.
RTC: dismissed the Complaint for Damages against
Western Guaranty Corporation, in view of the
Compromise Agreement
July 13, 1987: Holidays Hill Stock received the Order of
dismissal, and 18 months after that, it moved to dismiss
the case against all other defendants.
- It argued that since they are all indispensable parties
under a common cause of action, the dismissal of the
case against defendant insurer must result in the
dismissal of the suit against all of them.
- DENIED
Holidays Hill Stock and Breeding Farm Corp: assailed
the denial order through a Petition for Certiorari,
Prohibition and Mandamus with TRO. REVERSED.
APPLIED THE LIM TANHU vs PAMOLETE
ISSUES:
1. W/N there is a common cause of action against
the defendants?
2. W/N Western Guaranty Corp is an indispensable
party in this case?
HELD:
1) NO.
In the case of Lim Tanhu v. Ramolete, 66 SCRA 425, 458-459
(1975) this court held that:
. . . (I)n all instances where a common cause of action
is alleged against several defendants, some of whom
answer and the others do not, the latter or those in
default acquire a vested right not only to own the
defense interposed in the answer of their co-
defendant or co-defendants not in default but also to
expect a result of the litigation totally common with
them in kind and in amount whether favorable or
unfavorable. The substantive unity of the plaintiffs
cause against all the defendants is carried through to
its adjective phase as ineluctably demanded by the
homogeneity and indivisibility of justice itself. . . . The
integrity of the common cause of action against all the
defendants and the indispensability of all of them in
the proceedings do not permit any possibility of
waiver of the plaintiffs right only as to one or some of
them, without including all of them, and so, as a rule,
withdrawal must be deemed to be a confession of
weakness as to all. . . . . Where all the defendants are
indispensable parties, for which reason the absence
of any of them in the case would result in the court
losing its competency to act validly, any compromise
that the plaintiff might wish to make with any of them
must, as a matter of correct procedure, have to await
until after the rendition of the judgment, at which
stage the plaintiff may then treat the matter of its
execution and the satisfaction of his claim as variably
as he might please. Accordingly, in the case now
before Us together with the dismissal of the complaint
against the non-defaulted defendants, the court
should have ordered also the dismissal thereof as to
petitioner (referring to the defaulting defendants in
the case).
In sum, Lim Tanhu states that where a complaint alleges a
common cause of action against defendants who are all
indispensable parties to the case, its dismissal against any of
them by virtue of a compromise agreement with the plaintiff
necessarily results in the dismissal of the case against the
other defendants, including those in default. The ruling is
rooted on the rationale that the court's power to act in a case
involving a common cause of action against indispensable
parties "is integral and cannot be split such that it cannot relieve
any of them and at the same time render judgment against the
rest. 10
For Lim Tanhu to apply to the case at bench, it must be
established that: (1) petitioner has common cause of action
against private respondents and the other defendants in Civil
Case No. 248-R; and (2) all the defendants are indispensable
parties to the case.
Cause of action has a fixed meaning in this jurisdiction. It
is the delict or wrong by which the right of the plaintiff is
violated by the defendant. 11 The question as to whether a
plaintiff has a cause of action is determined by the averments
in the pleadings pertaining to the acts of the defendant.
Whether such acts give him a right of action is determined by
substantive law. 12
In the case at bench, it is clear that petitioner has different
and separate causes of action against the defendants in
the case. The allegations in the Complaint show that
petitioner seeks to recover from the truck driver for his
wrong which caused injury to petitioner and his car. The
cause of action against him is based on quasi-delict under
Article 2176 of the New Civil Code. Quasi-delict, too, is the
basis of the cause of action against defendants beneficial
and registered owners. But in their case, it is Article 2180
of the same Code which governs the rights of the parties.
However, with respect to defendant Western Guaranty
Corporation, petitioner's cause of action is based on
contract. He seeks to recover from the insurer on the basis
of the third party liability clause of its insurance contract
with the owners of the truck. This is acknowledged by the
second paragraph of the compromise agreement between
petitioner and defendant insurer, thus:
2. In full settlement of its liability under the
laws and the said insurance contract,
defendant Western Guaranty shall pay
plaintiff (herein petitioner) the amount of
P70,000.00 upon the signing of this
compromise agreement.
Quite clearly then, Lim Tanhu will not apply to the
case at bench for there is no showing that petitioner
has a common cause of action against the
defendants in Civil Case No. 248-R.
2) No.
Defendants in Civil Case No. 248-R are not all indispensable
parties. An indispensable party is one whose interest will
be affected by the court's action in the litigation, and
without whom no final determination of the case can be
had. The party's interest in the subject matter of the suit and in
the relief sought are so inextricably intertwined with the other
parties' that his legal presence as a party to the proceeding is
an absolute necessity. 13 In his absence there cannot be a
resolution of the dispute of the parties before the court which is
effective, complete, or equitable.14
Conversely, a party is not indispensable to the suit if his interest
in the controversy or subject matter is distinct and divisible from
the interest of the other parties and will not necessarily be
prejudiced by a judgment which does complete justice to the
parties in court.15 He is not indispensable if his presence would
merely permit complete relief between him and those already
parties to the action, or will simply avoid multiple litigation. 16
It is true that all of petitioner's claims in Civil Case No. 248-R is
premised on the wrong committed by defendant truck driver.
Concededly, the truck driver is an indispensable party to the
suit. The other defendants, however, cannot be categorized as
indispensable parties. They are merely proper parties to the
case. Proper parties have been described as parties whose
presence is necessary in order to adjudicate the whole
controversy, but whose interests are so far separable that
a final decree can be made in their absence without
affecting them.17 It is easy to see that if any of them had not
been impleaded as defendant, the case would still proceed
without prejudicing the party not impleaded. Thus, if petitioner
did not sue Western Guaranty Corporation, the omission would
not cause the dismissal of the suit against the other
defendants. Even without the insurer, the trial court would not
lose its competency to act completely and validly on the
damage suit. The insurer, clearly, is not an indispensable
party in Civil Case No. 248-R.
IN VIEW WHEREOF, the instant petition is GRANTED. The
Decision, dated July 10, 1992, of the Court of Appeals in
CA-G.R. SP No. 17651 is REVERSED AND SET ASIDE. The
Complaint in Civil Case No. 248-R is REINSTATED and
REMANDED to the trial court for further proceedings. No
costs.
ANDAMO vs IAC
Petitioner: Natividad Andamo and Emmanuel Andamo
Respondents: IAC and Missionaries of Our Lady of La Salette
Citation: GR No. 74761
Date of Promulgation: November 6, 1990
Ponente: Fernan
FACTS:
Petitioner spouses Emmanuel and Natividad Andamo
o Owners of a parcel of land situated in Biga
(Biluso) Silang, Cavite which is adjacent to that
of private respondent, Missionaries of Our
Lady of La Salette, Inc., a religious corporation.
o WITHIN THE LAND of the religious corporation
were waterpaths and contrivances, which
ALLEGEDLY:
inundated and eroded petitioners land,
caused a young man to drown,
damaged petitioners crops and plants,
washed away costly fences,
endangered the lives of petitioners and
their laborers during rainy and stormy
seasons, and
exposed plants and other improvements
to destruction.
July 1982 petitioners instituted a criminal action before
RTC Cavite, Branch 4 (Tagaytay City), against EFREN
MUSNGI, ORLANDO SAPUAY and RUTILLO
MALLILLIN, officers and directors of herein respondent
corporation, for destruction by means of inundation
under Article 324 of the Revised Penal Code.
February 22, 1983 petitioners filed another action action
against respondent corporation, this time a civil case,
docketed as Civil Case No. TG-748, for damages with
prayer for the issuance of a writ of preliminary injunction
before the same court.
March 11, 1983 - respondent corporation filed its answer
to the complaint and opposition to the issuance of a writ of
preliminary injunction.
o April 26, 1984 - the trial court, acting on
respondent corporation's motion to dismiss or
suspend the civil action, issued an order
suspending further hearings in Civil Case No,
TG-748 until after judgment in the related
Criminal Case No. TG-907-82.
August 27, 1984 the trial court DISMISSED the civil case
for lack of jurisdiction, as the criminal case which was
instituted ahead of the civil case was still unresolved. Said
order was anchored on the provision of Section 3 (a),
Rule III of the Rules of Court which provides that
criminal and civil actions arising from the same
offense may be instituted separately, but after the
criminal action has been commenced the civil action
cannot be instituted until final judgment has been
rendered in the criminal action.
APPELLATE COURT (February 17, 1986)
o AFFIRMED the decision of the trial court.
o A motion for recon filed the petitioners was
DENIED by the Appellate Court in its reso on
May 19, 1986.
ISSUE: WON the petitioners can claim damages for the
destruction caused by the respondents waterpaths and
contrivances based on Arts. 2176 and 2177 of the CC on quasi-
delicts
HELD:
Yes.
A careful examination of the aforequoted complaint shows that
the civil action is one under Articles 2176 and 2177 of the Civil
Code on quasi-delicts. All the elements of a quasi-delict are
present, to wit: (a) damages suffered by the plaintiff, (b)
fault or negligence of the defendant, or some other person
for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and
contrivances built by respondent corporation are alleged
to have inundated the land of petitioners. There is
therefore, an assertion of a causal connection between the
act of building these waterpaths and the damage
sustained by petitioners. Such action if proven constitutes
fault or negligence which may be the basis for the recovery
of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article
1902, now Article 2176 of the Civil Code and held that "any
person who without due authority constructs a bank or dike,
stopping the flow or communication between a creek or a lake
and a river, thereby causing loss and damages to a third party
who, like the rest of the residents, is entitled to the use and
enjoyment of the stream or lake, shall be liable to the payment
of an indemnity for loss and damages to the injured party.
While the property involved in the cited case belonged to the
public domain and the property subject of the instant case is
privately owned, the fact remains that petitioners' complaint
sufficiently alleges that petitioners have sustained and will
continue to sustain damage due to the waterpaths and
contrivances built by respondent corporation. Indeed, the
recitals of the complaint, the alleged presence of damage to
the petitioners, the act or omission of respondent corporation
supposedly constituting fault or negligence, and the causal
connection between the act and the damage, with no pre-
existing contractual obligation between the parties make a
clear case of a quasi delict or culpa aquiliana.
It must be stressed that the use of one's property is not without
limitations. Article 431 of the Civil Code provides that "the
owner of a thing cannot make use thereof in such a manner as
to injure the rights of a third person." SIC UTERE TUO UT
ALIENUM NON LAEDAS. Moreover, adjoining landowners
have mutual and reciprocal duties which require that each must
use his own land in a reasonable manner so as not to infringe
upon the rights and interests of others. Although we recognize
the right of an owner to build structures on his land, such
structures must be so constructed and maintained using all
reasonable care so that they cannot be dangerous to adjoining
landowners and can withstand the usual and expected forces
of nature. If the structures cause injury or damage to an
adjoining landowner or a third person, the latter can claim
indemnification for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a
person for damage caused by his act or omission constituting
fault or negligence, thus:
Article 2176. Whoever by act or omission
causes damage to another, there being
fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if
there is no pre-existing contractual relation
between the parties, is called a quasi-delict
and is governed by the provisions of this
chapter.
Article 2176, whenever it refers to "fault or negligence",
covers not only acts "not punishable by law" but also acts
criminal in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, (if the tortfeasor is actually
charged also criminally), to recover damages on both scores,
and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases
vary. 13
The distinctness of quasi-delicta is shown in Article 2177 of the
Civil Code, which states:
Article 2177. Responsibility for fault or
negligence under the preceding article is
entirely separate and distinct from the civil
liability arising from negligence under the
Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission
of the defendant.
According to the Report of the Code
Commission "the foregoing provision
though at first sight startling, is not so novel
or extraordinary when we consider the
exact nature of criminal and civil
negligence. The former is a violation of the
criminal law, while the latter is a distinct and
independent negligence, which is a "culpa
aquiliana" or quasi-delict, of ancient origin,
having always had its own foundation and
individuality, separate from criminal
negligence. Such distinction between
criminal negligence and "culpa extra-
contractual" or "cuasi-delito" has been
sustained by decisions of the Supreme
Court of Spain ... 14
In the case of Castillo vs. Court of Appeals, 15 this Court held
that a quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all its own,
and individuality that is entirely apart and independent from a
delict or crime a distinction exists between the civil liability
arising from a crime and the responsibility for quasi-delicts or
culpa extra-contractual. The same negligence causing
damages may produce civil liability arising from a crime under
the Penal Code, or create an action for quasi-delicts or culpa
extra-contractual under the Civil Code. Therefore, the acquittal
or conviction in the criminal case is entirely irrelevant in the civil
case, unless, of course, in the event of an acquittal where the
court has declared that the fact from which the civil action arose
did not exist, in which case the extinction of the criminal liability
would carry with it the extinction of the civil liability.
In Azucena vs. Potenciano, 16 the Court declared that in quasi-
delicts, "(t)he civil action is entirely independent of the criminal
case according to Articles 33 and 2177 of the Civil Code. There
can be no logical conclusion than this, for to subordinate the
civil action contemplated in the said articles to the result of the
criminal prosecution whether it be conviction or acquittal
would render meaningless the independent character of the
civil action and the clear injunction in Article 31, that his action
may proceed independently of the criminal proceedings and
regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17,
1986 of the then Intermediate Appellate Court affirming the
order of dismissal of the Regional Trial Court of Cavite,
Branch 18 (Tagaytay City) dated August 17, 1984 is hereby
REVERSED and SET ASIDE. The trial court is ordered to
reinstate Civil Case No. TG-748 entitled "Natividad V.
Andamo and Emmanuel R. Andamo vs. Missionaries of
Our Lady of La Salette Inc." and to proceed with the
hearing of the case with dispatch. This decision is
immediately executory. Costs against respondent
corporation.
SO ORDERED.
FAULT OR NEGLIGENCE
Fault
-condition where a person acts in a manner contrary to
what normally should have done;
-breach of statutory duty or other act or omission which
gives rise to a liability in torts or would give rise to the
defense of a contributory negligence
Negligence
- omission of that diligence that is required by the
nature of the obligation and corresponds with the
circumstances of the persons, time and place
- want of the care required by the circumstances. It is
a relative or comparative, not an absolute, term and
its application depends upon the situation of the
parties and the degree of care and vigilance which
the circumstances reasonably require. Where the
danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary care
under the circumstances.
Emergency Rule
- Under that rule, one who suddenly finds himself in a
place of danger, and is required to act without time to
consider the best means that may be adopted to
avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and
upon reflection may appear to have been a better
method, unless the emergency
- in which he finds himself is brought about by his own
negligence.
Proper criterion for determining the existence of
negligence in a given case 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 to warrant his foregoing conduct or
guarding against its consequences
US vs BARIAS
Petitioner: The United States
Respondents: Segundo Barias
Citation: GR No. 7567
Date of Promulgation: Nov. 12, 1912
Ponente: Carson
FACTS:
Segundo Barias: motorman for Manila Electric Railroad
and Light Company
November 11, 1911: At about 6am, he was driving his car
along Rizal Avenue and stopped it near the intersection of
that street with Calle Requesen to take on some
passengers
When the car stopped, the defendant looked backward,
presumably to note whether all the passengers were
aboard, and then started his car. At that moment Ferminia
Jose, a child about 3 years old, walked or ran in front of
the car. She was knocked down and dragged some little
distance underneath the car, and was left dead upon the
track. The motorman proceeded with his car to the end of
the track, some distance from the place of the accident,
and apparently knew nothing of it until his return, when he
was informed of what had happened.
There is no substantial dispute as to the facts.
It is true that one witness testified that the defendant
started the car without turning his head, and while he was
still looking backwards and that this testimony was directly
contradicted by that of another witness. But we do not
deem it necessary to make an express finding as to the
precise direction in which the defendants head was turned
at the moment when he started his car. It is sufficient for
the purpose of our decision to hold, as we do, that the
evidence clearly discloses that he started his car from a
standstill without looking over the track immediately in
front of the car to satisfy himself that it was clear. He did
not see the child until after he had run his car over it, and
after he had returned to the place where it was found
dead, and we think we are justified in saying that wherever
he was looking at the moment when he started his car, he
was not looking at the track immediately in front of the car,
and that he had not satisfied himself that this portion of the
track was clear immediately before putting the car in
motion.
RTC: found him guilty of Imprudencia Temeraria
(Reckless Negligence) as charged in the Information, and
sentenced him to 1 year and 1 month of imprisonment in
Bilibid Prison and to pay the cost of the action
ISSUE: W/N the evidence shows such carelessness or
want of ordinary care on the part of the defendant as to
amount to Imprudencia Temeraria?
HELD:
Yes.
Judge Cooley in his work on Torts (3d ed., 1324) defines
negligence to be: "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."cralaw virtua1aw library
In the case of U. S. v. Nava, (1 Phi. Rep., 580), we held that:
"Reckless negligence consists of the failure to take such
precautions or advance measures in the performance of an act
as the most common prudence would suggest whereby injury
is caused to persons or to property."cralaw virtua1aw library
Silvela says in his "Derecho Penal," in speaking of reckless
imprudence (imprudencia temeraria):jgc:chanrobles.com.ph
"The word negligencia used in the code, and the term
imprudencia with which this punishable act is defined, express
this idea in such a clear manner that it is not necessary to
enlarge upon it. He who has done everything on his part to
prevent his actions from causing damage to another, although
he has not succeeded in doing so, notwithstanding his efforts,
is the victim of an accident, and cannot be considered
responsible for the same." (Vol. 2, p. 127 [153].)
"Temerario is, in our opinion, one who omits, with regard to his
actions, which are liable to cause injury to another, that care
and diligence, that attention, which can be required of the least
careful, attentive, or diligent. If a moments attention and
reflection would have shown a person that the act which he was
about to perform was liable to have the harmful consequence
which it had, such person acted with temerity and may be guilty
of imprudencia temeraria." It may be that in practice this idea
has been given a greater scope and acts of imprudence which
did not show carelessness as carried to such a high degree,
might have been punished as imprudencia temeraria; but in
our opinion, the proper meaning of the word does not authorize
another interpretation." (Id., p 133 [161].)
Groizard, commenting upon "imprudencia temeraria," on page
389, volume 8, of his work on the Penal Code,
says:jgc:chanrobles.com.ph
"Prudence is that cardinal virtue which teaches us to discern
and distinguish the good from the bad, in order to adopt or to
flee from it. It also means good judgment, temperance, and
moderation in ones action.
Temerario without reflection and without examining the same.
Consequently, he who from lack of good judgment,
temperance, or moderation in his action, exposes himself
without reflection and examination to the danger of committing
a crime, must be held responsible under the provision of law
aforementioned."cralaw virtua1aw library
Negligence is want of the care required by the circumstances.
It is a relative or comparative, not an absolute, term and its
application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances
reasonably require. Where the danger is great, a high degree
of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances. (Ahern v. Oregon
Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)
Ordinary care, if the danger is great, may rise to the grade of
a very exact and unchangeable attention. (Parry Mfg. Co. v.
Eaton, 41 Ind. App., 81, 1908; 83 N. E., 510.)
In the case of U. S. v. Reyes (1 Phil. Rep., 375-377), we held
that: "The diligence with which the law requires the individual
at all times to govern his conduct varies with the nature of the
situation in which he is placed and with the importance of the
act which he is to perform."cralaw virtua1aw library
The question to be determined then, is whether, under all the
circumstances, and having in mind the situation of the
defendant when he put his car in motion and ran it over the
child, he was guilty of a failure to take such precautions or
advance measures as common prudence would suggest.
The evidence shows that the thoroughfare on which the
incident occurred was a public street in a densely
populated section of the city. The hour was six in the
morning, or about the time when the residents of such
streets begin to move about. Under such conditions a
motorman of an electric street car was clearly charged
with a high degree of diligence in the performance of his
duties. He was bound to know and to recognize that any
negligence on his part in observing the track over which
he was running his car might result in fatal accidents. He
had no right to assume that the track before his car was
clear. It was his duty to satisfy himself of that fact by
keeping a sharp lookout, and to do everything in his power
to avoid the danger which is necessarily incident to the
operation of heavy street cars on public thoroughfares in
populous sections of the city.
Did he exercise the degree of diligence required of him? We
think this question must be answered in the negative. We do
not go so far as to say that having brought his car to a standstill
it was his bounden duty to keep his eyes directed to the front.
Indeed, in the absence of some regulation of his employers, we
can well understand that, at times, it might be highly proper and
prudent for him to gland back before again setting his car in
motion, to satisfy himself that he understood correctly a signal
to go forward or that all the passengers had safely alighted or
gotten on board. But we do insist that before setting his car
again in motion, it was his duty to satisfy himself that the track
was clear, and, for that purpose, to look and to see the track
just in front of his car. This the defendant did not do, and the
result of his negligence was the death of the child.
In the case of Smith v. St. Paul City Ry. Co., (32 Min., p. 1), the
supreme court of Minnesota, in discussing the diligence
required of street railway companies in the conduct of their
business observed that: "The defendant was a carrier of
passengers for hire, owning and controlling the tracks and cars
operated thereon. It is therefore subject to the rules applicable
to passenger carriers. (Thompsons Carriers, 442; Barrett v.
Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) , 205.) As
respects hazards and dangers incident to the business or
employment, the law enjoins upon such carrier the highest
degree of care consistent with its undertaking, and it is
responsible for the slightest negligence. (Wilson v. Northern
Pacific R. Co., 26 minn., 278; Warren v. Fitchburg R. Co., 8
Allen, 233; 43 Am. Dec. 354, 356, notes and cases.) . . . The
severe rule which enjoins upon the carrier such extraordinary
care and diligence, is intended, for reasons of public policy, to
secure the safe carriage of passengers, in so far as human skill
and foresight can affect such result." The case just cited was a
civil case, and the doctrine therein announced d especial
reference to the care which should be exercised in securing the
safety of passengers. But we hold that the reasons of public
policy which imposed upon street car companies and their
employees the duty of exercising the utmost degree of
diligence in securing the safety of passengers, apply with equal
force to the duty of avoiding the infliction of injuries upon
pedestrians and others on the public streets and thoroughfares
over which these companies are authorized to run their cars.
And while, in a criminal case, the courts will require proof of the
guilt of the company or its employees beyond a reasonable
doubt, nevertheless the care or diligence required of the
company and its employees is the same in both cases, and the
only question to be determined is whether the proof shows
beyond a reasonable doubt that the failure to exercise such
care or diligence was the cause of the accident, and that the
defendant was guilty thereof.
Counsel for the defendant insist that the accident might have
happened despite the exercise of the utmost care by the
defendant, and they have introduced photographs into the
record for the purpose of proving that while the motorman was
standing in his proper place on the front platform of the car, a
child might have walked up immediately in front of the car, a
child might have walked up immediately in front of the car
without coming within the line of his vision. Examining the
photographs, we think that this contention may have some
foundation in fact; but only to this extent, that standing erect, at
the position he would ordinarily assume while the car is in
motion, the eye of the average motorman might just miss
seeing the top of the head of a child, about three years old,
standing or walking close up to the front of the car. But it is also
very evident that by inclining the head and shoulders forward
very slightly, and glancing in front of the car, a person in the
position of a motorman could not fail to see a child on the track
immediately in front of his car; and we hold that it is the manifest
duty of a motorman, who is about to start his car on a public
thoroughfare in a thickly-settled district, to satisfy himself that
the track is clear immediately in front of his car, a person in the
position of a motorman could not fail to see a child on the track
immediately in front of his car; and we hold that it is the manifest
duty of a motorman, who is about to start his car on a public
thoroughfare in a thickly-settled district, to satisfy himself that
the track is clear immediately in front of his car, and to incline
his body slightly forward, if that be necessary, in order to bring
the whole track within his line of vision. Of course, this may not
be, and usually is not necessary when the car is in motion, but
we think that it is required by the dictates of the most ordinary
prudence in starting from a standstill.
We are not unmindful of our remarks in the case of U. S. v.
Bacho (10 Phil. Rep., 577), to which our attention is directed by
counsel for Appellant. In that case we said
that:jgc:chanrobles.com.ph
". . . In the general experience of mankind, accidents apparently
unavoidable and often inexplicable are unfortunately too
frequent to permit us to conclude that some one must be
criminally liable for negligence in every case where an accident
occurs. it is the duty of the prosecution in each case to prove
by competent evidence not only the existence of criminal
negligence, but that the accused was guilty thereof."cralaw
virtua1aw library
Nor do we overlook the ruling in the case of U. S. v. Barnes (12
Phil. Rep., 93), to which our attention is also invited, wherein
we held that the defendant was not guilty of reckless
negligence, where it appeared that he killed another by the
discharge of his gun under such circumstances that he might
have been held guilty of criminally reckless negligence had he
had knowledge at that moment that another person was in such
position as to be in danger if the gun should be discharged. In
this latter case the defendant had no reason to anticipate that
the person who was injured was in the line of fire, or that there
was any probability that he or anyone else would place himself
in the line of fire. In the case at bar, however, it was, as we
have seen, the manifest duty of the motorman to take
reasonable precautions in starting his car to see that in
doing so he was not endangering the life of any
pedestrian, old or young; and to this end it was further his
duty to guard against the reasonable possibility that some
one might be on the evidence showing, is it does, that the
child was killed at the moment when the car was set in
motion, we are justified in holding that, had the motorman
seen the child, he could have avoided the accident; the
accident was not, therefore, "unavoidable or inexplicable,"
and it appearing that the motorman, by the exercise of
ordinary diligence, might have seen the child before he set
the car in motion, his failure to satisfy himself that the
track was clear before doing so was reckless negligence,
of which he was properly convicted in the court below.
We think, however, that the penalty should be reduced to that
of six months and one day of prision correccional. Modified by
substituting for so much thereof as imposes the penalty of one
year and one month of imprisonment, the penalty of six months
and one day of prision correccional, the judgment of the lower
court convicting and sentencing the appellant is affirmed, with
the costs of both instances against him. So ordered.
YU vs CA
Petitioner: Hedy Gan y Yu
Respondent: CA, People of the Philippines
Citation: GR L-44264
Date of Promulgation: Sept. 19, 1988
Ponente: Fernan
FACTS:
In the morning of July 4, 1972 at about 8:00 o'clock:
the accused Hedy Gan was driving a Toyota car along
North Bay Boulevard, Tondo, Manila.
While in front of house no. 694 of North Bay
Boulevard, there were two vehicles, a truck and a jeepney
parked on one side of the road, one following the other
about two to three meters from each other.
As the car driven by the accused approached the place
where the two vehicles were parked, there was a vehicle
coming from the opposite direction, followed by another
which tried to overtake and bypass the one in front of it
and thereby encroached the lane of the car driven by the
accused.
To avoid a head-on collision with the oncoming
vehicle, the defendant swerved to the right and as a
consequence, the front bumper of the Toyota Crown
Sedan hit an old man who was about to cross the
boulevard from south to north, pinning him against the rear
of the parked jeepney.
The force of the impact caused the parked jeepney to
move forward hitting the rear of the parts truck ahead of it.
The pedestrian was injured, the Toyota Sedan was
damaged on its front, the jeep suffered damages on its
rear and front paints, and the truck sustained scratches at
the wooden portion of its rear.
The body of the old man who was later Identified as
Isidoro Casino was immediately brought to the Jose
Reyes Memorial Hospital but was (pronounced) dead on
arrival.
Information for Reckless Imprudence was filed; she
entered a not guilty plea upon arraignment and the case
was set for trial
Petitioner: sought for reinvestigation, and it was granted
by the City Fiscal
Sept. 7, 1972: The trial fiscal moved for the dismissal of
the case against petitioner for lack of interest on the part
of the complaining witness to prosecute the case as
evidence by an Affidavit of Desistance, and lack of
eyewitness to sustain the charge
MTD filed by the fiscal was never resolved
Prosecution: was still ordered to present its case
After the prosecution rested its case, Petitioner filed a
Motion to Dismiss on the ground of insufficiency of
evidence
 Trial Court: found the petitioner guilty beyond reasonable
ground
CA: guilty of Homicide through Reckless Imprudence pa
rin
ISSUE: W/N petitioner is guilty of the offense charged?
HELD:
NO.
We reverse.
The test for determining whether or not a person is negligent in
doing an act whereby injury or damage results to the person or
property of another is this: Would a prudent man in the position
of the person to whom negligence is attributed foresee harm to
the person injured as a reasonable consequence of the course
about to be pursued? If so, the law imposes the duty oil the
doer to take precaution against its mischievous results and the
failure to do so constitutes negligence. 5
A corollary rule is what is known in the law as the
emergency rule. "Under that rule, one who suddenly finds
himself in a place of danger, and is required to act without time
to consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to adopt
what subsequently and upon reflection may appear to have
been a better method, unless the emergency in which he finds
himself is brought about by his own negligence." 6
Applying the above test to the case at bar, we find the petitioner
not guilty of the crime of Simple Imprudence resulting in
Homicide.
The appellate court in finding the petitioner guilty said:
The accused should have stepped on the brakes
when she saw the car going in the opposite direction
followed by another which overtook the first by
passing towards its left. She should not only have
swerved the car she was driving to the right but
should have also tried to stop or lessen her speed so
that she would not bump into the pedestrian who was
crossing at the time but also the jeepney which was
then parked along the street. 7
The course of action suggested by the appellate court would
seem reasonable were it not for the fact that such suggestion
did not take into account the amount of time afforded petitioner
to react to the situation she was in. For it is undeniable that the
suggested course of action presupposes sufficient time for
appellant to analyze the situation confronting her and to ponder
on which of the different courses of action would result in the
least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was
presented by the prosecution with respect to the relative
distances of petitioner to the parked jeepney and the
oncoming overtaking vehicle that would tend to prove that
petitioner did have sufficient time to reflect on the
consequences of her instant decision to swerve her car to
the light without stepping on her brakes. In fact, the
evidence presented by the prosecution on this point is the
petitioner's statement to the police 8 stating::
And masasabi ko lang ho umiwas ho ako sa
isang sasakyan na biglang nagovertake sa
sasakyan na aking kasalubong kung kaya
ay aking kinabig sa kanan ang akin kotse
subalit siya naman biglangpagtawid ng tao
o victim at hindi ko na ho naiwasan at ako
ay wala ng magawa . Iyan ho ang buong
pangyayari nang nasabing
aksidente.9 (Emphasis supplied)
The prosecution having presented this exhibit as its own
evidence, we cannot but deem its veracity to have been
admitted by it. Thus, under the circumstances narrated by
petitioner, we find that the appellate court is asking too
much from a mere mortal like the petitioner who in the
blink of an eye had to exercise her best judgment to
extricate herself from a difficult and dangerous situation
caused by the driver of the overtaking vehicle. Petitioner
certainly could not be expected to act with all the coolness
of a person under normal conditions. 10 The danger
confronting petitioner was real and imminent, threatening
her very existence. She had no opportunity for rational
thinking but only enough time to heed the very powerful
instinct of self-preservation.
Also, the respondent court itself pronounced that the petitioner
was driving her car within the legal limits. We therefore rule that
the "emergency rule" enunciated above applies with full
force to the case at bar and consequently absolve
petitioner from any criminal negligence in connection with
the incident under consideration.
We further set aside the award of damages to the heirs of the
victim, who by executing a release of the claim due them, had
effectively and clearly waived their right thereto.
WHEREFORE, judgment is hereby rendered acquitting
petitioner HEDY GAN y YU of the crime of Homicide thru
Simple Imprudence. She is no longer liable for the P12,000.00
civil indemnity awarded by the appellate court to the heirs of
the victim.
SO ORDERED.
PICART V SMITH
PLAINTIFF: Amado Picart
DEFENDANT: Frank Smith, Jr.
DOCKET NO.: GR No. L-12219
DATE: March 15, 1918
PONENTE: Street, J.
FACTS:
On December 12, 1912, Carlatan Bridge at Sa Fernando,
La Union
o Plaintiff Amado Picart was riding his pony (as in
baby horse) over the said bridge. Before he had
gotten half way across, the defendant Frank Smith,
Jr. approached from the opposite direction in an
automobile, going at the rate of about ten or twelve
miles per hour.
o As Smith neared the bridge he saw a horseman on
it and blew his horn to give warning of his approach.
He continued his course and after he had taken the
bridge he gave two more successive blasts, as it
appeared to him that the man on horseback before
him was not observing the rule of the road.
o Picart, it appears, saw the automobile coming and
heard the warning signals. However, being disturbed
by the rapidity of the approach, he pulled the pony
closely up against the railing on the right side of the
bridge instead of going to the left.
o He says that the reason he did this was that he
thought he did not have sufficient time to get over to
the other side.
o The bridge is shown to have a length of about 75
meters and a width of 4.80 meters.
o As the automobile approached, Smith guided it
toward his left, that being the proper side of the road
for the machine. In so doing Smith assumed that
Picart would move to the other side.
o Seeing that the pony was apparently quiet, Smith,
instead of veering to the right while yet some
distance away or slowing down, continued to
approach directly toward the horse without
diminution of speed. When he had gotten quite near,
there being then no possibility of the horse getting
across to the other side, Smith quickly turned his car
sufficiently to the right to escape hitting the horse
alongside of the railing where it as then standing; but
in so doing the automobile passed in such close
proximity to the animal that it became frightened and
turned its body across the bridge with its head
toward the railing.
o In so doing, it was struck on the hock of the left hind
leg by the flange of the car and the limb was broken.
The horse fell and Picart was thrown off with some
violence.
o As a result of its injuries the horse died. Picart
received contusions which caused temporary
 unconsciousness and required medical attention for
several days.
ISSUE: WON the defendant Smith, in maneuvering his car
in the manner above described in the facts, was guilty of
negligence such as gives rise to a civil obligation to repair
the damage done
HELD:
o YES.
o As Smith started across the bridge, he had the
right to assume that the horse and the rider
(Picart) would pass over to the proper side; but
as he moved toward the center of the bridge
it was demonstrated to his eyes that this would
not be done; and he must in a moment have
perceived that it was too late for the horse to
cross with safety in front of the moving vehicle.
In the nature of things this change of situation
occurred while the automobile was yet some
distance away; and from this moment it was not
longer within the power of Picart to escape being
run down by going to a place of greater safety.
o The control of the situation had then passed
entirely to the Smith; and it was his duty
either to bring his car to an immediate stop
or, seeing that there were no other persons
on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid
the danger of collision. Instead of doing this,
Smith ran straight on until he was almost
upon the horse.
o He was, we think, deceived into doing this by the
fact that the horse had not yet exhibited fright.
But in view of the known nature of horses, there
was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he
might get exited and jump under the conditions
which here confronted him. When Smith
exposed the horse and rider to this danger
he was, in our opinion, negligent in the eye
of the law.
o The test by which to determine the existence of
negligence in a particular case may be stated as
follows:
Did the defendant in doing the alleged
negligent act use that person would
have used in the same situation? If not,
then he is guilty of negligence.
o The law here in effect adopts the standard
supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a
given case is not determined by reference to the
personal judgment of the actor in the situation
before him. The law considers what would be
reckless, blameworthy, or negligent in the man
of ordinary intelligence and prudence and
determines liability by that.
o The question as to what would constitute the
conduct of a prudent man in a given situation
must of course be always determined in the light
of human experience and in view of the facts
involved in the particular case. Abstract
speculations cannot here be of much value 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
take care 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 duty of the actor to take
precautions to guard against that harm.
Reasonable foresight of harm, followed by
ignoring of the suggestion born of this prevision,
is always necessary before negligence can be
held to exist. Stated in these terms, the proper
criterion for determining the existence of
negligence in a given case 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 to warrant his foregoing conduct or
guarding against its consequences.
o Applying this test to the conduct of the
defendant in the present case we think that
negligence is clearly established. A prudent
man, placed in the position of the defendant,
would in our opinion, have recognized that the
course which he was pursuing was fraught with
risk, and would therefore have foreseen harm to
the horse and the rider as reasonable
consequence of that course. Under these
circumstances the law imposed on the
defendant the duty to guard against the
threatened harm.
o It goes without saying that the plaintiff himself
was not free from fault, for he was guilty of
antecedent negligence in planting himself on the
wrong side of the road. But as we have already
stated, the defendant was also negligent; and in
such case the problem always is to discover
which agent is immediately and directly
responsible. It will be noted that the negligent
acts of the two parties were not
contemporaneous, since the negligence of the
defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these
circumstances the law is that the person who
has the last fair chance to avoid the
impending harm and fails to do so is
chargeable with the consequences, without
reference to the prior negligence of the other
party.
o From what has been said it results that the
judgment of the lower court must be reversed,
and judgment is her rendered that the plaintiff
recover of the defendant the sum of two
hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated
to include the value of the horse, medical
expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful
interest on the whole to the date of this recovery.
The other damages claimed by the plaintiff are
remote or otherwise of such character as not to
be recoverable. So ordered.
DAMAGES
Damages
- recompense, satisfaction
- an award, typically of money, to be paid to a person
as compensation for loss or injury
PING BUN V CA
PETITIONER: So Ping Bun
RESPONDENT: Court of Appeals
Tek Hua Enterprises Corp.
Manuel C. Tiong
DOCKET: GR No. 120554
DATE: Sept. 21, 1999
PONENTE: Quisumbing, J.
FACTS:
In 1963, Tek Hua Trading Co, through its managing
partner, So Pek Giok, entered into lease agreements with
lessor Dee C. Chuan & Sons Inc. (DCCSI).
Subjects of four (4) lease contracts were premises located
at Nos. 930, 930-Int., 924-B and 924-C, Soler Street,
Binondo, Manila. The contracts each had a one-year term.
They provided that should the lessee continue to occupy
the premises after the term, the lease shall be on a month-
to-month basis.
When the contracts expired, the parties did not renew the
contracts, but Tek Hua continued to occupy the premises.
In 1976, Tek Hua Trading Co. was dissolved. Later, the
original members of Tek Hua Trading Co. including
Manuel C. Tiong, formed Tek Hua Enterprising Corp.,
herein respondent corporation.
So Pek Giok, managing partner of Tek Hua Trading, died
in 1986. So Pek Giok's grandson, petitioner So Ping Bun,
occupied the warehouse for his own textile business,
Trendsetter Marketing.
 On August 1, 1989, lessor DCCSI sent letters addressed
to Tek Hua Enterprises, informing the latter of the 25%
increase in rent effective September 1, 1989.
o The rent increase was later on reduced to 20%
effective January 1, 1990, upon other lessees'
demand.
o Again on December 1, 1990, the lessor
implemented a 30% rent increase. Enclosed in
these letters were new lease contracts for
signing. DCCSI warned that failure of the lessee
to accomplish the contracts shall be deemed as
lack of interest on the lessee's part, and
agreement to the termination of the lease.
o Private respondents did not answer any of these
letters. Still, the lease contracts were not
rescinded.
On March 1, 1991, private respondent Manuel Tiong
sent a letter to the petitioner:
Due to my closed (sic) business associate (sic)
for three decades with your late grandfather Mr.
So Pek Giok and late father, Mr. So Chong Bon,
I allowed you temporarily to use the warehouse
of Tek Hua Enterprising Corp. for several years
to generate your personal business.
Since I decided to go back into textile business,
I need a warehouse immediately for my stocks.
Therefore, please be advised to vacate all your
stocks in Tek Hua Enterprising Corp.
Warehouse. You are hereby given 14 days to
vacate the premises unless you have good
reasons that you have the right to stay.
Otherwise, I will be constrained to take measure
to protect my interest.
Please give this urgent matter your preferential
attention to avoid inconvenience on your part.
Petitioner refused to vacate. On March 4, 1992,
petitioner requested formal contracts of lease with DCCSI
in favor Trendsetter Marketing. So Ping Bun claimed that
after the death of his grandfather, So Pek Giok, he had
been occupying the premises for his textile business and
religiously paid rent. DCCSI acceded to petitioner's
request. The lease contracts in favor of Trendsetter were
executed.
In the suit for injunction, private respondents pressed for
the nullification of the lease contracts between DCCSI and
petitioner. They also claimed damages.
RTC:
o Annulled the four Contracts of Lease
o Ordered defendant So Ping Bun to pay the
aggrieved party, plaintiff Tek Hua Enterprising
Corporation, the sum of P500,000.00, for
attorney's fees
o Dismissed the complaint, insofar as plaintiff
Manuel C. Tiong is concerned, and the
respective counterclaims of the defendant
o Ordered defendant So Ping Bun to pay the costs
of this lawsuit
CA: UPHELD THE RTC RULING. On motion for
reconsideration, the appellate court modified the decision
by reducing the award of attorney's fees from five hundred
thousand (P500,000.00) pesos to two hundred thousand
(P200,000.00) pesos.
ISSUE: WON So Ping Bun is guilty of tortuous inference
of a contract
HELD:
o The elements of tort interference are:
(1) existence of a valid contract;
(2) knowledge on the part of the third
person of the existence of contract;
and
(3) interference of the third person is
without legal justification or excuse.
o A duty which the law of torts is concerned with is
respect for the property of others, and a cause
of action ex delicto may be predicated upon an
unlawful interference by one person of the
enjoyment by the other of his private property.
This may pertain to a situation where a third
person induces a party to renege on or violate
his undertaking under a contract. In the case
before us, petitioner's Trendsetter Marketing
asked DCCSI to execute lease contracts in its
favor, and as a result petitioner deprived
respondent corporation of the latter's property
right. Clearly, and as correctly viewed by the
appellate court, the three elements of tort
interference above-mentioned are present in the
instant case.
o In the instant case, it is clear that petitioner So
Ping Bun prevailed upon DCCSI to lease the
warehouse to his enterprise at the expense of
respondent corporation. Though petitioner took
interest in the property of respondent
corporation and benefited from it, nothing on
record imputes deliberate wrongful motives or
malice on him.
o While we do not encourage tort interferers
seeking their economic interest to intrude into
existing contracts at the expense of others,
however, we find that the conduct herein
complained of did not transcend the limits
forbidding an obligatory award for damages in
the absence of any malice. The business desire
is there to make some gain to the detriment of
the contracting parties. Lack of malice, however,
precludes damages. But it does not relieve
petitioner of the legal liability for entering into
contracts and causing breach of existing ones.
The respondent appellate court correctly
confirmed the permanent injunction and
nullification of the lease contracts between
DCCSI and Trendsetter Marketing, without
awarding damages. The injunction saved the
respondents from further damage or injury
caused by petitioner's interference.
o Lastly, the recovery of attorney's fees in the
concept of actual or compensatory damages, is
allowed under the circumstances provided for in
Article 2208 of the Civil Code. One such
occasion is when the defendant's act or
omission has compelled the plaintiff to litigate
with third persons or to incur expenses to protect
his interest. But we have consistently held that
the award of considerable damages should have
clear factual and legal bases. In connection with
attorney's fees, the award should be
commensurate to the benefits that would have
been derived from a favorable judgment. Settled
is the rule that fairness of the award of damages
by the trial court calls for appellate review such
that the award if far too excessive can be
reduced.
o This ruling applies with equal force on the award
of attorney's fees. In a long line of cases we said,
It is not sound policy to place in penalty on the
right to litigate. To compel the defeated party to
pay the fees of counsel for his successful
opponent would throw wide open the door of
temptation to the opposing party and his counsel
to swell the fees to undue proportions.
o Considering that the respondent corporation's
lease contract, at the time when the cause of
action accrued, ran only on a month-to-month
basis whence before it was on a yearly basis, we
find even the reduced amount of attorney's fees
ordered by the Court of Appeals still exorbitant
in the light of prevailing jurisprudence.
Consequently, the amount of two hundred
thousand (P200,000.00) awarded by
respondent appellate court should be
reduced to one hundred thousand
(P100,000.00) pesos as the reasonable award
or attorney's fees in favor of private
respondent corporation.
o WHEREFORE, the petition is hereby DENIED.
The assailed Decision and Resolution of the
Court of Appeals in CA-G.R. CV No. 38784 are
hereby AFFIRMED, with MODIFICATION that
the award of attorney's fees is reduced from
two hundred thousand (P200,000.00) to one
hundred thousand (P100,000.00) pesos. No
pronouncement as to costs.
PHOENIX CONSTRUCTION V IAC
PETITIONERS: Phoenix Construction, Inc.
Armando U. Carbonel
RESPONDENTS: Intermediate Appellate Court
Leonardo Dionisio
DOCKET: GR No. L-65295
DATE: March 10, 1987
PONENTE: Feliciano, J
FACTS:
In the early morning of 15 November 1975 at about 1:30
a.m.
o private respondent Leonardo Dionisio was on
his way home he lived in 1214-B Zamora
Street, Bangkal, Makati from a cocktails-and-
dinner meeting with his boss, the general
manager of a marketing corporation.
o During the cocktails phase of the evening,
Dionisio had taken "a shot or two" of liquor.
o Dionisio was driving his Volkswagen car and had
just crossed the intersection of General Lacuna
and General Santos Streets at Bangkal, Makati,
not far from his home, and was proceeding down
General Lacuna Street, when his car headlights
(in his allegation) suddenly failed. He switched
his headlights on "bright" and thereupon he saw
a Ford dump truck looming some 2-1/2 meters
away from his car.
o 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 hand
side of a person facing in the same direction
toward which Dionisio's car was proceeding),
facing the oncoming traffic. The dump truck was
parked askew (not parallel to the street curb) in
such a manner as to stick out onto the street,
partly blocking the way of oncoming traffic.
There were no lights nor any so-called "early
warning" reflector devices set anywhere near the
dump truck, front or rear.
o 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 but it
was too late and his car smashed into the dump
truck.
o As a result of the collision, Dionisio suffered
some physical injuries including some
permanent facial scars, a "nervous breakdown"
and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court
of First Instance of Pampanga basically claiming that the
legal and proximate cause of his injuries was the negligent
manner in which Carbonel had parked the dump truck
entrusted to him by his employer Phoenix.
o COUNTER: Phoenix and Carbonel, on the other
hand, countered that the proximate cause of
Dionisio's injuries was his own recklessness in
driving fast at the time of the accident, while
under the influence of liquor, without his
headlights on and without a curfew pass.
o Phoenix also sought to establish that it had
exercised due rare in the selection and
supervision of the dump truck driver.
TRIAL COURT: in favour of Dionisio, and against Phoenix
and Carbonel.
o 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
o 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
o To pay the plaintiff jointly and severally the sum
of P 10,000. as moral damages for the
unexpected and sudden withdrawal of plaintiff
from his lifetime career as a marketing man;
mental anguish, wounded feeling, 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 in controversy up to the present time
o 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.
o To pay the plaintiff jointly and severally the sum
of P 4,500.00 due as and for attorney's fees
o The cost of suit.
COURT OF APPEALS: affirmed the RTC decision but
modified the award of damages
o The award of P15,000.00 as compensatory
damages was reduced to P6,460.71, the latter
being the only amount that the appellate court
found the plaintiff to have proved as actually
sustained by him
o The award of P150,000.00 as loss of expected
income was reduced to P100,000.00, basically
because Dionisio had voluntarily resigned his
job such that, in the opinion of the appellate
court, his loss of income was not solely
attributable to the accident in question
o The award of P100,000.00 as moral damages
was held by the appellate court as excessive
and unconscionable and hence reduced to
P50,000.00
o The award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees and
costs remained untouched.
We note, however, that both courts failed to pass upon the
defense raised by Carbonel and Phoenix that the true
legal and proximate cause of the accident was not the way
in which the dump truck had been parked but rather the
reckless way in which Dionisio had driven his car that night
when he smashed into the dump truck.
ISSUE: WON the collision was brought by respondents
own negligence
HELD:
o We agree with the Court of First Instance and
the Intermediate Appellate Court that the legal
and proximate cause of the accident and of
Dionisio's injuries was the wrongful or
negligent manner in which the dump truck was
parked 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 in a slightly different
manner, the collision of Dionisio's car with the
dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
o The petitioners, however, urge that the truck
driver's negligence was merely a "passive and
static condition" and that private 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. We note
that the petitioners' arguments are drawn from a
reading of some of the older cases in various
jurisdictions in the United States but we are
unable to persuade ourselves that these
arguments have any validity for our jurisdiction.
o We believe, secondly, that the truck driver's
negligence far from being a "passive and static
condition" was rather an indispensable 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 Lacuna Street and for having so
created this risk, the truck driver must be held
responsible. In our view, Dionisio's negligence,
although later in point of time than the truck
driver's negligence and therefore closer to the
accident, was not an efficient intervening or
independent cause. What the Petitioners
describe as an "intervening cause" was no more
 than a foreseeable consequent manner which
the truck driver had parked the dump truck. In
other words, the petitioner truck driver owed a
duty to private respondent Dionisio and others
similarly situated not to impose upon them the
very risk the truck 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 juris vinculum of liability.
o 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).
o Is there perhaps a general concept of "last clear
chance" that may be extracted from its common
law matrix and utilized as 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 or proximate
cause of the injury. That task is not simply or
even primarily an exercise in chronology or
physics, as the petitioners seem to imply by the
use of terms like "last" or "intervening" or
"immediate." The relative location in the
continuum of time of the plaintiff's and the
defendant's negligent acts or omissions, is only
one of the relevant factors that may be taken into
account. Of more fundamental importance are
the nature of the negligent act or omission of
each party and the character and gravity of the
risks created by such act or omission for the rest
of the community. The petitioners urge that the
truck driver (and therefore his employer) should
be absolved from responsibility for his own prior
negligence because the unfortunate plaintiff
failed to act with that increased diligence which
had become necessary to avoid the peril
precisely created by the truck driver's own
wrongful act or omission.
To accept this proposition is to come
too close to wiping out the fundamental
principle of law that a man must
respond for the forseeable
consequences of his own negligent act
or omission. Our law on quasi-delicts
seeks to reduce the risks and burdens
of living in society and to allocate them
among the members of society. To
accept the petitioners' pro-position
must tend to weaken the very bonds of
society.
o Petitioner Carbonel's proven negligence creates
a presumption of negligence on the part of his
employer Phoenix in supervising 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 had allowed its truck
driver to bring the dump truck to his home
whenever there was work to be done early the
following morning, when coupled with the failure
to show any effort on the part of Phoenix to
supervise the manner in which the dump truck is
parked when away from company premises, is
an affirmative showing of culpa in vigilando on
the part of Phoenix.
o 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, 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 the respondent appellate court,
except the award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees
and costs, shall be borne by private
respondent Dionisio; only the balance of
80% needs to be paid by petitioners Carbonel
and Phoenix who shall be solidarity liable
therefor to the former. The award of exemplary
damages and attorney's fees and costs shall be
borne exclusively by the petitioners. Phoenix is
of course entitled to reimbursement from
Carbonel. We see no sufficient reason for
disturbing the reduced award of damages made
by the respondent appellate court.
BERNAL V J.V. HOUSE
PLAINTIFF: Tomas Bernal
Fortunata Enverso
DEFENDANT: J.V. House
Tacloban Electric and Ice Plant, Ltd.
DOCKET: GR No. L-30741
DATE: January 30, 1930
PONENTE: Malcolm, J
FACTS:
On the evening of April 10, 1925, the procession of Holy
Friday was held in Tacloban, Leyte.
Fortunata Enverso with her daughter Purificacion Bernal
came from another municipality to attend the religious
celebration. After the procession was over, the woman
and her daughter, accompanied by two other persons by
the names of Fausto and Elias, passed along a public
street named Gran Capitan. The little girl was allowed to
get a short distance in advance of her mother and her
friends.
When in front of the offices of the Tacloban Electric & Ice
Plant, Ltd., and automobile appeared from the opposite
direction which so frightened the child that she turned to
run, with the result that she fell into the street gutter. At
that time there was hot water in this gutter or ditch coming
from the Electric Ice Plant of J.V. House.
When the mother and her companions reached the child,
they found her face downward in the hot water. Her
clothes were immediately removed and, then covered with
a garment, the girl was taken to the provincial hospital.
There she was attended by the resident physician, Dr.
Victoriano A. Benitez. Despite his efforts, the child died
that same night at 11:40 o'clock.
Dr. Benitez, who, of course, was in a better position than
any one to know the cause of the death, and who had no
reason to depart from the true facts, certified that the
cause of death was "Burns, 3rd Degree, whole Body", and
that the contributory causes were "Congestion of the Brain
and visceras of the chest & abdomen".
DEFENSE OF TACLOBAN ELECTRIC AND ICE PLANT:
o the hot water was permitted to flow down the
side of the street Gran Captain with the
knowledge and consent of the authorities
o that the cause of death was other than the hot
water
o that in the death, the plaintiffs contributed by
their own fault and negligence
TRIAL JUDGE:
o after examination of the evidence presented by
the defendants, failed to sustain their theory of
the case, except as to the last mentioned
special defense.
ISSUE: WON the respondent is absolved from liability
because of the contributory negligence of the plaintiffs
SUPREME COURT RULING:
o The mother and her child had a perfect right to
be on the principal street of Tacloban, Leyte, on
the evening when the religious procession was
held. There was nothing abnormal in allowing
the child to run along a few paces in advance of
the mother. No one could foresee the
coincidence of an automobile appearing and of
a frightened child running and falling into a ditch
filled with hot water.
o The contributory negligence of the child and
her mother, if any, does not operate as a bar
to recovery, but in its strictest sense could
only result in reduction of the damages.
o Having reached the conclusion that liability
exists, we next turn to discover who can recover
 damages for the obligation, and against whom
the action will lie.
The plaintiffs are Tomas Bernal and
Fortunata Enverso. The latter was the
mother of Purificacion Bernal and the
former was the natural father, who had
never legally recognized his child. The
daughter lived with the mother, and
presumably was supported by her.
Under these facts, recovery should be
permitted the mother but not the father.
As to the defendants, they are J.V.
House and the Tacloban Electric & Ice
Plant, Ltd., J.V. House was granted a
franchise by Act No. 2700 of the
Philippine Legislature approved on
March 9, 1917. He only transferred this
franchise formally to the Tacloban
Electric & Ice Plant, Ltd. on March 30,
1926, that is, nearly a year after the
death of the child Purificacion Bernal.
Under these facts, J.V. House is solely
responsible.
o There is not enough money in the entire world to
compensate a mother for the death of her child.
In criminal cases, the rule has been to allow as
a matter of course P1,000 as indemnity to the
heirs of the deceased. In the case of
Manzanares vs. Moreta ([1918], 38 Phil., 821),
which in many respects is on all fours with the
case at bar, the same amount of P1,000 was
allowed the mother of the dead boy eight or nine
years of age. The same criterion will have to be
followed in this instance.
o The result will, therefore, be to accept the
findings of fact made by the trial judge:
to set aside the legal deductions
flowing from those facts;
to hold that the death of the child
Purificacion Bernal was the result of
fault and negligence in permitting hot
water to flow through the public
streets, there to endanger the lives of
passers-by who were unfortunately
enough to fall into it;
to rule that the proper plaintiff is the
mother Fortunata Enverso and not the
natural father Tomas Bernal;
to likewise rule that the person
responsible to the plaintiff is J.V.
House and not the entity the Tacloban
Electric & Ice Plant, Ltd.;
and finally to adjudge that the amount
of recovery, without the tendering of
special proof, should be fixed, as in
other cases, at P1,000.
o Concordant with the pronouncements just
made, the judgment appealed from shall in
part be reversed and in the court of origin
another judgment shall issue in favor of
Fortunata Enverso and against J.V. House
for the amount of P1,000, and for the costs of
both instances.
JARCO MARKETING VS. CA
PETITIONERS: JARCO MARKETING CORPORATION,
LEONARDO KONG, JOSE TIOPE and ELISA PANELO
RESPONDENTS: HONORABLE COURT OF APPEALS,
CONRADO C. AGUILAR and CRISELDA R. AGUILAR
G.R. No.
129792.
December 21, 1999
DAVIDE, JR., C.J.:
FACTS:
*Jarco Marketing owns Syvels Department Store; Kong, Tiope,
and Panelo are store managers; Sps. Aguilar are the parents
of daughter Zhieneth.
Criselda and Zhieneth Aguilar (6 years old) were at the 2nd
floor of Syvels Department Store. Criselda was signing her
credit card slip when she felt a sudden gust of wind and heard
a loud thud. When she looked behind her, she saw her
daughter pinned by the bulk of the stores gift wrapping counter.
She asked the assistance of the people around her, and she
was immediately rushed to Makati Medical Center where she
was operated. The next day, she lost her speech. She died 14
days after the accident. The cause of her death was attributed
to the injuries sustained.
*After her burial, Sps. Aguilar demanded the reimbursement of
hospitalization, medical bills, and wake and funeral expenses
from the petitioners, but they refused to pay. Sps. Aguilar filed
a complaint for damages, seeking the payment of actual
[157k~] and moral [300k] damages, attorneys fees [20k], and
for loss of income and exemplary damages.
*The petitioners denied any liability for Zhieneths injuries and
death. They also said the complaint was malicious, so they
sought the dismissal of the complaint and an award of moral
and exemplary damages, as well as attorneys fees.
Criselda was negligent in exercising care and diligence over
her daughter by allowing her to freely roam around in a store
with glassware and appliances
Zhieneth was guilty of contributory negligence for climbing
the counter, thereby triggering its collapse
Counter was made of sturdy wood with strong support, and
it has never fell nor collapsed for the past 15 years since its
construction
Jarco Marketing maintained that it observed due diligence
of a good father of the family
Other petitioners raised due care and diligence in the
performance of its duties
RTC found that the preponderance of evidence favored the
store, et al, saying that the proximate cause was Zhieneths act
of clinging to the counter, and that Criseldas negligence
contributed to the accident. The RTC found that the counter
was not an attractive nuisance [something that would attract
children to approach, get on or use it], since the counter was
situated at the end or corner of the 2nd floor.
Here are the assertions of Sps. Aguilar:
Zhieneth should be entitled to the conclusive presumption
that a child below 9 is incapable of contributory negligence.
Even if she is capable of contributory negligence, it was
physically impossible for her to have propped herself on the
counter considering her small frame, and height and weight
of the counter.
The fact that a former employee of the store, Gonzales,
accompanied Zhieneth to the hospital belied the theory that
Zhieneth climbed the counter.
This employee Gonzales said that when Zhieneth was
asked by the doctor what she did, she said Nothing, I did
not come near the counter and the counter just fell on me.
This should be accorded credit according to the spouses.
Negligence could not be imputed to Criselda since it was
reasonable for her to let go of Zhieneth at that moment that
she was signing the credit card slip.
The proximate cause was petitioners negligence in failing
to institute measures to have the counter permanently
nailed.
In response, here is what the petitioners have to say:
Zhieneths death was an ACCIDENT.
 Nailing the counter to the ground was not necessary
because it has been there for the longest time without any
prior accident and its just in a corner.
The criminal case for homicide through simple negligence
filed against them was dismissed, and they were acquitted.
The CA reversed RTC, ruling in favor of Sps. Aguilar.
Petitioners were negligent in maintaining a structurally
dangerous counter [its shaped like an inverted L; the top is
wider than the base; weight of the upper portion not evenly
distributed nor supported by the narrow base]. Two former
employees brought this to the attention of the management
but the latter ignored their concern. CA said the incident
could have been avoided had petitioners repaired this
defective counter. The contention that it has been there for
a long time without a prior incident is immaterial.
Zhieneth was incapable of negligence or other tort.
Criselda was absolved of any negligence.
Testimony of Gonzales (former employee) given credit
Awarded actual damages, compensatory damages [denied
award of funeral expenses for lack of proof to substantiate
it]
CA denied petitioners MfR, so they are now seeking the
reversal of said decision, saying that since the action is based
on tort, any finding of negligence on the part of Sps. Aguilar
would negate their claim for damages, where said negligence
was the proximate cause of the injury sustained. They also
assailed the testimony of Gonzales who was already separated
from the store (tarnished by ill-feelings and all).
ISSUE: WON Zhieneths death was accidental or attributable
to negligence. ATTRIBUTABLE TO NEGLIGENCE
WON negligence was attributable to petitioners [for maintaining
a defective counter] or to Sps. Aguilar [for failing to exercise
due and reasonable care while inside the store]. FAULT OF
PETITIONERS
HELD:
Accident v. Negligence they are intrinsically
contradictory
ACCIDENT pertains to an unforeseen event in which no fault
or negligence attaches to defendant (or if it happens wholly or
partly through human agency, it is an event which under the
circumstances is unusual or unexpected by the person to
whom it happens); there is exercise of ordinary care here
NEGLIGENCE is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would not do
Alternatively, it is the failure to observe, for the protection of
another persons interest, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby
such other person suffers injury
Picart v. Smith lays down the test to determine WON
negligence exists: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an
ordinary prudent person would have used in the same
situation? If not, he is guilty of negligence.
SC found that Zhieneth performed no act that facilitated her
death. Basis is her statement to the doctor as related by former
employee Gonzales. It was made part of the res gestae since
she made the statement immediately subsequent to the
startling occurrence. It is axiomatic that matters relating to
declarations of pain or suffering and statements made to a
physician are generally considered declarations and
admissions. Also, the court considered the fact that Zhieneth
was of a tender age (and in so much pain!), so it would be
unthinkable that she would lie.
Other findings:
Petitioners were informed of the danger posed by the unstable
counter, yet they did not act on the matter, so they failed to
discharge the due diligence required of a good father of a
family.
They failed to establish that the testimonies of former
employees were biased.
Conclusive presumption that children below 9 are incapable
of contributory negligence is applied.
Judge Sangco [book author] says that children below 9 is
conclusively presumed to have acted without discernment, and
are exempt from criminal liability. Since negligence may be a
felony and a QD, it required discernment as a condition of
liability, so therefore, said children are presumed to be
incapable of negligence.
Even if contributory negligence would be attributed to Zhieneth,
no injury should have occurred if petitioners theory that the
counter is stable and sturdy is to be believed.
Criselda is absolved from any contributory negligence,
since it was reasonable for her to let go of her child to sign a
slip.
Zhieneth was just a foot away from her mother, and the counter
was just four meters away from Criselda (contrary to
statements that Zhieneth was loitering at that time).
VDA. DE IMPERIAL VS HELD LUMBER COMPANY
PLAINTIFFS-APPELLANTS: CONCEPCION PELLOSA
VDA. DE IMPERIAL, in her own behalf and as Guardian
Ad Litem of her minor child,
REX IMPERIAL, JR.
DEFENDANT-APPELLEE: HEALD LUMBER COMPANY
G.R. No. L-
14088
September 30, 1961
CONCEPCION, J.:
(Detalyado yung case kaya basahin talaga. More on facts
siya.)
*Appeal from a decision of CFI Baguio dismissing the
complaints in the above entitled three cases.
*On June 4, 1954, at about 6:50 a.m., a helicopter (PIC361) of
the Philippine Air Lines, Inc. (PAL), which had been chartered
by the Lepanto Consolidated Mining Co., took off from Nichols
Fields, in Makati, Rizal, headed for Mankayan, Mt. Province,
via Rosales, Pangasinan. On board the helicopter were Capt.
Gabriel Hernandez and Lt. Rex Imperial. The helicopter
reached Rosales at 8:22 a.m., and, fifty-three (53) minutes
later, or at 9:15 a.m., it undertook the last leg of its flight to
Mankayan. However, the helicopter did not reach this place for
it crashed on the way. A search party composed of, among
others, Capts. Willis Rohlings and Jaime Manzano, both of the
PAL organized to track down the missing helicopter, found
it in a ravine located in the barrio of Ampusungan, Benguet, Mt.
Province within the lumber concession of defendant-appellee,
Heald Lumber Co. which is several kilometers before reaching
Mankayan. The helicopter was a total wreck and both Capt.
Hernandez and Lt. Imperial were dead. The body of the former
was strapped to his seat, but that of the latter was several feet
away from the wreckage. At the time of the flight, Capt.
Hernandez was a duly licensed helicopter pilot, whereas Lt.
Imperial, although a licensed plane pilot, was then under
training as helicopter pilot.
*Owing to this accident, three (3) actions were instituted in the
court aforementioned, against said defendant, namely: (1)
case No. 580 (G.R. No. L-14112), filed by PAL on March 2,
1956; (2) case No. 591 (G.R. No. L-14088), filed by
Concepcion Pellosa de Imperial, widow of the deceased Lt.
Imperial, on April 13, 1956; and 3) case No. 592 (G.R. No. L-
14089), filed by Lourdes Ferrer de Hernandez, widow of
Capt. Hernandez, on the date last mentioned.
*In the first case, the PAL sought to recover the following:
Value of the helicopter
Compensation for the death of Capt. Hernandez & Lt. Imperia
at P20,000 each
 Consequential damages due to the loss of the helicopter
Funeral expenses for Capt. Hernandez and Lt. Imperial
Expenses incurred in the training of Capt. Hernandez in the 17,405.82
U.S. and Lt. Imperial for operation of helicopter
Moral damages resulting from harmful publicity of the crash "maximum
TOTAL
upon the ground that the mishap was due to the fact that the
helicopter had collided "with defendant's tramway steel cables
strung in parallel of approximately 3,000 yards in length
between two mountains approximately 3,000 to 5,000 feet high
in the vicinity of defendant's logging area in Ampusungan,
Mountain Province."
*In each of the other cases, the respective plaintiffs therein
prayed for judgment as follows:
Actual and compensatory damages
Exemplary damages
Moral damages
Expenses of litigation
Attorney's fees
TOTAL
upon the theory that the death of Lt. Imperial and Capt.
Hernandez was due to defendant's alleged "gross negligence"
and "flagrant violation of applicable laws and regulations."
*Hon. Jesus de Veyra, rendered the decision appealed from,
finding that plaintiffs had "failed to make out a case of
negligence on the part of the defendant" and, accordingly,
dismissing the three (3) complaints.
Appellants maintain that the accident is imputable to the
defendant, because the helicopter, particularly its main rotor
blades, had hit or collided with defendant's aforementioned
steel cables.
In this connection, Capt. Rohlings, who, at the time of the
occurrence, was Assistant Superintendent of the Flight Control
of the PAL, testified that, during the investigation conducted by
him at the site of the crash, he found on the rotor blades of the
helicopter.
several long marks which contained small
indentations which were parallel to each other,
parallel lines, if you would put it that way, these marks
were covered by blackish substance of some kind
which I took to be of grease of some kind.
Capt. Manzano, the Superintendent of Helicopter Operations
of the PAL, tried to corroborate this testimony of Capt.
Rohlings. Both opined that the marks were due to the contact
of said rotor blades with the steel cables of defendant herein.
ISSUE: WON Appellants are entitled for damages
HELD: The evidence for the plaintiffs as to the cause of the
crash is not conclusive. The main rotor blade was not
preserved, so this Court was not able to satisfy itself as to the
nature of the two long seriated streaks on the main rotor blade.
The composition of these streaks was not determined
whether they were grease from the steel cable or marks from
hitting a pine tree for it can be equally argued that these
seriated streaks could have been caused by the strands of a
greasy steel cable or the rough bark of a pine tree
Upon the other hand, defendant endeavored to prove that
the mishap had been due to two (2) causes, namely: (1)
exhaustion of the fuel; and (2) negligence of the pilot.
The record shows that the helicopter had a main tank and an
auxiliary tank with a capacity of twenty-seven (27) and fifteen
(15) gallons of fuel, respectively. The main tank was connected
to the engine, but the auxiliary tank was not. In order to transfer
gasoline from the latter to the former, it was necessary to land
the helicopter, as the process could not be undertaken during
flight. This was, in all probability, the reason why the aircraft
53,400.00
had to land in Rosales, Pangasinan, before proceeding to
2,542.00
Mankayan.
Col. Arnaiz, aircraft dispatcher of PAL, testified that the
30,000.00flight endurance" of the helicopter was "two hours
and fifty minutes including the auxiliary tank." The Flight Plan
P223,347.82
(Exhibit B-1), as explained by Col. Arnaiz, shows that the
estimated flying time from Nichols Field to Rosales was one (1)
hour and forty-two (42) minutes, and from Rosales to
Mankayan, one (1) hour and twenty-nine (29) minutes, or an
aggregate estimated flying time of three (3) hours and eleven
(11) minutes, or twenty-one (21) minutes longer than the
estimated "maximum flight endurance" of the helicopter. Even
if we deduct from said total estimated flying time, from Nichols
Field to Mankayan, the ten (10) minutes saved in the flight from
Nichols Field to Rosales, Pangasinan, the result would still be
eleven (11) minutes beyond the said "maximum flight
endurance" of the helicopter. In fact, the crash site
(Ampusungan) is only about sixteen (16) kilometers, or ten (10)
minutes flying time, to Mankayan. In other words, the accident
P150,000.00
took place in the area in which the helicopter was to have
fully consumed its entire supply of gasoline, thus
50,000.00
justifying the belief that it was forced to land in
50,000.00
Ampusungan due to lack of gasoline, and that, as the
10,000.00
engine ceased to function, its maneuverability must have
20,000.00
become impaired, in view of which it crashed, thus
causing it to fall into a ravine in defendant's
concession.1awphl.nt
P280,000.00
Several factors indicate strongly that this was in all likelihood
what happened for: (1) the site of the crash was more than a
mile (over three [3] miles, according to the defendant) off the
plotted course, altho, under normal conditions, no reasonably
prudent pilot according to appellants witness, Capt.
Manzano would have attempted to land in the vicinity of the
scene of the occurrence; (2) the wrecked helicopter emitted no
smell of gasoline and there was no sign of fire resulting from
the crash, despite the fact that the helicopter was using high
octane gasoline, which, admittedly, is highly inflammable and
would have probably set the craft aflame upon hitting the pine
tree above referred to, had there been some gasoline in the
tank at that time; and (3) the helicopter was a total wreck, thus
showing that the impact must have been strong.
The foregoing considerations suggest, also, that Capt.
Hernandez and Lt. Imperial had acted recklessly in undertaking
the flight with a supply of fuel hardly sufficient to enable them
to reach their destination. Besides, the landing report (Exhibit
9) shows that the portions thereof pertaining to the pilot were
accomplished or filled in by Lt. Imperial upon landing at the
Rosales airport. In fact, he signed said report as pilot of the
helicopter. Again, it appears that during the flight from Rosales
to Mankayan, the helicopter had deviated from one to three
miles from the course plotted by Capt. Hernandez, in which
Col. Arnaiz concurred "because that was the most logical route
to follow." Had Capt. Hernandez been piloting the machine
from Rosales to Mankayan, he would have had no reason to
deviate from the course planned by him, for the "visibility and
ceiling were unlimited in the area and vicinity where the
helicopter fell." All indications are, therefore, to the effect that,
at the time of the accident, the helicopter was being piloted, not
by Capt. Hernandez but by Lt. Imperial, in violation of
Aeronautics Bulletin No. 1, Civil Aviation Regulations, of the
Bureau of Aeronautics (CAA)1 as well as of Republic Act No.
776, Section 42 (H),2 for Lt. Imperial was not a lincesed
helicopter pilot and was merely in the initial stage of his training
as such pilot.
It is next urged that defendant was negligent in failing to
give notice to the Civil Aeronautics Administration of the
presence of the aforementioned tram cables, which,
appellants maintain, constituted a hazard to aerial
navigation. However, this pretense is not borne out by the
record. Appellants' witness, Capt. Manzano, testified that
although, in searching for the missing helicopter, his plane
flew so low that there was danger of collision with the
mountains, he did not notice said cables. The same were
not, therefore, within the navigable air space. Similarly,
Capt. Rohlings described the area over which the cables
were strung as "a congested area full of pine trees" and a
"mountainous terrain slopping valley," thereby
implying that the space from the cables down was not
suitable for air navigation. In short, it has not been
satisfactorily shown that the cables were a hazard to aerial
navigation, or that the defendant should have or could
have reasonably foreseen that aircrafts would fly so low
over the place as to get entangled with said cables, for the
area is dangerous to navigation owing to its mountainous
terrain "full of pine trees."
In short plaintiffs-appellants have failed to establish their
pretense by a preponderance of evidence, in view of which
the decision appealed from must be, as it is hereby
affirmed, with costs against them. It is so ordered.
ATLANTIC GULF AND PACIFIC COMPANY OF MANILA,
INC VS CA
PETITIONER: ATLANTIC GULF AND PACIFIC COMPANY
OF MANILA, INC.
RESPPONDENTS: COURT OF APPEALS, CARLITO D.
CASTILLO, HEIRS OF CRISTETA CASTILLO and
CORNELIO CASTILLO
G.R. Nos. 114841-42 August 23, 1995
REGALADO, J.:
*Appeal by certiorari. CA affirmed RTC and increases the
award of damages
* Sometime in 1982, petitioner company commenced the
construction of a steel fabrication plant in the Municipality of
Bauan, Batangas, necessitating dredging operations at the
Batangas Bay in an area adjacent to the real property of private
respondents.
*As an offshoot of said dredging operations, an action for
damages against herein petitioner Atlantic Gulf and Pacific
Company of Manila, Inc. was filed by Carlito D. Castillo and
another action by Cristeta Castillo for herself and as guardian
of Cornelio Castillo.
*On August 19, 1985, the above-mentioned cases were
consolidated.
*Private respondents alleged that during the on-going
construction of its steel and fabrication yard, petitioner's
personnel and heavy equipment trespassed into the adjacent
parcels of land belonging to private respondents without their
consent. These heavy equipment damaged big portions of
private respondents' property which were further used by
petitioner as a depot or parking lots without paying any rent
therefor, nor does it appear from the records that such use of
their land was with the former's conformity.
*Private respondents further alleged that as a result of the
dredging operation of petitioner company, the sea silt and
water overflowed and were deposited upon their land.
Consequently, the said property which used to be agricultural
lands principally devoted to rice production and each averaging
an annual net harvest of 75 cavans, could no longer be planted
with palay as the soil became infertile, salty, unproductive and
unsuitable for agriculture.
*Petitioner company denied all the allegations of private
respondents and contended that its personnel and equipment
had neither intruded upon nor occupied any portion of private
respondents' landholdings. The alleged sea silt with water,
according to petitioner was due to the flood brought by the
heavy rains when typhoon "Ruping" hit and lashed the province
of Batangas in 1982.
*RTC DECISION
WHEREFORE, judgment is hereby rendered ordering
defendant:
1) To pay Carlito Castillo the sum of P65,240.00 plus legal
interest from the time of the filing of his complaint;
2) To pay the heirs of Cristeta Castillo the sum of
P32,630.00 plus legal interest from the time of the filing of
her complaint;
3) To pay Cornelio Castillo the sum of P47,490.00 with legal
interest from the time of the filing of his complaint;
4) To pay plaintiffs the sum of P10,000.00 each as
exemplary damages;
5) To pay plaintiffs the sum of P10,000.00 each as
attorney's fees;
6) To pay the costs of suit. (TAKE NOTE SA MGA
DAMAGES)
*CA DECISION.
Ordering defendant-appellant to pay:
1. Carlito Castillo the following amounts:
a) Compensatory damages in the amount of
P56,290.00 with legal interest from the time of the
finality of this decision until the same shall have been
fully paid;
b) Exemplary damages in the amount of P10,000.00;
c) Attorney's fees of P10,000.00; and
d) Costs of this suit.
2. Cornelio Castillo the following sums:
a) Compensatory damages in the amount of
P255,401.25 with legal interest from the time of the
finality of this decision up to the time the amount is
fully paid;
b) Exemplary damages of P10,000.00;
c) Attorney's fees of P10,000.00; and
d) Costs of this suit;
3. Cristeta Castillo the following amount(s):
a) Compensatory damages of P249,815.62 with legal
interest from the time this decision becomes final
until the amount is fully paid;
b) Exemplary damages of P10,000.00;
c) Attorney's fees of P10,000.00; and
d) Costs of suit.
(ANG LAKI NG TINAAS NG AMOUNT)
ISSUE: WON CA exercised its judicial power and discretion in
a most arbitrary, capricious and whimsical manner by awarding
against the petitioner, unconscionable, unreasonable and
excessive damages clearly not warranted under Articles 20 and
2176 of the Civil Code.
HELD: Yes. The evidence on record indubitably support the
findings of the trial and appellate courts that petitioner company
is liable for the destruction of the property of herein private
respondents and consequently entitle the latter to an award of
the damages prayed for. Such conclusions and findings of fact
by the lower courts are entitled to great weight on appeal and
will not be disturbed except for strong and cogent reasons,
none of which, however, obtain in the case at bar. The fact that
the appellate court adopted the findings of the trial court, as in
this case, makes the same binding upon the Supreme Court,
for the factual findings of said appellate court are generally
binding on the latter. For that matter the findings of the Court of
Appeals by itself, and which are supported by substantial
evidence, are almost beyond the power of review by the
Supreme Court.
Hence, on this aspect of its recourse, petitioner cannot expect
a reversal since it is a basic rule that only questions of law may
be raised in an appeal by certiorari under Rule 45 of the Rules
of Court. The jurisdiction of the Supreme Court in cases thus
brought to it from the Court of Appeals is limited to reviewing
and revising the errors of law imputed to it. It is not the function
of this Court to analyze or weigh such evidence all over again.
Its jurisdiction is limited to reviewing errors of law that might
have been committed by the lower court. Barring a showing
that the factual findings complained of are totally devoid of
support in the record or that they are so glaringly erroneous as
to constitute serious abuse of discretion, such findings must
stand, for the Supreme Court is not expected or required to
examine or contrast the oral and documentary evidence
submitted by the parties.
However, this Court finds that respondent Court of Appeals
committed a reversible error of law in increasing the amount of
damages awarded to private respondents by the court a quo.
Respondent appellate court exceeded its jurisdiction when it
modified the judgment of the trial court by increasing the award
of damages in favor of private respondents who, in the first
place, did not interpose an appeal therefrom. This being the
case, they are presumed to be satisfied with the adjudication
made by the lower court. As to them, the judgment of the court
below may be said to have attained finality.
The entrenched procedural rule in this jurisdiction is that a party
who has not himself appealed cannot obtain from the appellate
court any affirmative relief other than those granted in the
decision of the lower court. The appellee can only advance any
argument that he may deem necessary to defeat the
appellant's claim or to uphold the decision that is being
disputed. He can assign errors on appeal if such are required
to strengthen the views expressed by the court a quo. Such
assigned errors, in turn, may be considered by the appellate
court solely to maintain the appealed decision on other
grounds, but not for the purpose of modifying the judgment in
the appellee's favor and giving him other affirmative reliefs.
WHEREFORE, the challenged judgment of respondent Court
of Appeals is hereby MODIFIED with regard to the amount of
damages awarded to private respondents and the awards of
the trial court on this matter are hereby reinstated for that
purpose. In all other respects, the decision of respondent court
is AFFIRMED, without pronouncement as to costs.
CAUSAL CONNECTION
Causal Connection between the fault or negligence and
the damage
- There must be a clear evidence that the cause of the
damage if the fault or negligence of the defendant
- The fault or negligence of the defendant is the
proximate cause of the injury of the plaintiff
Art. 2179. When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendants lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded.
Proximate Cause
- is the adequate and efficient cause as in the natural
order of events, and under the particular
circumstances surrounding the case, would
necessarily produce the event.
- Is 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
- It is not necessarily the immediate cause, it is
necessarily the nearest time, distance or space
Contributory Negligence
- Act or omission amounting to want of ordinary care
on the part of the person injured which, concurring
with the defendants negligence is the proximate
cause of the injury
- To hold a person as having contributed to his injuries,
it must be shown that he performed an act that
brought about his injuries in disregard of warnings or
signs of an impending danger to health and body
- Omission of the diligence required by the
circumstances by virtue of which a person could have
avoided injury to himself
- It requires foreseeability of harm to oneself
- A child under 9 years of age must be conclusively
presumed incapable of contributory negligence
as a matter of law.
Effects of Contributory Negligence
a) There can be no recovery for damages if the
negligence can solely be attributed to the plaintiff
b) A plaintiff is barred from recovering the damages for
loss or injury caused by the negligence of defendant
only when plaintiffs negligence is the sole legal
cause of the damage, or the negligence of the
plaintiff and some persons other than the defendants
was the sole cause of the damage
c) If the plaintiff and defendant are both at fault, the
former may recover, but the amount of his recover
may only be such proportion of the entire damage
plaintiff sustained as the defendants negligence
bears to the combined negligence of both the plaintiff
and the defendant.
Doctrine of Comparative Negligence
- The negligence of both the plaintiff and the defendant
are compared for the purpose of reaching an
equitable apportionment of their respective liabilities
for the damages caused and suffered by the plaintiff
Test to Determine Proximate Cause
a) Foreseeability Test where the particular harm was
reasonably foreseeable, at the time of the
defendants misconduct, his act or omission is the
legal cause thereof
b) Natural and Probable Consequence Test where
the defendants liability is recognized only if the harm
or injury suffered is the natural and probable
consequence of his act or omission complained of
c) Sine qua non test where the defendants conduct
will not be considered as proximate cause of the
event if the event just the same would have occurred
without it
d) Cause and Condition Test test where a distinction
is made between the active cause of the harm or
injury and the existing conditions upon which that
cause operated. If the defendant has made a passive
static condition, which made the damage possible, he
is not liable
SEE ANDAMO VS IAC
NO PRE-EXISING CONTRACTUAL RELATIONS
If there is a pre-existing contract
- The proper cause of action is breach of contract or
culpa contractual
- Exception: Contract of Carriage (In here, the basis of
the liability is the deliberate and malicious violation of
the contract)
Can there be a TORT or QUASI-DELICT in Breach of
Contract?
- Gen. Rule: NO
- Exception: However, the existence of the contract
does not bar the commission of a tort by one against
the other and the consequent recovery of damages.
Where the act that breaks the contract may also be a
tort, the contractual relations of the parties does not
bar the recovery of damages
- Example: A passenger was ousted from his first-
class accommodation, and was compelled to take a
seat in a tourist class. Although the relation between
them is contractual in nature, the act that breaks the
contract is a tort; hence, he is entitled to damages.
Interference with Contractual Relations
- It constitutes torts when a person induced another to
violate the latters contract with a third person
Cases where Art. 2176 is not applicable
a) Where there was a pre-existing contractual relation of
employer and employee between the parties
b) When the fault or negligence is punished by law as a
crime
c) If the action for quasi-delict is instituted after 4 years
d) When the injury suffered is the result of a fortuitous
event
e) If there is no damage or injury caused to another
party
C. LAST CLEAR CHANCE
Art. 2179. When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendants lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded.
Doctrine of Last Clear Chance
- Allows the recovery to plaintiff who happened to have
been negligent also, provided the defendant has the
last opportunity to avoid the incident but failed to do
so
- There must be negligence on the part of both parties
- Also called the Humanitarian Negligence Doctrine, it
being an exception to the rule on contributory
negligence. It proceeds from the precepts of
humanity and natural justice
- Elements:
a) Plaintiff is placed in danger by his own
negligent acts and he is unable to get from
such situation by any means
b) Defendant knows that the plaintiff is in
danger and knows or should have known
 that the plaintiff was unable to extricate
himself therefrom
c) Defendant had the last clear chance or
opportunity to avoid the accident through
the exercise of ordinary care, but failed to
do so, and the accident occurred as a
proximate cause of such failure.
- Not applicable-
a) Collapse of a building or structure
b) When the claim or demand of the injured
passenger is the enforcement of the carriers
contractual obligation to bring him safely to his
destination
c) When the injury or accident cannot be avoided
by application of all means at hand after peril has
been discovered
Last clear chance (supervening negligence or
discovered peril)
This doctrine, in essence, states that where both
parties are negligent, but the negligent act of one is
appreciably later in time than that of the other, or
when it is impossible to determine whose fault or
negligence should be attributed to the incident, the
one who had the last clear opportunity to avoid the
impending harm and failed to do so is chargeable
with the consequences thereof.
The rule would also mean that an antecedent
negligence of a person does not preclude the
recovery of damages for the supervening
negligence of, or bar a defense against liability
sought by another, if the latter, who had the last fair
chance, could have avoided the impending harm by
the exercise of due diligence.
The doctrine applies only in a situation where the plaintiff
was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the
impending harm and failed to do so, is made liable for all
the consequences of the accident notwithstanding the
prior negligence of the plaintiff
The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes
the immediate or proximate cause of the accident which
intervenes between the accident and the more remote
negligence of the plaintiff, thus making the defendant
liable to the plaintiff .
Generally, the last clear chance doctrine is invoked for
the purpose of making a defendant liable to a plaintiff who
was guilty of prior or antecedent negligence, although it
may also be raised as a defense to defeat claim for
damages.
For the doctrine to be applicable, it is necessary to show that
the person who allegedly had the last opportunity to avert the
accident was aware of the existence of the peril or should, with
exercise of due care, have been aware of it. One cannot be
expected to avoid an accident or injury if he does not know or
could not have known the existence of the peril.
PHOENIX CONSTRUCTION VS IAC
PETITIONER: PHOENIX CONSTRUCTION, INC. and
ARMANDO U. CARBONEL
RESPONDENT: THE INTERMEDIATE APPELLATE COURT
and LEONARDO DIONISIO
G.R. No. L-65295
March 10, 1987
Ponente: FELICIANO, J:
The last clear chance is a doctrine in the law of torts that is
employed in contributory negligence jurisdictions. Under
this doctrine, a negligent plaintiff can nonetheless recover if he
is able to show that the defendant had the last opportunity to
avoid the accident.
FACTS:
*In the early morning of 15 November 1975 at about 1:30
a.m. private respondent Leonardo Dionisio was on his way
home he lived in 1214-B Zamora Street, Bangkal, Makati
from a cocktails-and-dinner meeting with his boss, the general
manager of a marketing corporation. During the cocktails
phase of the evening, Dionisio had taken "a shot or two" of
liquor. Dionisio was driving his Volkswagen car and had just
crossed the intersection of General Lacuna and General
Santos Streets at Bangkal, Makati, not far from his home, and
was proceeding down General Lacuna Street, when his car
headlights (in his allegation) suddenly failed.
*He switched his headlights on "bright" and thereupon he saw
a Ford dump truck 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 hand side of a person facing in the same direction toward
which Dionisio's car was proceeding), facing the oncoming
traffic.
*The dump truck was parked askew (not parallel to the street
curb) in such a manner as to stick out onto the street, partly
blocking the way of oncoming traffic. There were no lights nor
any so-called "early warning" reflector devices set anywhere
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 but it was too late and
his car smashed into the dump truck. As a result of the collision,
Dionisio suffered some physical injuries including some
permanent facial scars, a "nervous breakdown" and loss of two
gold bridge dentures.
*Dionisio commenced an action for damages in the Court of
First Instance of Pampanga basically claiming that the legal
and proximate cause of his injuries was the negligent manner
in which Carbonel had parked the dump truck entrusted to him
by his employer Phoenix. Phoenix and Carbonel, on the other
hand, countered that the proximate cause of Dionisio's injuries
was his own recklessness in driving fast at the time of the
accident, while under the influence of liquor, without his
headlights on and without a curfew pass. Phoenix also sought
to establish that it had exercised due rare in the selection and
supervision of the dump truck driver.
*The trial court rendered judgment in favor of Dionisio and
against Phoenix and Carbonel.
*Phoenix and Carbonel appealed to the Intermediate Appellate
Court. That court in CA-G.R. No. 65476 affirmed the decision
of the trial court but modified the award.
ISSUE: Whether the collision was brought about by the way
the truck was parked, or by respondents own negligence.
Ans: Petitioner is negligent on parking his truck. Respondents
(Dionisio) negligence is only contributory
HELD: We find that private respondent Dionisio was unable to
prove possession of a valid curfew pass during the night of the
accident. The preponderance of evidence shows that he did not
have such a pass during that night. It is the petitioners'
contention that Dionisio purposely shut off his headlights even
before he reached the intersection so as not to be detected by
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 way
malfunctioned and gone off, although he succeeded in
switching his lights on again at "bright" split seconds before
contact with the dump truck. We do not believe that this
evidence is sufficient to show that Dionisio was so heavily
under the influence of liquor as to constitute his driving a motor
vehicle per se an act of reckless imprudence. 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, he extinguished his
headlights at or near the intersection of General Lacuna and
General Santos Streets and thus did not see the dump truck
that was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate
cause of the accident and of Dionisio's injuries was the
wrongful or negligent manner in which the dump truck was
parked in other words, the negligence of petitioner Carbonel.
The collision of Dionisio's car with the dump truck was a natural
and foreseeable consequence of the truck driver's negligence.
The distinctions between "cause" and "condition" which the
'petitioners would have us adopt have already been "almost
entirely discredited. If the defendant has created only a passive
static 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. Even the lapse of a considerable time during which the
"condition" remains static will not necessarily affect liability.
"Cause" and "condition" still find occasional mention in the
decisions; but the distinction is now almost entirely
discredited. So far as it has any validity at all, it must refer to
the type of case where the forces set in operation by the
defendant have come to rest in a position of apparent safety,
and some new force intervenes. But even in such cases, it is
not the distinction between "cause" and "condition" which is
important but the nature of the risk and the character of the
intervening cause.
We believe, secondly, that the truck driver's negligence far from
being a "passive and static condition" was rather an
indispensable and efficient cause. The improper parking of the
dump truck created an unreasonable risk of injury for anyone
driving down General Lacuna Street and for having so created
this risk, the truck driver must be held responsible. In our view,
Dionisio's negligence, although later in point of time than the
truck driver's negligence and therefore closer to the accident,
was not an efficient intervening or independent cause.
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 category will not supersede the defendant's
responsibility. Thus, a defendant who blocks the sidewalk and
forces the plaintiff to walk in a street where the plaintiff will be
exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, 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. 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.
Petitioners also ask us to apply what they refer to as the
"last clear chance" doctrine. 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 do so. 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, has
itself been rejected, as it has been in Article 2179 of the Civil
Code of the Philippines. 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 or proximate cause
of the injury. The relative location in the continuum of time of
the plaintiff's and the defendant's negligent acts or omissions,
is only one of the relevant factors that may be taken into
account. Of more fundamental importance are the nature of the
negligent act or omission of each party and the character and
gravity of the risks created by such act or omission for the rest
of the community. Our law on quasi-delicts seeks to reduce the
risks and burdens of living in society and to allocate them
among the members of society. To accept the petitioners' pro-
position must tend to weaken the very bonds of society.
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 the respondent appellate court,
except the award of P10,000.00 as exemplary damages and
P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80% needs to
be paid by petitioners Carbonel and Phoenix who shall be
solidarity liable therefor to the former. The award of exemplary
damages and attorney's fees and costs shall be borne
exclusively by the petitioners. Phoenix is of course entitled to
reimbursement from Carbonel. We see no sufficient reason for
disturbing the reduced award of damages made by the
respondent appellate court.
PHILIPPINE BANK OF COMMERCE v CA
Petitioner: Philippine Bank Of Commerce, Now Absorbed By
Philippine Commercial International Bank, Rogelio Lacson,
Digna De Leon, Maria Angelita Pascual, Et Al
Respondent: The Court Of Appeals, Rommel's Marketing
Corp., Represented By Romeo Lipana, Its President & General
Manager
Citation: G.R. No. 97626
Date of Promugation: March 14, 1977
Ponente: Hermosisima, Jr., P
FACTS:
The case stemmed from a complaint filed by the
private respondent Rommel's Marketing Corporation
(RMC), represented by its President and General
Manager Romeo Lipana
o to recover from the former Philippine Bank
of Commerce (PBC), now absorbed by the
Philippine Commercial International Bank,
the sum of P304,979.74 representing
various deposits it had made in its current
account with said bank but which were not
credited to its account, and were instead
deposited to the account of one Bienvenido
Cotas, allegedly due to the gross and
inexcusable negligence of the petitioner
bank.
RMC maintained two (2) separate current accounts,
Current Account Nos. 53-01980-3 and 53-01748-7,
with the Pasig Branch of PBC in connection with its
business of selling appliances.
In the ordinary and usual course of banking
operations, current account deposits are accepted by
the bank on the basis of deposit slips prepared and
signed by the depositor, or the latter's agent or
representative, who indicates therein:
o the current account number to which the
deposit is to be credited
o the name of the depositor or current
account holder
o the date of the deposit
o and the amount of the deposit either in
cash or checks.
The deposit slip has an upper portion or stub, which
is detached and given to the depositor or his agent;
the lower portion is retained by the bank. In some
instances, however, the deposit slips are prepared in
duplicate by the depositor. The original of the deposit
slip is retained by the bank, while the duplicate copy
is returned or given to the depositor.
From May 5, 1975 to July 16, 1976, petitioner Romeo
Lipana claims to have entrusted RMC funds in the
form of cash totalling P304,979.74 to his secretary,
Irene Yabut, for the purpose of depositing said funds
in the current accounts of RMC with PBC.
It turned out, however, that these deposits, on all
occasions, were not credited to RMC's account but
were instead deposited to Account No. 53-01734-7 of
Yabut's husband, Bienvenido Cotas who likewise
maintains an account with the same bank.
During this period, petitioner bank had, however,
been regularly furnishing private respondent with
monthly statements showing its current accounts
balances.
 Unfortunately, it had never been the practice of
Romeo Lipana to check these monthly statements of
account reposing complete trust and confidence on
petitioner bank.
Irene Yabut's modus operandi is far from
complicated.
o She would accomplish two (2) copies of
the deposit slip, an original and a duplicate.
o The original showed the name of her
husband as depositor and his current
account number. On the duplicate copy was
written the account number of her husband
but the name of the account holder was left
blank.
o PBC's teller, Azucena Mabayad, would,
however, validate and stamp both the
original and the duplicate of these deposit
slips retaining only the original copy despite
the lack of information on the duplicate slip.
o The second copy was kept by Irene Yabut
allegedly for record purposes.
o After validation, Yabut would then fill up the
name of RMC in the space left blank in the
duplicate copy and change the account
number written thereon, which is that of her
husband's, and make it appear to be RMC's
account number, i.e., C.A. No. 53-01980-3.
o With the daily remittance records also
prepared by Ms. Yabut and submitted to
private respondent RMC together with the
validated duplicate slips with the latter's
name and account number, she made her
company believe that all the while the
amounts she deposited were being credited
to its account when, in truth and in fact, they
were being deposited by her and credited
by the petitioner bank in the account of
Cotas.
This went on in a span of more than one (1) year
without private respondent's knowledge.
Upon discovery of the loss of its funds, RMC
demanded from petitioner bank the return of its
money, but as its demand went unheeded, it filed a
collection suit before the Regional Trial Court of
Pasig, Branch 160
The trial court found petitioner bank negligent
CA modified
ISSUE:
Whether or not the Petitoner Bank was negligent.
RULING:
Yes. Petitioners submit that the proximate cause of the
loss is the negligence of respondent RMC and Romeo Lipana
in entrusting cash to a dishonest employee in the person of Ms.
Irene Yabut.5 According to them, it was impossible for the bank
to know that the money deposited by Ms. Irene Yabut belong
to RMC; neither was the bank forewarned by RMC that Yabut
will be depositing cash to its account. Thus, it was impossible
for the bank to know the fraudulent design of Yabut considering
that her husband, Bienvenido Cotas, also maintained an
account with the bank. For the bank to inquire into the
ownership of the cash deposited by Ms. Irene Yabut would be
irregular. Otherwise stated, it was RMC's negligence in
entrusting cash to a dishonest employee which provided Ms.
Irene Yabut the opportunity to defraud RMC.6
Private respondent, on the other hand, maintains that the
proximate cause of the loss was the negligent act of the bank,
thru its teller Ms. Azucena Mabayad, in validating the deposit
slips, both original and duplicate, presented by Ms. Yabut to
Ms. Mabayad, notwithstanding the fact that one of the deposit
slips was not completely accomplished.
We sustain the private respondent.
Our law on quasi-delicts states:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
There are three elements of a quasi-delict: (a) damages
suffered by the plaintiff; (b) fault or negligence of the defendant,
or some other person for whose acts he must respond; and (c)
the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the
plaintiff.7
In the case at bench, there is no dispute as to the damage
suffered by the private respondent (plaintiff in the trial court)
RMC in the amount of P304,979.74. It is in ascribing fault or
negligence which caused the damage where the parties point
to each other as the culprit.
Negligence is the omission to do something which a
reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or
the doing of something which a prudent and reasonable man
would do. The seventy-eight (78)-year-old, yet still relevant,
case of Picart v. Smith,8 provides the test by which to
determine the existence of negligence in a particular case
which may be stated as follows: Did the defendant in doing the
alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the
same situation? If not, then he is guilty of negligence. The law
here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not
determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.
Applying the above test, it appears that the bank's teller, Ms.
Azucena Mabayad, was negligent in validating, officially
stamping and signing all the deposit slips prepared and
presented by Ms. Yabut, despite the glaring fact that the
duplicate copy was not completely accomplished contrary to
the self-imposed procedure of the bank with respect to the
proper validation of deposit slips, original or duplicate, as
testified to by Ms. Mabayad herself, thus:
Q: Now, as teller of PCIB, Pasig Branch, will you please tell
us Mrs. Mabayad your important duties and functions?
A: I accept current and savings deposits from depositors
and encashments.
Q: Now in the handling of current account deposits of bank
clients, could you tell us the procedure you follow?
A: The client or depositor or the authorized representative
prepares a deposit slip by filling up the deposit slip with the
name, the account number, the date, the cash breakdown, if it
is deposited for cash, and the check number, the amount and
then he signs the deposit slip.
Q: Now, how many deposit slips do you normally require in
accomplishing current account deposit, Mrs. Mabayad?
A: The bank requires only one copy of the deposit although
some of our clients prepare the deposit slip in duplicate.
Q: Now in accomplishing current account deposits from your
clients, what do you issue to the depositor to evidence the
deposit made?
A: We issue or we give to the clients the depositor's stub as
a receipt of the deposit.
Q: And who prepares the deposit slip?
A: The depositor or the authorized representative sir?
Q: Where does the depositor's stub comes (sic) from Mrs.
Mabayad, is it with the deposit slip?
A: The depositor's stub is connected with the deposit slip or
the bank's copy. In a deposit slip, the upper portion is the
depositor's stub and the lower portion is the bank's copy, and
you can detach the bank's copy from the depositor's stub by
tearing it sir.
Q: Now what do you do upon presentment of the deposit slip
by the depositor or the depositor's authorized representative?
A: We see to it that the deposit slip9 is properly
accomplished and then we count the money and then we tally
it with the deposit slip sir.
Q: Now is the depositor's stub which you issued to your
clients validated?
A: Yes, sir. 10 [Emphasis ours]
Clearly, Ms. Mabayad failed to observe this very important
procedure. The fact that the duplicate slip was not compulsorily
required by the bank in accepting deposits should not relieve
the petitioner bank of responsibility. The odd circumstance
alone that such duplicate copy lacked one vital information
that of the name of the account holder should have already
put Ms. Mabayad on guard. Rather than readily validating the
incomplete duplicate copy, she should have proceeded more
cautiously by being more probing as to the true reason why the
name of the account holder in the duplicate slip was left blank
while that in the original was filled up. She should not have
been so naive in accepting hook, line and sinker the too shallow
excuse of Ms. Irene Yabut to the effect that since the duplicate
copy was only for her personal record, she would simply fill up
the blank space later on. 11 A "reasonable man of ordinary
prudence" 12 would not have given credence to such
explanation and would have insisted that the space left blank
be filled up as a condition for validation. Unfortunately, this was
not how bank teller Mabayad proceeded thus resulting in huge
losses to the private respondent.
Negligence here lies not only on the part of Ms. Mabayad
but also on the part of the bank itself in its lackadaisical
selection and supervision of Ms. Mabayad. This was
exemplified in the testimony of Mr. Romeo Bonifacio, then
Manager of the Pasig Branch of the petitioner bank and now its
Vice-President, to the effect that, while he ordered the
investigation of the incident, he never came to know that blank
deposit slips were validated in total disregard of the bank's
validation procedures, viz:
Q: Did he ever tell you that one of your cashiers affixed the
stamp mark of the bank on the deposit slips and they validated
the same with the machine, the fact that those deposit slips
were unfilled up, is there any report similar to that?
A: No, it was not the cashier but the teller.
Q: The teller validated the blank deposit slip?
A: No it was not reported.
Q: You did not know that any one in the bank tellers or
cashiers validated the blank deposit slip?
A: I am not aware of that.
Q: It is only now that you are aware of that?
A: Yes, sir. 13
Prescinding from the above, public respondent Court of
Appeals aptly observed:
xxx xxx xxx
It was in fact only when he testified in this case in February,
1983, or after the lapse of more than seven (7) years counted
from the period when the funds in question were deposited in
plaintiff's accounts (May, 1975 to July, 1976) that bank
manager Bonifacio admittedly became aware of the practice of
his teller Mabayad of validating blank deposit slips.
Undoubtedly, this is gross, wanton, and inexcusable
negligence in the appellant bank's supervision of its
employees. 14
It was this negligence of Ms. Azucena Mabayad, coupled by
the negligence of the petitioner bank in the selection and
supervision of its bank teller, which was the proximate cause of
the loss suffered by the private respondent, and not the latter's
act of entrusting cash to a dishonest employee, as insisted by
the petitioners.
Proximate cause is determined on the facts of each case upon
mixed considerations of logic, common sense, policy and
precedent. 15 Vda. de Bataclan v. Medina, 16 reiterated in the
case of Bank of the Phil. Islands v. Court of Appeals, 17 defines
proximate cause as "that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would
not have occurred. . . ." In this case, absent the act of Ms.
Mabayad in negligently validating the incomplete duplicate
copy of the deposit slip, Ms. Irene Yabut would not have the
facility with which to perpetrate her fraudulent scheme with
impunity. Apropos, once again, is the pronouncement made by
the respondent appellate court, to wit:
. . . . Even if Yabut had the fraudulent intention to
misappropriate the funds entrusted to her by plaintiff, she would
not have been able to deposit those funds in her husband's
current account, and then make plaintiff believe that it was in
the latter's accounts wherein she had deposited them, had it
not been for bank teller Mabayad's aforesaid gross and
reckless negligence. The latter's negligence was thus the
proximate, immediate and efficient cause that brought about
the loss claimed by plaintiff in this case, and the failure of
plaintiff to discover the same soon enough by failing to
scrutinize the monthly statements of account being sent to it by
appellant bank could not have prevented the fraud and
misappropriation which Irene Yabut had already completed
when she deposited plaintiff's money to the account of her
husband instead of to the latter's accounts. 18
Furthermore, under the doctrine of "last clear chance" (also
referred to, at times as "supervening negligence" or as
"discovered peril"), petitioner bank was indeed the culpable
party. This doctrine, in essence, states that where both parties
are negligent, but the negligent act of one is appreciably later
in time than that of the other, or when it is impossible to
determine whose fault or negligence should be attributed to the
incident, the one who had the last clear opportunity to avoid the
impending harm and failed to do so is chargeable with the
consequences thereof. Stated differently, the rule would also
mean that an antecedent negligence of a person does not
preclude the recovery of damages for the supervening
negligence of, or bar a defense against liability sought by
another, if the latter, who had the last fair chance, could have
avoided the impending harm by the exercise of due diligence.
20 Here, assuming that private respondent RMC was negligent
in entrusting cash to a dishonest employee, thus providing the
latter with the opportunity to defraud the company, as
advanced by the petitioner, yet it cannot be denied that the
petitioner bank, thru its teller, had the last clear opportunity to
avert the injury incurred by its client, simply by faithfully
observing their self-imposed validation procedure.
At this juncture, it is worth to discuss the degree of diligence
ought to be exercised by banks in dealing with their clients.
The New Civil Code provides:
Art. 1173. The fault or negligence of the obligor consists in the
omission of that diligence which is required by the nature of the
obligation and corresponds with the circumstances of the
persons, of the time and of the place. When negligence shows
bad faith, the provisions of articles 1171 and 2201, paragraph
2, shall apply.
If the law or contract does not state the diligence which is to be
observed in the performance, that which is expected of a good
father of a family shall be required. (1104a)
In the case of banks, however, the degree of diligence required
is more than that of a good father of a family. Considering the
fiduciary nature of their relationship with their depositors, banks
are duty bound to treat the accounts of their clients with the
highest degree of care. 21
As elucidated in Simex International (Manila), Inc. v. Court of
Appeals, 22 in every case, the depositor expects the bank to
treat his account with the utmost fidelity, whether such account
consists only of a few hundred pesos or of millions. The bank
must record every single transaction accurately, down to the
last centavo, and as promptly as possible. This has to be done
if the account is to reflect at any given time the amount of
money the depositor can dispose as he sees fit, confident that
the bank will deliver it as and to whomever he directs. A blunder
on the part of the bank, such as the failure to duly credit him his
deposits as soon as they are made, can cause the depositor
not a little embarrassment if not financial loss and perhaps
even civil and criminal litigation.
The point is that as a business affected with public interest and
because of the nature of its functions, the bank is under
obligation to treat the accounts of its depositors with meticulous
care, always having in mind the fiduciary nature of their
relationship. In the case before us, it is apparent that the
petitioner bank was remiss in that duty and violated that
relationship.
Petitioners nevertheless aver that the failure of respondent
RMC to cross-check the bank's statements of account with its
own records during the entire period of more than one (1) year
is the proximate cause of the commission of subsequent frauds
and misappropriation committed by Ms. Irene Yabut.
We do not agree.
While it is true that had private respondent checked the monthly
statements of account sent by the petitioner bank to RMC, the
latter would have discovered the loss early on, such cannot be
used by the petitioners to escape liability. This omission on the
part of the private respondent does not change the fact that
were it not for the wanton and reckless negligence of the
petitioners' employee in validating the incomplete duplicate
deposit slips presented by Ms. Irene Yabut, the loss would not
have occurred. Considering, however, that the fraud was
committed in a span of more than one (1) year covering various
deposits, common human experience dictates that the same
would not have been possible without any form of collusion
between Ms. Yabut and bank teller Mabayad. Ms. Mabayad
was negligent in the performance of her duties as bank teller
nonetheless. Thus, the petitioners are entitled to claim
reimbursement from her for whatever they shall be ordered to
pay in this case.
The foregoing notwithstanding, it cannot be denied that,
indeed, private respondent was likewise negligent in not
checking its monthly statements of account. Had it done so, the
company would have been alerted to the series of frauds being
committed against RMC by its secretary. The damage would
definitely not have ballooned to such an amount if only RMC,
particularly Romeo Lipana, had exercised even a little vigilance
in their financial affairs. This omission by RMC amounts to
contributory negligence which shall mitigate the damages that
may be awarded to the private respondent 23 under Article
2179 of the New Civil Code, to wit:
. . . When the plaintiff's own negligence was the immediate and
proximate cause of his injury, he cannot recover damages. But
if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant's lack of due
care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.
In view of this, we believe that the demands of substantial
justice are satisfied by allocating the damage on a 60-40 ratio.
Thus, 40% of the damage awarded by the respondent
appellate court, except the award of P25,000.00 attorney's
fees, shall be borne by private respondent RMC; only the
balance of 60% needs to be paid by the petitioners. The award
of attorney's fees shall be borne exclusively by the petitioners.
WHEREFORE, the decision of the respondent Court of
Appeals is modified by reducing the amount of actual damages
private respondent is entitled to by 40%. Petitioners may
recover from Ms. Azucena Mabayad the amount they would
pay the private respondent. Private respondent shall have
recourse against Ms. Irene Yabut. In all other respects, the
appellate court's decision is AFFIRMED.
Proportionate costs.
SO ORDERED.
PANTRANCO v BAESA
Petitioner: Pantranco North Express, Inc.
Respondent: Maricar Bascos Baesa, Thru Her Personal
Guardian Francisca O. Bascos, Fe O. Ico, In Her Behalf And In
Behalf Of Her Minor Children, Namely Erwin, Olive, Edmundo
And Sharon Ico
Citation: G.R. Nos. 79050-51
Date of Promugation: November 14, 1989
Ponente: Cortes, J
FACTS:
At about 7:00 oclock in the morning of June 12, 1981,
the spouses Ceasar and Marilyn Baesa and their
children Harold Jim, Marcelino and Maricar, together
with spouses David Ico and Fe O. Ico with their son
Erwin Ico and seven other persons, were aboard a
passenger jeepney on their way to a picnic at
Malalam River, Ilagan, Isabela, to celebrate the fifth
wedding anniversary of Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in
the passenger jeepney driven by David Ico, who was
also the registered owner thereof.
From Ilagan, Isabela, they proceeded to Barrio
Capayacan to deliver some viands to one Mrs.
Bascos and thenceforth to San Felipe, taking the
highway going to Malalam River.
Upon reaching the highway, the jeepney turned right
and proceeded to Malalam River at a speed of about
20 kph.
While they were proceeding towards Malalam River,
a speeding PANTRANCO bus from Aparri, on its
regular route to Manila, encroached on the jeepneys
lane while negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar
Baesa and Marilyn Baesa and their children, Harold
Jim and Marcelino Baesa, died while the rest of the
passengers suffered injuries.
The jeepney was extensively damaged. After the
accident the driver of the PANTRANCO Bus,
Ambrosio Ramirez, boarded a car and proceeded to
Santiago, Isabela.
From that time on up to the present, Ramirez has
never been seen and has apparently remained in
hiding.
All the victims and/or their surviving heirs except
herein private respondents settled the case amicably
under the "No Fault" insurance coverage of
PANTRANCO.
Maricar Baesa through her guardian Francisca O.
Bascos and Fe O. Ico for herself and for her minor
children, filed separate actions for damages arising
from quasi-delict against PANTRANCO, respectively
docketed as Civil Case No. 561-R and 589-R of the
Court of First Instance of Pangasinan.
In its answer, PANTRANCO, aside from pointing to
the late David Icos alleged negligence as the
proximate cause of the accident, invoked the defense
of due diligence in the selection and supervision of its
driver, Ambrosio Ramirez.chanroblesvirtualawlibrary
CFI of Pangasinan rendered a decision against
PANTRANCO.
PANTRANCO filed a motion for reconsideration of
the Court of Appeals decision, it denied the same for
lack of merit. PANTRANCO then filed the instant
petition for review.
ISSUE:
Whether or not the doctrine of last clear chance should
be applied against the jeepney driver.
RULING:
NO. Petitioner faults the Court of Appeals for not applying
the doctrine of the "last clear chance" against the jeepney
driver. Petitioner claims that under the circumstances of the
case, it was the driver of the passenger jeepney who had the
last clear chance to avoid the collision and was therefore
negligent in failing to utilize with reasonable care and
competence his then existing opportunity to avoid the harm.
The doctrine of the last clear chance was defined by this Court
in the case of Ong v. Metropolitan Water District, 104 Phil. 397
(1958), in this wise:
The doctrine of the last clear chance simply, means that
the negligence of a claimant does not preclude a recovery
for the negligence of defendant where it appears that the
latter, by exercising reasonable care and prudence, might
have avoided injurious consequences to claimant
notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff
was guilty of prior or antecedent negligence but the
defendant, who had the last fair chance to avoid the
impending harm and failed to do so, is made liable for all
the consequences of the accident notwithstanding the
prior negligence of the plaintiff [Picart v. Smith, 37 Phil.
809 (1918); Glan Peoples Lumber and Hardware, Et. Al. v.
Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, Et Al., G.R. No. 70493, May 18, 1989]. The
subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes
the immediate or proximate cause of the accident which
intervenes between the accident and the more remote
negligence of the plaintiff, thus making the defendant
liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the
purpose of making a defendant liable to a plaintiff who was
guilty of prior or antecedent negligence, although it may
also be raised as a defense to defeat claim for damages.
To avoid liability for the negligence of its driver, petitioner
claims that the original negligence of its driver was not the
proximate cause of the accident and that the sole
proximate cause was the supervening negligence of the
jeepney driver David Ico in failing to avoid the accident. It
is petitioners position that even assuming arguendo, that
the bus encroached into the lane of the jeepney, the driver
of the latter could have swerved the jeepney towards the
spacious dirt shoulder on his right without danger to
himself or his passengers.
The above contention of petitioner is manifestly devoid of
merit.
Contrary to the petitioners contention, the doctrine of
"last clear chance" finds no application in this case. For
the doctrine to be applicable, it is necessary to show that
the person who allegedly had the last opportunity to avert
the accident was aware of the existence of the peril or
should, with exercise of due care, have been aware of it.
One cannot be expected to avoid an accident or injury if
he does not know or could not have known the existence
of the peril. In this case, there is nothing to show that the
jeepney driver David Ico knew of the impending danger.
When he saw at a distance that the approaching bus was
encroaching on his lane, he did not immediately swerve
the jeepney to the dirt shoulder on his right since he must
have assumed that the bus driver will return the bus to its
own lane upon seeing the jeepney approaching from the
opposite direction. As held by this Court in the case of
Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31,
1970, 34 SCRA 618, a motorist who is properly proceeding
on his own side of the highway is generally entitled to
assume that an approaching vehicle coming towards him
on the wrong side, will return to his proper lane of traffic.
There was nothing to indicate to David Ico that the bus
could not return to its own lane or was prevented from
returning to the proper lane by anything beyond the
control of its driver. Leo Marantan, an alternate driver of
the Pantranco bus who was seated beside the driver
Ramirez at the time of the accident, testified that Ramirez
had no choice but to swerve the steering wheel to the left
and encroach on the jeepneys lane because there was a
steep precipice on the right [CA Decision, p. 2; Rollo, p.
45]. However, this is belied by the evidence on record
which clearly shows that there was enough space to
swerve the bus back to its own lane without any danger
[CA Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals
found that at the time of the accident the Pantranco bus
was speeding towards Manila [CA Decision, p. 2; Rollo, p.
45]. By the time David Ico must have realized that the bus
was not returning to its own lane, it was already too late to
swerve the jeepney to his right to prevent an accident. The
speed at which the approaching bus was running
prevented David Ico from swerving the jeepney to the right
shoulder of the road in time to avoid the collision. Thus,
even assuming that the jeepney driver perceived the
danger a few seconds before the actual collision, he had
no opportunity to avoid it. This Court has held that the last
clear chance doctrine "can never apply where the party
charged is required to act instantaneously, and if the injury
cannot be avoided by the application of all means at hand
after the peril is or should have been discovered" [Ong v.
Metropolitan Water District, supra].chanrobles.com :
virtual law library
Petitioner likewise insists that David Ico was negligent in
failing to observe Section 43 (c), Article III Chapter IV of
Republic Act No. 4136 * which provides that the driver of a
vehicle entering a through highway or a stop intersection
shall yield the right of way to all vehicles approaching in
either direction on such through highway.
Petitioners misplaced reliance on the aforesaid law is
readily apparent in this case. The cited law itself provides
that it applies only to vehicles entering a through highway
or a stop intersection. At the time of the accident, the
jeepney had already crossed the intersection and was on
its way to Malalam River. Petitioner itself cited Fe Icos
testimony that the accident occurred after the jeepney had
travelled a distance of about two (2) meters from the point
of intersection [Petition p. 10; Rollo, p. 27]. In fact, even the
witness for the petitioner, Leo Marantan, testified that both
vehicles were coming from opposite directions [CA
Decision, p. 7; Rollo, p. 50], clearly indicating that the
jeepney had already crossed the intersection.
Considering the foregoing, the Court finds that the
negligence of petitioners driver in encroaching into the
lane of the incoming jeepney and in failing to return the
bus to its own lane immediately upon seeing the jeepney
coming from the opposite direction was the sole and
proximate cause of the accident without which the
collision would not have occurred. There was no
supervening or intervening negligence on the part of the
jeepney driver which would have made the prior
negligence of petitioners driver a mere remote cause of
the accident.
II
On the issue of its liability as an employer, petitioner claims that
it had observed the diligence of a good father of a family to
prevent damage, conformably to the last paragraph of Article
2180 of the Civil Code. Petitioner adduced evidence to show
that in hiring its drivers, the latter are required to have
professional drivers license and police clearance. The drivers
must also pass written examinations, interviews and practical
driving tests, and are required to undergo a six-month training
period. Rodrigo San Pedro, petitioners Training Coordinator,
testified on petitioners policy of conducting regular and
continuing training programs and safety seminars for its
drivers, conductors, inspectors and supervisors at a frequency
rate of at least two (2) seminars a month.
On this point, the Court quotes with approval the following
findings of the trial court which was adopted by the Court of
Appeals in its challenged decision:chanrob1es virtual 1aw
library
When an injury is caused by the negligence of an employee,
there instantly arises a presumption that the employer has
been negligent either in the selection of his employees or in the
supervision over their acts. Although this presumption is only a
disputable presumption which could be overcome by proof of
diligence of a good father of a family, this Court believes that
the evidence submitted by the defendant to show that it
exercised the diligence of a good father of a family in the
case of Ramirez, as a company driver is far from sufficient.
No support evidence has been adduced. The professional
drivers license of Ramirez has not been produced. There is no
proof that he is between 25 to 38 years old. There is also no
proof as to his educational attainment, his age, his weight and
the fact that he is married or not. Neither are the result of the
written test, psychological and physical test, among other tests,
have been submitted in evidence [sic]. His NBI or police
clearances and clearances from previous employment were
not marked in evidence. No evidence was presented that
Ramirez actually and really attended the seminars. Vital
evidence should have been the certificate of attendance or
certificate of participation or evidence of such participation like
a logbook signed by the trainees when they attended the
seminars. If such records are not available, the testimony of the
classmates that Ramirez was their classmate in said seminar
(should have been presented) [CA Decision, pp. 8-9; Rollo, pp.
51-52].chanrobles law library
Petitioner contends that the fact that Ambrosio Ramirez was
employed and remained as its driver only means that he
underwent the same rigid selection process and was subjected
to the same strict supervision imposed by petitioner on all
applicants and employees. It is argued by the petitioner that
unless proven otherwise, it is presumed that petitioner
observed its usual recruitment procedure and company polices
on safety and efficiency [Petition, p. 20; Rollo, p. 37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver Ambrosio
Ramirez gave rise to the presumption of negligence on the part
of petitioner and the burden of proving that it exercised due
diligence not only in the selection of its employees but also in
adequately supervising their work rests with the petitioner
[Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali
v. Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623].
Contrary to petitioners claim, there is no presumption that the
usual recruitment procedures and safety standards were
observed. The mere issuance of rules and regulations and the
formulation of various company policies on safety, without
showing that they are being complied with, are not sufficient to
exempt petitioner from liability arising from the negligence of its
employee. It is incumbent upon petitioner to show that in
recruiting and employing the erring driver, the recruitment
procedures and company policies on efficiency and safety were
followed. Petitioner failed to do this. Hence, the Court finds no
cogent reason to disturb the finding of both the trial court and
the Court of Appeals that the evidence presented by the
petitioner, which consists mainly of the uncorroborated
testimony of its Training Coordinator, is insufficient to
overcome the presumption of negligence against
petitioner.cralawnad
III
On the question of damages, petitioner claims that the Court of
Appeals erred in fixing the damages for the loss of earning
capacity of the deceased victims. Petitioner assails respondent
courts findings because no documentary evidence in support
thereof, such as income tax returns, pay-rolls, pay slips or
invoices obtained in the usual course of business, were
presented [Petition, p. 22; Rollo, p. 39]. Petitioner argues that
the "bare and self-serving testimonies of the wife of the
deceased David Ico and the mother of the deceased Marilyn
Baesa . . . have no probative value to sustain in law the Court
of Appeals conclusion on the respective earnings of the
deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is
petitioners contention that the evidence presented by the
private respondent does not meet the requirements of clear
and satisfactory evidence to prove actual and compensatory
damages.
The Court finds that the Court of Appeals committed no
reversible error in fixing the amount of damages for the loss of
earning capacity of the deceased victims. While it is true that
private respondents should have presented documentary
evidence to support their claim for damages for loss of earning
capacity of the deceased victims, the absence thereof does not
necessarily bar the recovery of the damages in question. The
testimony of Fe Ico and Francisca Bascos as to the earning
capacity of David Ico, and the spouses Baesa, respectively, are
sufficient to establish a basis from which the court can make a
fair and reasonable estimate of the damages for the loss of
earning capacity of the three deceased victims. Moreover, in
fixing the damages for loss of earning capacity of a deceased
victim, the court can consider the nature of his occupation, his
educational attainment and the state of his health at the time of
death.
In the instant case, David Ico was thirty eight (38) years old at
the time of his death in 1981 and was driving his own
passenger jeepney. The spouses Ceasar and Marilyn Baesa
were both thirty (30) years old at the time of their death. Ceasar
Baesa was a commerce degree holder and the proprietor of the
Cauayan Press, printer of the Cauayan Valley Newspaper and
the Valley Times at Cauayan, Isabela. Marilyn Baesa
graduated as a nurse in 1976 and at the time of her death, was
the company nurse, personnel manager, treasurer and cashier
of the Ilagan Press at Ilagan, Isabela. Respondent court duly
considered these factors, together with the uncontradicted
testimonies of Fe Ico and Francisca Bascos, in fixing the
amount of damages for the loss of earning capacity of David
Ico and the spouses
However, it should be pointed out that the Court of Appeals
committed error in fixing the compensatory damages for the
death of Harold Jim Baesa and Marcelino Baesa. Respondent
court awarded to plaintiff (private respondent) Maricar Baesa
Thirty Thousand Pesos (P30,000.00) as "compensatory
damages for the death of Harold Jim Baesa and Marcelino
Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the
Court of Appeals awarded only Fifteen Thousand Pesos
(P15,000.00) as indemnity for the death of Harold Jim Baesa
and another Fifteen Thousand Pesos (P15,000.00) for the
death of Marcelino Baesa. This is clearly erroneous. In the case
of People v. de la Fuente, G.R. Nos. 63251-52, December 29,
1983, 126 SCRA 518, the indemnity for the death of a person
was fixed by this Court at Thirty Thousand Pesos (P30,000.00).
Plaintiff Maricar Baesa should therefore be awarded Sixty
Thousand Pesos (P60,000.00) as indemnity for the death of
her brothers, Harold Jim Baesa and Marcelino Baesa or Thirty
Thousand Pesos (P30,000.00) for the death of each brother.
The other items of damages awarded by respondent court
which were not challenged by the petitioner are hereby
affirmed.
WHEREFORE, premises considered, the petition is DENIED,
and the decision of respondent Court of Appeals is hereby
AFFIRMED with the modification that the amount of
compensatory damages for the death of Harold Jim Baesa and
Marcelino Baesa are increased to Thirty Thousand Pesos
(P30,000.00) each.
D. RES IPSA LOQUITOR
Art. 2179. When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot recover
damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the
defendants lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be
awarded.
Res Ipsa Loquitor
- The thing or transaction speaks for itself
- Conditions to be met for RIL to apply:
a) The accident was of such character as to
warrant an inference that it would not have
happened except for defendants
negligence
b) The accident must have been caused by an
agency or instrumentality within the
exclusive management or control of the
person charged with the negligence
complained of
The accident must not have been due to any
voluntary action or contribution on
AFRICA V CALTEX
Petitioner: The Spouses Bernabe Africa And Soledad C.
Africa, And The Heirs Of Dominga Ong
Respondent: CALTEX (PHIL.), INC., MATEO BOQUIREN
and THE COURT OF APPEALS
Citation: G.R. No. L-12986
Date of Promugation: March 31, 1966
Ponente: Makalintal, Jr., P
FACTS:
The action is for damages under Articles 1902 and
1903 of the old Civil Code.
It appears that in the afternoon of March 18, 1948 a
fire broke out at the Caltex service station at the
corner of Antipolo street and Rizal Avenue, Manila.
It started while gasoline was being hosed from a tank
truck into the underground storage, right at the
opening of the receiving tank where the nozzle of the
hose was inserted.
The fire spread to and burned several neighboring
houses, including the personal properties and effects
inside them.
Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren,
the first as alleged owner of the station and the
second as its agent in charge of operation.
Negligence on the part of both of them was attributed
as the cause of the fire.
The trial court and the Court of Appeals found that
petitioners failed to prove negligence and that
respondents had exercised due care in the premises
and with respect to the supervision of their
employees.
Issue:
Whether or not the doctrine of res ipsa loquitur can be
invoked in this case.
RULING:
YES.
The first question before Us refers to the admissibility
of certain reports on the fire prepared by the Manila Police and
Fire Departments and by a certain Captain Tinio of the Armed
Forces of the Philippines. Portions of the first two reports are
as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18, 1948,
while Leandro Flores was transferring gasoline from a tank
truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and
Antipolo Street, this City, an unknown Filipino lighted a
cigarette and threw the burning match stick near the main valve
of the said underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in pulling off
the gasoline hose connecting the truck with the underground
tank prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was
spouting. It burned the truck and the following accessorias and
residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic)
subleased for the installation of a coca-cola and cigarette
stand, the complainants furnished this Office a copy of a
photograph taken during the fire and which is submitted
herewith. it appears in this picture that there are in the premises
a coca-cola cooler and a rack which according to information
gathered in the neighborhood contained cigarettes and
matches, installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a
certain Benito Morales regarding the history of the gasoline
station and what the chief of the fire department had told him
on the same subject.
The foregoing reports were ruled out as "double hearsay" by
the Court of Appeals and hence inadmissible. This ruling is now
assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report
(Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine
him although they had the opportunity to do so; and thirdly, that
in any event the said reports are admissible as an exception to
the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The
transcript of the hearing of September 17, 1953 (pp. 167-170)
shows that the reports in question, when offered as evidence,
were objected to by counsel for each of respondents on the
ground that they were hearsay and that they were "irrelevant,
immaterial and impertinent." Indeed, in the court's resolution
only Exhibits J, K, K-5 and X-6 were admitted without objection;
the admission of the others, including the disputed ones,
carried no such explanation.
On the second point, although Detective Capacillo did take the
witness stand, he was not examined and he did not testify as
to the facts mentioned in his alleged report (signed by Detective
Zapanta). All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he need be
cross-examined; and the contents of the report, as to which he
did not testify, did not thereby become competent evidence.
And even if he had testified, his testimony would still have been
objectionable as far as information gathered by him from third
persons was concerned.
Petitioners maintain, however, that the reports in themselves,
that is, without further testimonial evidence on their contents,
fall within the scope of section 35, Rule 123, which provides
that "entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima facie
evidence of the facts therein stated."
There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or
by another person specially enjoined by law to do so; (b) that it
was made by the public officer in the performance of his duties,
or by such other person in the performance of a duty specially
enjoined by law; and (c) that the public officer or other person
had sufficient knowledge of the facts by him stated, which must
have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3
[1957] p. 398).
Of the three requisites just stated, only the last need be
considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted
the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts
the sources thereof are not even identified. Others are
attributed to Leopoldo Medina, referred to as an employee at
the gas station were the fire occurred; to Leandro Flores, driver
of the tank truck from which gasoline was being transferred at
the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to
Exhibit V-Africa, give any reason as to the origin of the fire. To
qualify their statements as "official information" acquired by the
officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts
stated but must have the duty to give such statements for
record.1
The reports in question do not constitute an exception to the
hearsay rule; the facts stated therein were not acquired by the
reporting officers through official information, not having been
given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the
cause and origin of the fire, the doctrine of res ipsa loquitur
should apply so as to presume negligence on the part of
appellees. Both the trial court and the appellate court refused
to apply the doctrine in the instant case on the grounds that "as
to (its) applicability ... in the Philippines, there seems to he
nothing definite," and that while the rules do not prohibit its
adoption in appropriate cases, "in the case at bar, however, we
find no practical use for such doctrine." The question deserves
more than such summary dismissal. The doctrine has actually
been applied in this jurisdiction, in the case of Espiritu vs.
Philippine Power and Development Co. (CA-G.R. No. 3240-R,
September 20, 1949), wherein the decision of the Court of
Appeals was penned by Mr. Justice J.B.L. Reyes now a
member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and
other companions were loading grass between the
municipalities of Bay and Calauan, in the province of Laguna,
with clear weather and without any wind blowing, an electric
transmission wire, installed and maintained by the defendant
Philippine Power and Development Co., Inc. alongside the
road, suddenly parted, and one of the broken ends hit the head
of the plaintiff as he was about to board the truck. As a result,
plaintiff received the full shock of 4,400 volts carried by the wire
and was knocked unconscious to the ground. The electric
charge coursed through his body and caused extensive and
serious multiple burns from skull to legs, leaving the bone
exposed in some parts and causing intense pain and wounds
that were not completely healed when the case was tried on
June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the
plaintiff had failed to show any specific act of negligence, but
the appellate court overruled the defense under the doctrine of
res ipsa loquitur. The court said:
The first point is directed against the sufficiency of plaintiff's
evidence to place appellant on its defense. While it is the rule,
as contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principal
that "where the thing which caused injury, without fault of the
injured person, is under the exclusive control of the defendant
and the injury is such as in the ordinary course of things does
not occur if he having such control use proper care, it affords
reasonable evidence, in the absence of the explanation, that
the injury arose from defendant's want of care."
And the burden of evidence is shifted to him to establish that
he has observed due care and diligence. (San Juan Light &
Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule
is known by the name of res ipsa loquitur (the transaction
speaks for itself), and is peculiarly applicable to the case at bar,
where it is unquestioned that the plaintiff had every right to be
on the highway, and the electric wire was under the sole control
of defendant company. In the ordinary course of events,
electric wires do not part suddenly in fair weather and injure
people, unless they are subjected to unusual strain and stress
or there are defects in their installation, maintenance and
supervision; just as barrels do not ordinarily roll out of the
warehouse windows to injure passersby, unless some one was
negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint
299, the leading case that established that rule). Consequently,
in the absence of contributory negligence (which is admittedly
not present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its installation, care
and maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with negligence, it
is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not
lay down doctrines binding on the Supreme Court, but we do
not consider this a reason for not applying the particular
doctrine of res ipsa loquitur in the case at bar. Gasoline is a
highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not
considered a fortuitous event, as it arises almost invariably
from some act of man. A case strikingly similar to the one
before Us is Jones vs. Shell Petroleum Corporation, et al., 171
So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon
which in the year 1934 was leased to the Shell Petroleum
Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being
transferred from the tank wagon, also operated by the Shell
Petroleum Corporation, to the underground tank of the station,
a fire started with resulting damages to the building owned by
Jones. Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation for the
recovery of that amount. The judge of the district court, after
hearing the testimony, concluded that plaintiff was entitled to a
recovery and rendered judgment in his favor for $427.82. The
Court of Appeals for the First Circuit reversed this judgment, on
the ground the testimony failed to show with reasonable
certainty any negligence on the part of the Shell Petroleum
Corporation or any of its agents or employees. Plaintiff applied
to this Court for a Writ of Review which was granted, and the
case is now before us for decision.
In resolving the issue of negligence, the Supreme Court of
Louisiana held:
Plaintiff's petition contains two distinct charges of negligence
one relating to the cause of the fire and the other relating to
the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's
building by the fire, no witnesses were placed on the stand by
the defendant.
Taking up plaintiff's charge of negligence relating to the
cause of the fire, we find it established by the record that
the filling station and the tank truck were under the control
of the defendant and operated by its agents or employees.
We further find from the uncontradicted testimony of
plaintiff's witnesses that fire started in the underground
tank attached to the filling station while it was being filled
from the tank truck and while both the tank and the truck
were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and
tank truck, and was communicated from the burning hose,
tank truck, and escaping gasoline to the building owned
by the plaintiff.
Predicated on these circumstances and the further
circumstance of defendant's failure to explain the cause of
the fire or to show its lack of knowledge of the cause,
plaintiff has evoked the doctrine of res ipsa loquitur. There
are many cases in which the doctrine may be successfully
invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is
shown to be under the management of defendant or his
servants and the accident is such as in the ordinary course
of things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45
C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been
widely approved and adopted by the courts of last resort.
Some of the cases in this jurisdiction in which the doctrine
has been applied are the following, viz.: Maus v. Broderick,
51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice,
etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St.
Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So.
892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies
with equal force here. The gasoline station, with all its
appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread to
and burned the neighboring houses. The persons who
knew or could have known how the fire started were
appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of
care.
In the report submitted by Captain Leoncio Mariano of the
Manila Police Department (Exh. X-1 Africa) the following
appears:
Investigation of the basic complaint disclosed that the Caltex
Gasoline Station complained of occupies a lot approximately
10 m x 10 m at the southwest corner of Rizal Avenue and
Antipolo. The location is within a very busy business district
near the Obrero Market, a railroad crossing and very thickly
populated neighborhood where a great number of people mill
around t
until
gasoline
tever be theWactjvities of these peopleor lighting a cigarette
cannot be excluded and this constitute a secondary hazard to
its operation which in turn endangers the entire neighborhood
to conflagration.
Furthermore, aside from precautions already taken by its
operator the concrete walls south and west adjoining the
neighborhood are only 2-1/2 meters high at most and cannot
avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which
caused not only material damages but desperation and also
panic in the neighborhood.
Although the soft drinks stand had been eliminated, this
gasoline service station is also used by its operator as a garage
and repair shop for his fleet of taxicabs numbering ten or more,
adding another risk to the possible outbreak of fire at this
already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer
in the performance of his duties on the basis of his own
personal observation of the facts reported, may properly be
considered as an exception to the hearsay rule. These facts,
descriptive of the location and objective circumstances
surrounding the operation of the gasoline station in question,
strengthen the presumption of negligence under the doctrine of
res ipsa loquitur, since on their face they called for more
stringent measures of caution than those which would satisfy
the standard of due diligence under ordinary circumstances.
There is no more eloquent demonstration of this than the
statement of Leandro Flores before the police investigator.
Flores was the driver of the gasoline tank wagon who, alone
and without assistance, was transferring the contents thereof
into the underground storage when the fire broke out. He said:
"Before loading the underground tank there were no people,
but while the loading was going on, there were people who
went to drink coca-cola (at the coca-cola stand) which is about
a meter from the hole leading to the underground tank." He
added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to
the "manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent omission
on the part of defendants, namely, their failure to provide a
concrete wall high enough to prevent the flames from leaping
over it. As it was the concrete wall was only 2-1/2 meters high,
and beyond that height it consisted merely of galvanized iron
sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore,
was not only with respect to the cause of the fire but also with
respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended
answer to the second amended complaint that "the fire was
caused through the acts of a stranger who, without authority,
or permission of answering defendant, passed through the
gasoline station and negligently threw a lighted match in the
premises." No evidence on this point was adduced, but
assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren
it does not extenuate his negligence. A decision of the
Supreme Court of Texas, upon facts analogous to those of the
present case, states the rule which we find acceptable here. "It
is the rule that those who distribute a dangerous article or
agent, owe a degree of protection to the public proportionate to
and commensurate with a danger involved ... we think it is the
generally accepted rule as applied to torts that 'if the effects of
the actor's negligent conduct actively and continuously operate
to bring about harm to another, the fact that the active and
substantially simultaneous operation of the effects of a third
person's innocent, tortious or criminal act is also a substantial
factor in bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184,
#439). Stated in another way, "The intention of an unforeseen
and unexpected cause, is not sufficient to relieve a wrongdoer
from consequences of negligence, if such negligence directly
and proximately cooperates with the independent cause in the
resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation,
153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the
damages caused to appellants. This issue depends on whether
Boquiren was an independent contractor, as held by the Court
of Appeals, or an agent of Caltex. This question, in the light of
the facts not controverted, is one of law and hence may be
passed upon by this Court. These facts are: (1) Boquiren made
an admission that he was an agent of Caltex; (2) at the time of
the fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the
management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX
painted on it; and (5) the license to store gasoline at the station
was in the name of Caltex, which paid the license fees. (Exhibit
T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa;
Exhibit Y-Africa).
In Boquiren's amended answer to the second amended
complaint, he denied that he directed one of his drivers to
remove gasoline from the truck into the tank and alleged that
the "alleged driver, if one there was, was not in his employ, the
driver being an employee of the Caltex (Phil.) Inc. and/or the
owners of the gasoline station." It is true that Boquiren later on
amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then
again, in his motion to dismiss appellants' second amended
complaint the ground alleged was that it stated no cause of
action since under the allegations thereof he was merely acting
as agent of Caltex, such that he could not have incurred
personal liability. A motion to dismiss on this ground is deemed
to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the
equipment therein, but claims that the business conducted at
the service station in question was owned and operated by
Boquiren. But Caltex did not present any contract with Boquiren
that would reveal the nature of their relationship at the time of
the fire. There must have been one in existence at that time.
Instead, what was presented was a license agreement
manifestly tailored for purposes of this case, since it was
entered into shortly before the expiration of the one-year period
it was intended to operate. This so-called license agreement
(Exhibit 5-Caltex) was executed on November 29, 1948, but
made effective as of January 1, 1948 so as to cover the date of
the fire, namely, March 18, 1948. This retroactivity provision is
quite significant, and gives rise to the conclusion that it was
designed precisely to free Caltex from any responsibility with
respect to the fire, as shown by the clause that Caltex "shall not
be liable for any injury to person or property while in the
property herein licensed, it being understood and agreed that
LICENSEE (Boquiren) is not an employee, representative or
agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can
hardly be considered an independent contractor. Under that
agreement Boquiren would pay Caltex the purely nominal sum
of P1.00 for the use of the premises and all the equipment
therein. He could sell only Caltex Products. Maintenance of the
station and its equipment was subject to the approval, in other
words control, of Caltex. Boquiren could not assign or transfer
his rights as licensee without the consent of Caltex. The license
agreement was supposed to be from January 1, 1948 to
December 31, 1948, and thereafter until terminated by Caltex
upon two days prior written notice. Caltex could at any time
cancel and terminate the agreement in case Boquiren ceased
to sell Caltex products, or did not conduct the business with
due diligence, in the judgment of Caltex. Termination of the
contract was therefore a right granted only to Caltex but not to
Boquiren. These provisions of the contract show the extent of
the control of Caltex over Boquiren. The control was such that
the latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his
position to the company and the latter could remove him or
terminate his services at will; that the service station belonged
to the company and bore its tradename and the operator sold
only the products of the company; that the equipment used by
the operator belonged to the company and were just loaned to
the operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's
gasoline and service station; that the price of the products sold
by the operator was fixed by the company and not by the
operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals
that the operator was an agent of the company and not an
independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are
not bound to rely upon the name or title given it by the
contracting parties, should thereby a controversy as to what
they really had intended to enter into, but the way the
contracting parties do or perform their respective obligations
stipulated or agreed upon may be shown and inquired into, and
should such performance conflict with the name or title given
the contract by the parties, the former must prevail over the
latter. (Shell Company of the Philippines, Ltd. vs. Firemens'
Insurance Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of
creating the apparent relationship of employer and
independent contractor, and of avoiding liability for the
negligence of the employees about the station; but the
company was not satisfied to allow such relationship to exist.
The evidence shows that it immediately assumed control, and
proceeded to direct the method by which the work contracted
for should be performed. By reserving the right to terminate the
contract at will, it retained the means of compelling submission
to its orders. Having elected to assume control and to direct the
means and methods by which the work has to be performed, it
must be held liable for the negligence of those performing
service under its direction. We think the evidence was sufficient
to sustain the verdict of the jury. (Gulf Refining Company v.
Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station
belonged to Boquiren. But no cash invoices were presented to
show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of
P9,005.80, after deducting the amount of P2,000.00 collected
by them on the insurance of the house. The deduction is now
challenged as erroneous on the ground that Article 2207 of the
New Civil Code, which provides for the subrogation of the
insurer to the rights of the insured, was not yet in effect when
the loss took place. However, regardless of the silence of the
law on this point at that time, the amount that should be
recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be
violated. With respect to the claim of the heirs of Ong P7,500.00
was adjudged by the lower court on the basis of the assessed
value of the property destroyed, namely, P1,500.00,
disregarding the testimony of one of the Ong children that said
property was worth P4,000.00. We agree that the court erred,
since it is of common knowledge that the assessment for
taxation purposes is not an accurate gauge of fair market value,
and in this case should not prevail over positive evidence of
such value. The heirs of Ong are therefore entitled to
P10,000.00.
Wherefore, the decision appealed from is reversed and
respondents-appellees are held liable solidarily to appellants,
and ordered to pay them the aforesaid sum of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the
complaint, and costs.
CEBU SHIPYARD v WILLIAM
Petitioner: Cebu Shipyard And Engineering Works, Inc.
Respondent: William Lines, Inc. And Prudential Guarantee
And Assurance Company, Inc.
Citation: G.R. No. 132607
Date of Promugation: May 5, 1999
Ponente: Purisima, J
FACTS:
Cebu Shipyard and Engineering Works, Inc. (CSEW)
is a domestic corporation engaged in the business of
dry-docking and repairing of marine vessels while the
private respondent, Prudential Guarantee and
Assurance, Inc. (Prudential), also a domestic
corporation is in the non-life insurance business.
William Lines, Inc., in the shipping business, owner of
M/V Manila City, a luxury passenger-cargo vessel,
which caught fire and sank on February 16, 1991.
At the time of the unfortunate occurrence sued upon,
subject vessel was insured with Prudential for
P45,000,000.00 pesos for hull and machinery.
The Hull Policy included an Additional Perils
(INCHMAREE) Clause covering loss of or damage to
the vessel through the negligence of, among others,
ship repairmen. The Policy provided as follows:
Subject to the conditions of this Policy, this
insurance also covers loss of or damage to
Vessel directly caused by the following:
xxx
Negligence of Charterers and/or Repairers,
provided such Charterers and/or Repairers
are not an Assured hereunder.
xxx
provided such loss or damage has not
resulted from want of due diligence by the
Assured, the Owners or Managers of the
Vessel, of any of them. Masters, Officers,
Crew or Pilots are not to be considered
Owners within the meaning of this Clause
should they hold shares in the Vessel.
Petitioner CSEW was also insured by Prudential for
third party liability under a Shiprepairers Legal
Liability Insurance Policy. The policy was for P10
million only, under the limited liability clause, to wit:
7. Limit of Liability
The limit of liability under this insurance, in
respect of any one accident or series of
accidents, arising out of one occurrence,
shall be [P10 million], including liability for
costs and expense which are either:
(a) incurred with the written consent of the
underwriters hereon; or
(b) awarded against the Assured.
On February 5, 1991, William Lines, Inc. brought its
vessel, M/V Manila City, to the Cebu Shipyard in
Lapulapu City for annual dry-docking and repair.
On February 6, 1991, an arrival conference was held
between representatives of William Lines, Inc. and
CSEW to discuss the work to be undertaken on the
M/V Manila City.
The contracts, denominated as Work Orders, were
signed thereafter, with the following stipulations:
10. The Contractor shall replace at its own
work and at its own cost any work or
material which can be shown to be
defective and which is communicated in
writing within one (1) month of redelivery of
the vessel or if the vessel was not in the
Contractors Possession, the withdrawal of
the Contractors workmen, or at its option to
pay a sum equal to the cost of such
replacement at its own works. These
conditions shall apply to any such
replacements.
11. Save as provided in Clause 10, the
Contractor shall not be under any liability to
the Customer either in contract or for delict
or quasi-delict or otherwise except for
negligence and such liability shall itself be
subject to the following overriding
limitations and exceptions, namely:
(a) The total liability of the Contractor to the
Customer (over and above the liability to
replace under Clause 10) or of any sub-
contractor shall be limited in respect of any
defect or event (and a series of accidents
arising out of the same defect or event shall
constitute one defect or event) to the sum
of Pesos Philippine Currency One Million
only.
(b) In no circumstance whatsoever shall the
liability of the Contractor or any Sub-
Contractor include any sum in respect of
loss of profit or loss of use of the vessel or
damages consequential on such loss of
use.
xxx
20. The insurance on the vessel should be
maintained by the customer and/or owner
of the vessel during the period the contract
is in effect.[4]
While the M/V Manila City was undergoing dry-
docking and repairs within the premises of CSEW,
the master, officers and crew of M/V Manila City
stayed in the vessel, using their cabins as living
quarters.
Other employees hired by William Lines to do repairs
and maintenance work on the vessel were also
present during the dry-docking.
On February 16, 1991, after subject vessel was
transferred to the docking quay, it caught fire and
sank, resulting to its eventual total loss.
On February 21, 1991, William Lines, Inc. filed a
complaint for damages against CSEW, alleging that
the fire which broke out in M/V Manila City was
caused by CSEWs negligence and lack of care.
On July 15, 1991 was filed an Amended Complaint
impleading Prudential as co-plaintiff, after the latter
had paid William Lines, Inc. the value of the hull and
machinery insurance on the M/V Manila City. As a
result of such payment Prudential was subrogated to
the claim of P45 million, representing the value of the
said insurance it paid.
On June 10, 1994, the trial court a quo came out with
a judgment against CSEW
CSEW (defendant below) appealed the aforesaid
decision to the Court of Appeals. During the
pendency of the appeal, CSEW and William Lines
presented a Joint Motion for Partial Dismissal with
prejudice, on the basis of the amicable settlement
inked between Cebu Shipyard and William Lines
only.
Petitioners version of the events that led to the fire runs as
follows:
On February 13, 1991, the CSEW completed the drydocking of
M/V Manila City at its grave dock. It was then transferred to the
docking quay of CSEW where the remaining repair to be done
was the replating of the top of Water Ballast Tank No. 12 (Tank
Top No. 12) which was subcontracted by CSEW to JNB
General Services. Tank Top No. 12 was at the rear section of
the vessel, on level with the flooring of the crew cabins located
on the vessels second deck.
At around seven o clock in the morning of February 16, 1991,
the JNB workers trimmed and cleaned the tank top framing
which involved minor hotworks (welding/cutting works). The
said work was completed at about 10:00 a. m. The JNB workers
then proceeded to rig the steel plates, after which they had their
lunch break. The rigging was resumed at 1:00 p.m.
While in the process of rigging the second steel plate, the JNB
workers noticed smoke coming from the passageway along the
crew cabins. When one of the workers, Mr. Casas, proceeded
to the passageway to ascertain the origin of the smoke, he
noticed that smoke was gathering on the ceiling of the
passageway but did not see any fire as the crew cabins on
either side of the passageway were locked. He immediately
sought out the proprietor of JNB, Mr. Buenavista, and the
Safety Officer of CSEW, Mr. Aves, who sounded the fire alarm.
CSEWs fire brigade immediately responded as well as the
other fire fighting units in Metro Cebu. However, there were no
WLI representative, officer or crew to guide the firemen inside
the vessel.
Despite the combined efforts of the firemen of the Lapulapu
City Fire Department, Mandaue Fire Department, Cordova Fire
Department, Emergency Rescue Unit Foundation, and fire
brigade of CSEW, the fire was not controlled until 2:00 a.m. of
the following day, February 17, 1991.
On the early morning of February 17, 1991, gusty winds
rekindled the flames on the vessel and fire again broke out.
Then the huge amounts of water pumped into the vessel,
coupled with the strong current, caused the vessel to tilt until it
capsized and sank
When M/V Manila City capsized, steel and angle bars were
noticed to have been newly welded along the port side of the
hull of the vessel, at the level of the crew cabins. William Lines
did not previously apply for a permit to do hotworks on the said
portion of the ship as it should have done pursuant to its work
order with CSEW.[5]
Respondent Prudential, on the other hand, theorized that
the fire broke out in the following manner :
At around eleven o clock in the morning of February 16, 1991,
the Chief Mate of M/V Manila City was inspecting the various
works being done by CSEW on the vessel, when he saw that
some workers of CSEW were cropping out steel plates on Tank
Top No. 12 using acetylene, oxygen and welding torch. He also
observed that the rubber insulation wire coming out of the air-
conditioning unit was already burning, prompting him to scold
the workers.
At 2:45 in the afternoon of the same day, witnesses saw smoke
coming from Tank No. 12. The vessels reeferman reported
such occurence to the Chief Mate who immediately assembled
the crew members to put out the fire. When it was too hot for
them to stay on board and seeing that the fire cannot be
controlled, the vessels crew were forced to withdraw from
CSEWs docking quay.
In the morning of February 17, 1991, M/V Manila City sank. As
the vessel was insured with Prudential Guarantee, William
Lines filed a claim for constructive total loss, and after a
thorough investigation of the surrounding circumstances of the
tragedy, Prudential Guarantee found the said insurance claim
to be meritorious and issued a check in favor of William Lines
in the amount of P45 million pesos representing the total value
of M/V Manila Citys hull and machinery insurance.
ISSUE:
Whether or not the doctrine of res ipsa loquitur can be
applied against CSEW.
RULING:
Petitioner CSEW faults the Court of Appeals for
adjudging it negligent and liable for damages to the
respondents, William Lines, Inc., and Prudential for the loss of
M/V Manila City. It is petitioners submission that the finding of
negligence by the Court of Appeals is not supported by the
evidence on record, and contrary to what the Court of Appeals
found, petitioner did not have management and control over
M/V Manila City. Although it was brought to the premises of
CSEW for annual repair, William Lines, Inc. retained control
over the vessel as the ship captain remained in command and
the ships crew were still present. While it imposed certain rules
and regulations on William Lines, it was in the exercise of due
diligence and not an indication of CSEWs exclusive control
over subject vessel. Thus, CSEW maintains that it did not have
exclusive control over the M/V Manila City and the trial court
and the Court of Appeals erred in applying the doctrine of res
ipsa loquitur.
Time and again, this Court had occasion to reiterate the well-
established rule that factual findings by the Court of Appeals
are conclusive on the parties and are not reviewable by this
Court. They are entitled to great weight and respect, even
finality, especially when, as in this case, the Court of Appeals
affirmed the factual findings arrived at by the trial court.[7]
When supported by sufficient evidence, findings of fact by the
Court of Appeals affirming those of the trial court, are not to be
disturbed on appeal. The rationale behind this doctrine is that
review of the findings of fact of the Court of Appeals is not a
function that the Supreme Court normally undertakes.[8]
Here, the Court of Appeals and the Cebu Regional Trial Court
of origin are agreed that the fire which caused the total loss of
subject M/V Manila City was due to the negligence of the
employees and workers of CSEW. Both courts found that the
M/V Manila City was under the custody and control of petitioner
CSEW, when the ill-fated vessel caught fire. ceThe decisions
of both the lower court and the Court of Appeals set forth clearly
the evidence sustaining their finding of actionable negligence
on the part of CSEW. This factual finding is accorded great
weight and is conclusive on the parties. The court discerns no
basis for disturbing such finding firmly anchored on enough
evidence. As held in the case of Roblett Industrial Construction
Corporation vs. Court of Appeals, in the absence of any
showing that the trial court failed to appreciate facts and
circumstances of weight and substance that would have altered
its conclusion, no compelling reason exists for the Court to
impinge upon matters more appropriately within its province.[9]
Furthermore, in petitions for review on certiorari, only questions
of law may be put into issue. Questions of fact cannot be
entertained. The finding of negligence by the Court of Appeals
is a question which this Court cannot look into as it would entail
going into factual matters on which the finding of negligence
was based. Such an approach cannot be allowed by this Court
in the absence of clear showing that the case falls under any of
the exceptions[10] to the well-established principle.
The finding by the trial court and the Court of Appeals that
M/V Manila City caught fire and sank by reason of the
negligence of the workers of CSEW, when the said vessel
was under the exclusive custody and control of CSEW is
accordingly upheld. Under the circumstances of the case,
the doctrine of res ipsa loquitur applies. For the doctrine
of res ipsa loquitur to apply to a given situation, the
following conditions must concur: (1) the accident was of
a kind which does not ordinarily occur unless someone is
negligent; and (2) that the instrumentality or agency which
caused the injury was under the exclusive control of the
person charged with negligence.
The facts and evidence on record reveal the concurrence
of said conditions in the case under scrutiny. First, the fire
that occurred and consumed M/V Manila City would not
have happened in the ordinary course of things if
reasonable care and diligence had been exercised. In other
words, some negligence must have occurred. Second, the
agency charged with negligence, as found by the trial
court and the Court of Appeals and as shown by the
records, is the herein petitioner, Cebu Shipyard and
Engineering Works, Inc., which had control over subject
vessel when it was docked for annual repairs. So also, as
found by the regional trial court, other responsible causes,
including the conduct of the plaintiff, and third persons,
are sufficiently eliminated by the evidence.
What is more, in the present case the trial court found
direct evidence to prove that the workers and/or
employees of CSEW were remiss in their duty of
exercising due diligence in the care of subject vessel. The
direct evidence substantiates the conclusion that CSEW
was really negligent. Thus, even without applying the
doctrine of res ipsa loquitur, in light of the direct evidence
on record, the ineluctable conclusion is that the petitioner,
Cebu Shipyard and Engineering Works, Inc., was negligent
and consequently liable for damages to the respondent,
William Lines, Inc.
Neither is there tenability in the contention of petitioner that the
Court of Appeals erroneously ruled on the inadmissibility of the
expert testimonies it (petitioner) introduced on the probable
cause and origin of the fire. Petitioner maintains that the Court
of Appeals erred in disregarding the testimonies of the fire
experts, Messrs. David Grey and Gregory Michael Southeard,
who testified on the probable origin of the fire in M/V Manila
City. Petitioner avers that since the said fire experts were one
in their opinion that the fire did not originate in the area of Tank
Top No. 12 where the JNB workers were doing hotworks but
on the crew accommodation cabins on the portside No. 2 deck,
the trial court and the Court of Appeals should have given
weight to such finding based on the testimonies of fire experts;
petitioner argues.
But courts are not bound by the testimonies of expert
witnesses. Although they may have probative value, reception
in evidence of expert testimonies is within the discretion of the
court. Section 49, Rule 130 of the Revised Rules of Court,
provides:

SEC. 49. Opinion of expert witness. - The opinion of a witness
on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.
The word may signifies that the use of opinion of an expert
witness as evidence is a prerogative of the courts. It is never
mandatory for judges to give substantial weight to expert
testimonies. If from the facts and evidence on record, a
conclusion is readily ascertainable, there is no need for the
judge to resort to expert opinion evidence. In the case under
consideration, the testimonies of the fire experts were not the
only available evidence on the probable cause and origin of the
fire. There were witnesses who were actually on board the
vessel when the fire occurred. Between the testimonies of the
fire experts who merely based their findings and opinions on
interviews and the testimonies of those present during the fire,
the latter are of more probative value. Verily, the trial court and
the Court of Appeals did not err in giving more weight to said
testimonies.
On the issue of subrogation, petitioner contends that Prudential
is not entitled to be subrogated to the rights of William Lines,
Inc., theorizing that (1) the fire which gutted M/V Manila City
was an excluded risk and (2) it is a co-assured under the
Marine Hull Insurance Policy.
It is petitioners submission that the loss of M/V Manila City or
damage thereto is expressly excluded from the coverage of the
insurance because the same resulted from want of due
diligence by the Assured, Owners or Managers which is not
included in the risks insured against. Again, this theory of
petitioner is bereft of any factual or legal basis. It proceeds from
a wrong premise that the fire which gutted subject vessel was
caused by the negligence of the employees of William Lines,
Inc. To repeat, the issue of who between the parties was
negligent has already been resolved against Cebu Shipyard
and Engineering Works, Inc. Upon proof of payment by
Prudential to William Lines, Inc., the former was subrogated to
the right of the latter to indemnification from CSEW. As aptly
ruled by the Court of Appeals, the law on the matter is succinct
and clear, to wit:
Art. 2207. If the plaintiffs property has been insured, and he has
received indemnity from the insurance company for the injury
or loss arising out of the wrong or breach of contract
complained of, the insurance company shall be subrogated to
the rights of the insured against the wrongdoer or the person
who has violated the contract. If the amount paid by the
insurance company does not fully cover the injury or loss, the
aggrieved party shall be entitled to recover the deficiency from
the person causing the loss or injury.[12]
Thus, when Prudential, after due verification of the merit and
validity of the insurance claim of William Lines, Inc., paid the
latter the total amount covered by its insurance policy, it was
subrogated to the right of the latter to recover the insured loss
from the liable party, CSEW.
Petitioner theorizes further that there can be no right of
subrogation as it is deemed a co-assured under the subject
insurance policy. To buttress its stance that it is a co-assured,
petitioner placed reliance on Clause 20 of of the Work Order
which states:
20. The insurance on the vessel should be maintained by the
customer and/or owner of the vessel during the period the
contract is in effect.[13]
According to petitioner, under the aforecited clause, William
Lines, Inc., agreed to assume the risk of loss of the vessel while
under drydock or repair and to such extent, it is benefited and
effectively constituted as a co-assured under the policy.
This theory of petitioner is devoid of sustainable merit. Clause
20 of the Work Order in question is clear in the sense that it
requires William Lines to maintain insurance on the vessel
during the period of dry-docking or repair. Concededly, such a
stipulation works to the benefit of CSEW as the shiprepairer.
However, the fact that CSEW benefits from the said stipulation
does not automatically make it as a co-assured of William
Lines. The intention of the parties to make each other a co-
assured under an insurance policy is to be gleaned principally
from the insurance contract or policy itself and not from any
other contract or agreement because the insurance policy
denominates the assured and the beneficiaries of the
insurance. The hull and machinery insurance procured by
William Lines, Inc. from Prudential named only William Lines,
Inc. as the assured. There was no manifestation of any
intention of William Lines, Inc. to constitute CSEW as a co-
assured under subject policy. It is axiomatic that when the
terms of a contract are clear its stipulations control.[14] Thus,
when the insurance policy involved named only William Lines,
Inc. as the assured thereunder, the claim of CSEW that it is a
co-assured is unfounded.
Then too, in the Additional Perils Clause of the same Marine
Insurance Policy, it is provided that:
Subject to the conditions of this Policy, this insurance also
covers loss of or damage to vessel directly caused by the
following:
xxx
Negligence of Charterers and/or Repairers, provided such
Charterers and/or Repairers are not an Assured hereunder.[15]
(emphasis supplied)
As correctly pointed out by respondent Prudential, if CSEW
were deemed a co-assured under the policy, it would nullify any
claim of William Lines, Inc. from Prudential for any loss or
damage caused by the negligence of CSEW. Certainly, no
shipowner would agree to make a shiprepairer a co-assured
under such insurance policy; otherwise, any claim for loss or
damage under the policy would be invalidated. Such result
could not have been intended by William Lines, Inc.
Finally, CSEW argues that even assuming that it was negligent
and therefore liable to William Lines, Inc., by stipulation in the
Contract or Work Order its liability is limited to One Million
(P1,000,000.00) Pesos only, and Prudential a mere subrogee
of William Lines, Inc., should only be entitled to collect the sum
stipulated in the said contract.
Although in this jurisdiction, contracts of adhesion have been
consistently upheld as valid per se; as binding as an ordinary
contract, the Court recognizes instances when reliance on such
contracts cannot be favored especially where the facts and
circumstances warrant that subject stipulations be
disregarded.[16] Thus, in ruling on the validity and applicability
of the stipulation limiting the liability of CSEW for negligence to
One Million (P1,000,000.00) Pesos only, the facts and
circumstances vis-a-vis the nature of the provision sought to be
enforced should be considered, bearing in mind the principles
of equity and fair play.
It is worthy to note that M/V Manila City was insured with
Prudential for Forty Five Million (P45,000,000.00) Pesos. To
determine the validity and sustainability of the claim of William
Lines, Inc., for a total loss, Prudential conducted its own inquiry.
Upon thorough investigation by its hull surveyor, M/V Manila
City was found to be beyond economical salvage and
repair.[17] The evaluation of the average adjuster also reported
a constructive total loss.[18] The said claim of William Lines,
Inc., was then found to be valid and compensable such that
Prudential paid the latter the total value of its insurance claim.
Furthermore, it was ascertained that the replacement cost of
the vessel (the price of a vessel similar to M/V Manila City),
amounts to Fifty-five Million (P55,000,000.00) Pesos.[19]
Considering the aforestated circumstances, let alone the fact
that negligence on the part of petitioner has been sufficiently
proven, it would indeed be unfair and inequitable to limit the
liability of petitioner to One Million Pesos only. As aptly held by
the trial court, it is rather unconscionable if not overstrained. To
allow CSEW to limit its liability to One Million Pesos
notwithstanding the fact that the total loss suffered by the
assured and paid for by Prudential amounted to Forty Five
Million (P45,000,000.00) Pesos would sanction the exercise of
a degree of diligence short of what is ordinarily required
because, then, it would not be difficult for petitioner to escape
liability by the simple expedient of paying an amount very much
lower than the actual damage or loss suffered by William Lines,
Inc.
WHEREFORE, for want of merit, the petition is hereby DENIED
and the decision, dated September 3, 1997, and Resolution,
dated February 13, 1998, of the Court of Appeals AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
RADIO COMMUNICATIONS v CA
Petitioner: Radio Communications of the Phils., Inc. (RCPI)
Respondents: Court of Appeals and Loreto Dionela
Docket No.: G.R. No. L-44748
Date of Promulgation: August 29, 1986
Ponente: Paras, J.
Topic: Res Ipsa Loquitur (Article 2179)
FACTS:
Nature: Petition for Review by certiorari
The basis of the complaint against the defendant
corporation is a telegram sent through its Manila
Office to the offended party, Loreto Dionela,
reading as follows:
176 AS JR 1215 PM 9PAID
MANDALUYONG JUL. 22-66
LORETO DIONELA
CABANGAN LEGASPI CITY
WIRE ARRIVAL OF CHECK
FER
LORETO DIOMELA-CABANGAN-WIRE
ARRIVAL OF CHECK-PER
115 PM
SA IYO WALANG PAKINABANG
DUMATING KA DIYANWALA KANG
PADALA DITOKAHIT BULBUL MO (p.
19, Annex A)
Dionela sued RCPI for damages.
Loreto Dionela
o alleges that the defamatory words on the
telegram sent to him not only wounded his
feelings but also caused him undue
embarrassment and affected adversely his
business as well because other people
have come to know of said defamatory
words.
RCPI
o as a defense, alleges that the additional
words in Tagalog was a private joke
between the sending and receiving
operators and that they were not addressed
to or intended for plaintiff and therefore did
not form part of the telegram and that the
Tagalog words are not defamatory.
o The telegram sent through its facilities was
received in its station at Legaspi City.
Nobody other than the operator manned the
teletype machine which automatically
receives telegrams being transmitted.
o The said telegram was detached from the
machine and placed inside a sealed
envelope and delivered to plaintiff,
obviously as is.
o The additional words in Tagalog were never
noticed and were included in the telegram
when delivered.
o also disclaimed liability as it insisted it
should be held liable for the libelous acts of
its employees.
Trial Court ruled in favor of Dionela stating that:
o There is no question that the additional
words in Tagalog are libelous; words clearly
impute a vice or defect of the plaintiff.
o Whether or not they were intended, the
effect on Dionela is the same.
o Any person reading the additional words in
Tagalog will naturally think that they refer to
the addressee, Dionela.
o No indication that the additional words in
Tagalog were sent as a private joke.
o RCPI is sued directly not as an employer;
its business is to transmit telegrams.
o If it can escape liability by the simple
expedient of showing that its employees
acted beyond the scope of their assigned
tasks, it will open the door to frauds and
allow the defendant to act with impunity
o Liability of RCPI is predicated not only on
Article 33 of the Civil Code of the
Philippines but on the following articles of
said Code:
ART. 19. Every person must, in the
exercise of his rights and in the
performance of his duties, act with
justice, give everyone his due, and
observe honesty and good faith.
ART. 20. Every person who, contrary
to law, wilfully or negligently causes
damage to another, shall indemnify
the latter for the same.
o There is sufficient publication of the libelous
Tagalog words because the copies of
telegrams received are open and held
together only by a metal fastener and are
open to view and inspection by third parties.
o Dionela is entitled to damages and
attorney's fees (P40,000.00 as the
reasonable amount of moral damages and
the amount of P3,000.00 as attorney's fee)
He is a businessman; the libelous
Tagalog words must have
affected his business and social
standing in the community.
The Court of Appeals affirmed the decision of the
trial court.
o The proximate cause, therefore, resulting in
injury to Dionela, was the failure of RCPI to
take the necessary or precautionary steps
to avoid the occurrence of the humiliating
incident now complained of.
o The company had not imposed any
safeguard against such eventualities and
this void in its operating procedure does not
speak well of its concern for their clientele's
interests.
o Negligence is very patent; is imputable to
appellant and not to its employees.
o Claim that there was no publication of the
libelous words in Tagalog is without merit.
A carbon copy of the telegram
was filed among other telegrams
and left to hang for the public to
see, open for inspection by a third
party is sufficient publication. It
would have been otherwise
perhaps had the telegram been
placed and kept in a secured
place where no one may have
had a chance to read it.
o The additional Tagalog words at the bottom
of the telegram are, as correctly found by
the lower court, libelous per se, and from
which malice may be presumed in the
absence of any showing of good intention
and justifiable motive on the part of the
appellant.
o The award of P40,000.00 as moral
damages is hereby reduced to P15,000.00
and for attorney's fees the amount of
P2,000.00 is awarded.
o MOTION FOR RECONSIDERATION:
DENIED
ISSUES:
Whether or not the Honorable Court of Appeals erred in holding
that
(1) Petitioner-employer should answer directly and primarily for
the civil liability arising from the criminal act of its employee.
(2) there was sufficient publication of the alleged libelous
telegram in question, as contemplated by law on libel.
(3) the liability of petitioner-company-employer is predicated on
Articles 19 and 20 of the Civil Code, Articles on Human
Relations.
(4) Petitioner is liable to pay damages.
HELD: NO, to all issues.
Petitioner's contentions do not merit our
consideration. The action for damages was filed in the lower
court directly against respondent corporation not as an
employer subsidiarily liable under the provisions of Article 1161
of the New Civil Code in relation to Art. 103 of the Revised
Penal Code. The cause of action of the private respondent is
based on Arts. 19 and 20 of the New Civil Code (supra). As
well as on respondent's breach of contract thru the negligence
of its own employees.
Petitioner is a domestic corporation engaged in the
business of receiving and transmitting messages. Everytime a
person transmits a message through the facilities of the
petitioner, a contract is entered into. Upon receipt of the rate or
fee fixed, the petitioner undertakes to transmit the message
accurately. There is no question that in the case at bar, libelous
matters were included in the message transmitted, without the
consent or knowledge of the sender. There is a clear case of
breach of contract by the petitioner in adding extraneous and
libelous matters in the message sent to the private respondent.
As a corporation, the petitioner can act only through its
employees. Hence the acts of its employees in receiving
and transmitting messages are the acts of the petitioner.
To hold that the petitioner is not liable directly for the acts of its
employees in the pursuit of petitioner's business is to deprive
the general public availing of the services of the petitioner of an
effective and adequate remedy. In most cases, negligence
must be proved in order that plaintiff may recover.
However, since negligence may be hard to substantiate in
some cases, we may apply the doctrine of RES IPSA
LOQUITUR (the thing speaks for itself), by considering the
presence of facts or circumstances surrounding the injury.
WHEREFORE, premises considered, the judgment
of the appellate court is hereby AFFIRMED.
E. ASSUMPTION OF RISK
Art. 2178. The provisions of Articles 1172 to 1174 are also
applicable to QD
Art. 1172. Responsibility arising from negligence in
the performance of every kind of obligation also
demandable, but such liability may be regulated by
the courts, according to the circumstances
Art. 1173. The fault or negligence of the obligation
consists in the omission of that diligence which is
required by the nature of the obligation and
corresponds with the circumstances of the persons,
of the time and of the place. When negligence shows
BF, the provisions of Arts. 1171 and 2201, par 2, shall
apply.
If the law or contract does not state the diligence
which is to be observed in the performance, that
which is expected of a good father of a family shall be
required.
Art. 1174. Except in cases expressly specified by the
law, or when it is otherwise declared by stipulation or
when the nature of the obligation requires the
assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which,
though foreseen were inevitable.
Assumption of Risk - a voluntary assumption of a risk of
harm arising from the negligent conduct of the defendant; it
presupposes an intentional exposure to a known peril
REPUBLIC v LUZON STEVEDORING CORPORATION
Petitioner: Republic of the Philippines
Respondents: Luzon Stevedoring Corporation
Docket No.: G.R. No. L-21749
Date of Promulgation: September 29, 1967
Ponente: Reyes, J.B.L., J.
Topic: Assumption of Risk (Article 2178)
FACTS:
Nature: Direct appeal
August 17, 1960 (early afternoon)
o Barge L-1892, owned by the Luzon
Stevedoring Corporation was being towed
down the Pasig river by tugboats "Bangus"
and "Barbero" also belonging to the same
corporation, when the barge rammed
against one of the wooden piles of the
Nagtahan bailey bridge, smashing the
posts and causing the bridge to list.
o The river, at the time, was swollen and the
current swift, on account of the heavy
downpour of Manila and the surrounding
provinces on August 15 and 16, 1960.
Sued by the Republic for actual and consequential
damage caused by its employees, amounting to
P200,000, defendant Luzon Stevedoring Corporation
disclaimed liability therefor, on the grounds that:
1. it had exercised due diligence in the
selection and supervision of its employees;
2. the damages to the bridge were caused
by force majeure;
3. plaintiff has no capacity to sue;
4. the Nagtahan bailey bridge is an
obstruction to navigation.
CFI Manila (June 11, 1963 Decision)
o Held the defendant liable for the damage
caused by its employees and ordering it to
pay to plaintiff the actual cost of the repair
of the Nagtahan bailey bridge which
amounted to P192,561.72, with legal
interest thereon from the date of the filing of
the complaint.
Hence, this appeal.
ISSUES:
I. Whether or not the collision of appellant's barge
with the supports or piers of the Nagtahan bridge
was in law caused by fortuitous event or force
majeure, and
II. Whether or not it was error for the Court to have
permitted the plaintiff-appellee to introduce additional
evidence of damages after said party had rested its
case.
HELD: (Issue #1 ang focused sa Torts kaya yun naka-
highlight kaso medyo maiksi lang din yung iba, baka bigla
pa nya itanong kaya isinama ko na)
I. No.
As to the first question, considering that the
Nagtahan bridge was an immovable and stationary
object and uncontrovertedly provided with adequate
openings for the passage of water craft, including
barges like of appellant's, it is undeniable that the
unusual event that the barge, exclusively controlled
by appellant, rammed the bridge supports raises a
presumption of negligence on the part of appellant or
its employees manning the barge or the tugs that
towed it. For in the ordinary course of events, such a
thing does not happen if proper care is used. In Anglo
American Jurisprudence, the inference arises by
what is known as the "res ipsa loquitur" rule.
The appellant strongly stresses the
precautions taken by it on the day in question: that it
assigned two of its most powerful tugboats to tow
down river its barge L-1892; that it assigned to the
task the more competent and experienced among
its patrons, had the towlines, engines and equipment
double-checked and inspected; that it instructed
its patrons to take extra precautions; and concludes
that it had done all it was called to do, and that the
accident, therefore, should be held due to force
majeure or fortuitous event.
These very precautions, however,
completely destroy the appellant's defense. For caso
fortuito or force majeure (which in law are
identical in so far as they exempt an obligor from
liability) by definition, are extraordinary events
not foreseeable or avoidable, "events that could
not be foreseen, or which, though foreseen, were
inevitable" (Art. 1174, Civ. Code of the Philippines).
It is, therefore, not enough that the event should
not have been foreseen or anticipated, as is
commonly believed, but it must be one
impossible to foresee or to avoid. The
mere difficulty to foresee the happening is not
impossibility to foresee the same: "an act does
not constitute a fortuitous event on the sole
circumstance that its existence makes more
difficult or more burdensome the diligent action
of the present offender". The very measures
adopted by appellant prove that the possibility of
danger was not only foreseeable, but actually
foreseen, and was not a caso fortuito.
Otherwise stated, the appellant, Luzon
Stevedoring Corporation, knowing and appreciating
the perils posed by the swollen stream and its swift
current, voluntarily entered into a situation involving
obvious danger; it therefore assured the risk, and
cannot shed responsibility merely because the
precautions it adopted turned out to be insufficient.
Hence, the lower Court committed no error in holding
it negligent in not suspending operations and in
holding it liable for the damages caused.
It avails the appellant naught to argue that
the dolphins, like the bridge, were improperly located.
Even if true, these circumstances would merely
emphasize the need of even higher degree of care
on appellant's part in the situation involved in the
present case. The appellant, whose barges and
tugs travel up and down the river everyday, could
not safely ignore the danger posed by these
allegedly improper constructions that had been
erected, and in place, for years.
 II. No.
On the second point: appellant charges the
lower court with having abused its discretion in the
admission of plaintiff's additional evidence after the
latter had rested its case. There is an insinuation that
the delay was deliberate to enable the manipulation
of evidence to prejudice defendant-appellant.
We find no merit in the contention. Whether
or not further evidence will be allowed after a party
offering the evidence has rested his case, lies within
the sound discretion of the trial Judge, and this
discretion will not be reviewed except in clear case of
abuse.
In the present case, no abuse of that
discretion is shown. What was allowed to be
introduced, after plaintiff had rested its evidence in
chief, were vouchers and papers to support an item
of P1,558.00 allegedly spent for the reinforcement of
the panel of the bailey bridge, and which item already
appeared in Exhibit GG. Appellant, in fact, has no
reason to charge the trial court of being unfair,
because it was also able to secure, upon written
motion, a similar order dated November 24, 1962,
allowing reception of additional evidence for the said
defendant-appellant.
WHEREFORE, finding no error in the decision of the
lower Court appealed from, the same is hereby affirmed. Costs
against the defendant-appellant.
DIOQUINO v LAUREANO
Petitioner: Pedro D. Dioquino
Respondents: Federico Laureano, Aida De Laureano and
Juanito Laureano
Docket No.: G.R. No. L-25906
Date of Promulgation: May 28, 1970
Ponente: Fernando, J.
Topic: Assumption of Risk (Article 2178)
FACTS:
Nature: Direct appeal
Attorney Pedro Dioquino, a practicing lawyer of
Masbate, is the owner of a car.
March 31, 1964
o He went to the office of the Motor Vehicles
Office (MVO), Masbate, to register the car.
o He met the defendant Federico Laureano,
a patrol officer of said MVO office, who was
waiting for a jeepney to take him to the
office of the Provincial Commander, PC,
Masbate.
o Attorney Dioquino requested the defendant
Federico Laureano to introduce him to one
of the clerks in the MVO Office, who could
facilitate the registration of his car and the
request was graciously attended to.
o Defendant Laureano rode on the car of Atty.
Dioquino on his way to the P.C. Barracks at
Masbate.
o While about to reach their destination,
the car driven by Dioquino's driver and
with defendant Federico Laureano as
the sole passenger was stoned by some
'mischievous boys,' and its windshield
was broken.
o Defendant Federico Laureano chased the
boys and he was able to catch one of them.
o The boy was taken to Atty. Dioquino who
admitted having thrown the stone that broke
the car's windshield.
o The plaintiff and the defendant Federico
Laureano with the boy returned to the P.C.
barracks and the father of the boy was
called, but no satisfactory arrangements
were made about the damage to
the windshield.
The defendant Federico Laureano refused to file any
charges against the boy and his parents because he
thought that the stone-throwing was merely
accidental and that it was due to force majeure.
So he did not want to take any action and after
delaying the settlement, after perhaps consulting a
lawyer, Federico Laureano refused to pay the
windshield himself and challenged that the case be
brought to court for judicial adjudication.
Dioquino tried to convince Federico Laureano
just to pay the value of the windshield and he
even came to the extent of asking the wife to
convince her husband to settle the matter
amicably but the defendant Federico Laureano
refused to make any settlement, clinging to the
belief that he could not be held liable because a
minor child threw a stone accidentally on the
windshield and therefore, the same was due
to force majeure.
Dioquino filed an action for damages in CFI against
Laureano.
CFI ruled in favor of Dioquino, but only made
Laureano pay not his wife and father.
ISSUE:
1. Whether or not the incident can be attributed to
force majeure.
2. Whether or not Aida De Laureano and Juanito
Laureano are also liable.
HELD:
1. YES.
The law being what it is, such a belief on the
part of defendant Federico Laureano was justified.
The express language of Art. 1174 of the present Civil
Code which is a restatement of Art. 1105 of the Old
Civil Code, except for the addition of the nature of an
obligation requiring the assumption of risk, compels
such a conclusion. It reads thus: "Except in cases
expressly specified by the law, or when it is
otherwise declared by stipulation, or when the
nature of the obligation requires the assumption
of risk, no person shall be responsible for those
events which could not be, foreseen, or which,
though foreseen were inevitable." Even under the
old Civil Code then, as stressed by us in the first
decision dating back to 1908, in an opinion by Justice
Mapa, the rule was well-settled that in the absence of
a legal provision or an express covenant, "no one
should be held to account for fortuitous cases." Its
basis, as Justice Moreland stressed, is the Roman
law principle major casus est, cui humana infirmitas
resistere non potest (it is a greater cause which
human weakness cannot resist; where there is great
destruction or disaster, human weakness cannot
stand still or halt). Authorities of repute are in
agreement, more specifically concerning an
obligation arising from contract "that some
extraordinary circumstance independent of the will of
the obligor, or of his employees, is an essential
element of a caso fortuito." If it could be shown that
such indeed was the case, liability is ruled out. There
is no requirement of "diligence beyond what human
care and foresight can provide."
The error committed by the lower court in
holding defendant Federico Laureano liable appears
to be thus obvious. Its own findings of fact repel the
motion that he should be made to respond in
damages to the plaintiff for the broken windshield.
What happened was clearly unforeseen. It was a
fortuitous event resulting in a loss which must be
borne by the owner of the car. An element of
reasonableness in the law would be manifestly
lacking if, on the circumstances as thus disclosed,
legal responsibility could be imputed to an individual
in the situation of defendant Laureano. Art. 1174 of
the Civil Code guards against the possibility of its
being visited with such a reproach. Unfortunately, the
lower court was of a different mind and thus failed to
heed its command.
It was misled, apparently, by the inclusion
of the exemption from the operation of such a
provision of a party assuming the risk, considering the
nature of the obligation undertaken. A more careful
analysis would have led the lower court to a different
and correct interpretation. The very wording of the
law dispels any doubt that what is therein
contemplated is the resulting liability even if caused
by a fortuitous event where the party charged may be
considered as having assumed the risk incident in the
nature of the obligation to be performed. It would be
an affront, not only to the logic but to the realities of
the situation, if in the light of what transpired, as found
by the lower court, defendant Federico Laureano
could be held as bound to assume a risk of this
nature. There was no such obligation on his part.
 Reference to the leading case of Republic a pecuniary loss which, while resulting from a
v. Luzon Stevedoring Corp. will illustrate when the fortuitous event, perhaps would not have
nature of the obligation is such that the risk could be occurred at all had not defendant Federico
considered as having been assumed. As noted in the Laureano borrowed his car, we, feel that he is not
opinion of Justice J.B.L. Reyes, speaking for the to be penalized further by his mistaken view of
Court: "The appellant strongly stresses the the law in including them in his complaint. Well-
precautions taken by it on the day in question: that it worth paraphrasing is the thought expressed in a
assigned two of its most powerful tugboats to tow United States Supreme Court decision as to the
down river its barge L-1892; that it assigned to the existence of an abiding and fundamental principle
task the more competent and experienced among its that the expenses and annoyance of litigation form
patrons, had the towlines, engines and equipment part of the social burden of living in a society which
double-checked and inspected; that it instructed seeks to attain social control through law.
its patrons to take extra-precautions; and concludes
that it had done all it was called to do, and that the WHEREFORE, the decision of the lower court of
accident, therefore, should be held due to force
November 2, 1965 insofar as it orders defendant Federico
majeure or fortuitous event." Laureano to pay plaintiff the amount of P30,000.00 as
Its next paragraph explained clearly why damages plus the payment of costs, is hereby reversed. It is
the defense of caso fortuito or force majeure does affirmed insofar as it dismissed the case against the other two
not lie. Thus: "These very precautions, however, defendants, Juanita Laureano and Aida de Laureano, and
completely destroy the appellant's defense. For caso declared that no moral damages should be awarded the
fortuito or force majeure (which in law are identical in parties. Without pronouncement as to costs.
so far as they exempt an obligor from liability) by
definition, are extraordinary events not foreseeable or
avoidable, 'events that could not be foreseen, or
which, though foreseen, were inevitable' (Art. 1174,
Civil Code of the Philippines). It is, therefore, not
enough that the event should not have been foreseen
or participated, as is commonly believed, but it must
be one impossible to foresee or to avoid. The mere
difficulty to foresee the happening is not impossibility
to foresee the same: an act does not constitute a
fortuitous event on the sole circumstance that its
existence makes more difficult or more burdensome
the diligent action of the present offender. The very
measures adopted by appellant prove that the
possibility of danger was not only foreseeable, but
actually foreseen, and was not caso fortuito."
In that case then, the risk was quite evident
and the nature of the obligation such that a party
could rightfully be deemed as having assumed it. It is
not so in the case before us. It is anything but that. If
the lower court, therefore, were duly mindful of what
this particular legal provision contemplates, it could
not have reached the conclusion that defendant
Federico Laureano could be held liable. To repeat,
that was clear error on its part.

2. No.
Appellants do not stop there. It does not
suffice for them that defendant Federico Laureano
would be freed from liability. They would go farther.
They would take plaintiff to task for his complaint
having joined the wife, Aida de Laureano, and the
father, Juanita Laureano. They were far from satisfied
with the lower court's absolving these two from any
financial responsibility. Appellants would have
plaintiff pay damages for their inclusion in this
litigation. We are not disposed to view the matter
thus.
It is to be admitted, of course, that plaintiff,
who is a member of the bar, ought to have exercised
greater care in selecting the parties against whom he
would proceed. It may be said that his view of the law
that would consider defendant Federico Laureano
liable on the facts as thus disclosed, while erroneous,
is not bereft of plausibility. Even the lower court,
mistakenly of course, entertained similar view. For
plaintiff, however, to have included the wife and the
father would seem to indicate that his understanding
of the law is not all that it ought to have been.
Plaintiff apparently was not entirely
unaware that the inclusion in the suit filed by him was
characterized by unorthodoxy. He did attempt to lend
some color of justification by explicitly setting forth
that the father was joined as party defendant in the
case as he was the administrator of the inheritance of
an undivided property to which defendant Federico
Laureano could lay claim and that the wife was
likewise proceeded against because the conjugal
partnership would be made to respond for whatever
liability would be adjudicated against the husband.
It cannot be said that such an attempt at
justification is impressed with a high persuasive
quality. Far from it. Nonetheless, mistaken as plaintiff
apparently was, it cannot be concluded that he was
prompted solely by the desire to inflict needless and
unjustified vexation on them. Considering the
equities of the situation, plaintiff having suffered