D.

M. CONSUNJI, INC., petitioner,

vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

KAPUNAN, J.:

At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M. Consunji,
Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.

PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a report
dated November 25, 1990, stating that:

x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro Manila
where he was pronounced dead on arrival (DOA) by the attending physician, Dr. Errol de
Yzo[,] at around 2:15 p.m. of the same date.

Investigation disclosed that at the given time, date and place, while victim Jose A. Juego
together with Jessie Jaluag and Delso Destajo [were] performing their work as
carpenter[s] at the elevator core of the 14th floor of the Tower D, Renaissance Tower
Building on board a [p]latform made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires attached to its four corners
and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform, got loose xxx causing the whole
[p]latform assembly and the victim to fall down to the basement of the elevator core,
Tower D of the building under construction thereby crushing the victim of death, save
his two (2) companions who luckily jumped out for safety.

It is thus manifest that Jose A. Juego was crushed to death when the [p]latform he was
then on board and performing work, fell. And the falling of the [p]latform was due to
the removal or getting loose of the pin which was merely inserted to the connecting
points of the chain block and [p]latform but without a safety lock.1

On May 9, 1991, Jose Juego’s widow, Maria, filed in the Regional Trial Court (RTC) of Pasig a
complaint for damages against the deceased’s employer, D.M. Consunji, Inc. The employer
raised, among other defenses, the widow’s prior availment of the benefits from the State
Insurance Fund.

After trial, the RTC rendered a decision in favor of the widow Maria Juego. The dispositive
portion of the RTC decision reads:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff, as

follows:

1. P50,000.00 for the death of Jose A. Juego.

2. P10,000.00 as actual and compensatory damages.

 3. P464,000.00 for the loss of Jose A. Juego’s earning capacity.

4. P100,000.00 as moral damages.

5. P20,000.00 as attorney’s fees, plus the costs of suit.

SO ORDERED.2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the RTC in toto.

D. M. Consunji now seeks the reversal of the CA decision on the following grounds:

• THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE REPORT WAS
ADMISSIBLE EVIDENCE OF THE ALLEGED NEGLIGENCE OF PETITIONER.

• THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE OF RES IPSA
LOQUITOR[sic] IS APPLICABLE TO PROVE NEGLIGENCE ON THE PART OF
PETITIONER.

• THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS PRESUMED

NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL CODE, AND

• THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT IS NOT

PRECLUDED FROM RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official records,
is an exception to the hearsay rule.

The Rules of Court provide that a witness can testify only to those facts which he knows of his
personal knowledge, that is, which are derived from his perception.4 A witness, therefore, may
not testify as what he merely learned from others either because he was told or read or heard
the same. Such testimony is considered hearsay and may not be received as proof of the truth of
what he has learned.5 This is known as the hearsay rule.

Hearsay is not limited to oral testimony or statements; the general rule that excludes hearsay as
evidence applies to written, as well as oral statements.6

The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of
error and untrustworthiness, which lie underneath the bare untested assertion of a witness,
may be best brought to light and exposed by the test of cross-examiantion.7 The hearsay rule,
therefore, excludes evidence that cannot be tested by cross-examination.8

The Rules of Court allow several exceptions to the rule,9 among which are entries in official
records. Section 44, Rule 130 provides:
 Entries in official records made in the performance of his duty 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 facieevidence of the facts therein stated.

In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court, citing the work of Chief Justice Moran,
enumerated the requisites for admissibility under the above rule:

(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.

The CA held that the police report meets all these requisites. Petitioner contends that the last
requisite is not present.

The Court notes that PO3 Villanueva, who signed the report in question, also testified before the
trial court. In Rodriguez vs. Court of Appeals,11 which involved a Fire Investigation Report, the
officer who signed the fire report also testified before the trial court. This Court held that the
report was inadmissible for the purpose of proving the truth of the statements contained in the
report but admissible insofar as it constitutes part of the testimony of the officer who executed
the report.

x x x. Since Major Enriquez himself took the witness stand and was available for cross-
examination, the portions of the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not hearsay. The rest of the report,
such as the summary of the statements of the parties based on their sworn statements
(which were annexed to the Report) as well as the latter, having been included in the
first purpose of the offer [as part of the testimony of Major Enriquez], may then be
considered as independently relevant statements which were gathered in the course of
the investigation and may thus be admitted as such, but not necessarily to prove the
truth thereof. It has been said that:

"Where regardless of the truth or falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be
shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact in issue, or be
circumstantially relevant as to the existence of such a fact."

When Major Enriquez took the witness stand, testified for petitioners on his Report and
made himself available for cross-examination by the adverse party, the Report, insofar
as it proved that certain utterances were made (but not their truth), was effectively
removed from the ambit of the aforementioned Section 44 of Rule 130. Properly
 understood, this section does away with the testimony in open court of the officer who
made the official record, considers the matter as an exception to the hearsay rule and
makes the entries in said official record admissible in evidence as prima facie evidence
of the facts therein stated. The underlying reasons for this exceptionary rule are
necessity and trustworthiness, as explained in Antillon v. Barcelon.

The litigation is unlimited in which testimony by officials is daily needed; the

occasions in which the officials would be summoned from his ordinary duties to
declare as a witness are numberless. The public officers are few in whose daily
work something is not done in which testimony is not needed from official
sources. Were there no exception for official statements, hosts of officials would
be found devoting the greater part of their time to attending as witnesses in
court or delivering deposition before an officer. The work of administration of
government and the interest of the public having business with officials would
alike suffer in consequence. For these reasons, and for many others, a certain
verity is accorded such documents, which is not extended to private documents.
(3 Wigmore on Evidence, Sec. 1631).

The law reposes a particular confidence in public officers that it presumes they
will discharge their several trusts with accuracy and fidelity; and, therefore,
whatever acts they do in discharge of their duty may be given in evidence and
shall be taken to be true under such a degree of caution as to the nature and
circumstances of each case may appear to require.

It would have been an entirely different matter if Major Enriquez was not presented to
testify on his report. In that case the applicability of Section 44 of Rule 143 would have
been ripe for determination, and this Court would have agreed with the Court of
Appeals that said report was inadmissible since the aforementioned third requisite was
not satisfied. The statements given by the sources of information of Major Enriquez
failed to qualify as "official information," there being no showing that, at the very least,
they were under a duty to give the statements for record.

Similarly, the police report in this case is inadmissible for the purpose of proving the truth of the
statements contained therein but is admissible insofar as it constitutes part of the testimony of
PO3 Villanueva.

In any case, the Court holds that portions of PO3 Villanueva’s testimony which were of his
personal knowledge suffice to prove that Jose Juego indeed died as a result of the elevator
crash. PO3 Villanueva had seen Juego’s remains at the morgue,12 making the latter’s death
beyond dispute. PO3 Villanueva also conducted an ocular inspection of the premises of the
building the day after the incident13 and saw the platform for himself.14 He observed that the
platform was crushed15 and that it was totally damaged.16 PO3 Villanueva also required Garcia
and Fabro to bring the chain block to the police headquarters. Upon inspection, he noticed that
the chain was detached from the lifting machine, without any pin or bolt.17

What petitioner takes particular exception to is PO3 Villanueva’s testimony that the cause of the
fall of the platform was the loosening of the bolt from the chain block. It is claimed that such
portion of the testimony is mere opinion. Subject to certain exceptions,18 the opinion of a
witness is generally not admissible.19

Petitioner’s contention, however, loses relevance in the face of the application of res ipsa
loquitur by the CA. The effect of the doctrine is to warrant a presumption or inference that the
mere fall of the elevator was a result of the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of negligence.20

The concept of res ipsa loquitur has been explained in this wise:

While negligence is not ordinarily inferred or presumed, and while the mere happening
of an accident or injury will not generally give rise to an inference or presumption that it
was due to negligence on defendant’s part, under the doctrine of res ipsa loquitur,
which means, literally, the thing or transaction speaks for itself, or in one jurisdiction,
that the thing or instrumentality speaks for itself, the facts or circumstances
accompanying an injury may be such as to raise a presumption, or at least permit an
inference of negligence on the part of the defendant, or some other person who is
charged with negligence.

x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that the
occurrence resulting in the injury was such as in the ordinary course of things would not
happen if those who had its control or management used proper care, there is sufficient
evidence, or, as sometimes stated, reasonable evidence, in the absence of explanation
by the defendant, that the injury arose from or was caused by the defendant’s want of
care.21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary evidence is
absent or not available.22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant in
charge of the instrumentality which causes the injury either knows the cause of the
accident or has the best opportunity of ascertaining it and that the plaintiff has no such
knowledge, and therefore is compelled to allege negligence in general terms and to rely
upon the proof of the happening of the accident in order to establish negligence. The
inference which the doctrine permits is grounded upon the fact that the chief evidence
of the true cause, whether culpable or innocent, is practically accessible to the
defendant but inaccessible to the injured person.

It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a
plaintiff, without knowledge of the cause, reaches over to defendant who knows or
should know the cause, for any explanation of care exercised by the defendant in
respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine,
another court has said, is a rule of necessity, in that it proceeds on the theory that under
the peculiar circumstances in which the doctrine is applicable, it is within the power of
 the defendant to show that there was no negligence on his part, and direct proof of
defendant’s negligence is beyond plaintiff’s power. Accordingly, some court add to the
three prerequisites for the application of the res ipsa loquitur doctrine the further
requirement that for the res ipsa loquitur doctrine to apply, it must appear that the
injured party had no knowledge or means of knowledge as to the cause of the accident,
or that the party to be charged with negligence has superior knowledge or opportunity
for explanation of the accident.23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellee’s husband fell down from the 14th floor of a building to
the basement while he was working with appellant’s construction project, resulting to
his death. The construction site is within the exclusive control and management of
appellant. It has a safety engineer, a project superintendent, a carpenter leadman and
others who are in complete control of the situation therein. The circumstances of any
accident that would occur therein are peculiarly within the knowledge of the appellant
or its employees. On the other hand, the appellee is not in a position to know what
caused the accident. Res ipsa loquitur is a rule of necessity and it applies where
evidence is absent or not readily available, provided the following requisites are
present: (1) the accident was of a kind which does not ordinarily occur unless someone
is negligent; (2) the instrumentality or agency which caused the injury was under the
exclusive control of the person charged with negligence; and (3) the injury suffered
must not have been due to any voluntary action or contribution on the part of the
person injured. x x x.

No worker is going to fall from the 14th floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the first
requisite for the application of the rule of res ipsa loquitur is present. As explained
earlier, the construction site with all its paraphernalia and human resources that likely
caused the injury is under the exclusive control and management of appellant[;] thus[,]
the second requisite is also present. No contributory negligence was attributed to the
appellee’s deceased husband[;] thus[,] the last requisite is also present. All the
requisites for the application of the rule of res ipsa loquitur are present, thus a
reasonable presumption or inference of appellant’s negligence arises. x x x.24

Petitioner does not dispute the existence of the requisites for the application of res ipsa
loquitur, but argues that the presumption or inference that it was negligent did not arise since it
"proved that it exercised due care to avoid the accident which befell respondent’s husband."

Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the
defendant’s negligence is presumed or inferred25 when the plaintiff establishes the requisites for
the application of res ipsa loquitur. Once the plaintiff makes out a prima facie case of all the
elements, the burden then shifts to defendant to explain.26 The presumption or inference may
be rebutted or overcome by other evidence and, under appropriate circumstances disputable
presumption, such as that of due care or innocence, may outweigh the inference.27 It is not for
the defendant to explain or prove its defense to prevent the presumption or inference from
arising. Evidence by the defendant of say, due care, comes into play only after the circumstances
for the application of the doctrine has been established.1âwphi1.nêt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro executed
before the police investigator as evidence of its due care. According to Fabro’s sworn statement,
the company enacted rules and regulations for the safety and security of its workers. Moreover,
the leadman and the bodegero inspect the chain block before allowing its use.

It is ironic that petitioner relies on Fabro’s sworn statement as proof of its due care but, in
arguing that private respondent failed to prove negligence on the part of petitioner’s
employees, also assails the same statement for being hearsay.

Petitioner is correct. Fabro’s sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the witness
stand to testify thereon.28 The inadmissibility of this sort of evidence is based not only on the
lack of opportunity on the part of the adverse party to cross-examine the affiant, but also on the
commonly known fact that, generally, an affidavit is not prepared by the affiant himself but by
another who uses his own language in writing the affiant’s statements which may either be
omitted or misunderstood by the one writing them.29 Petitioner, therefore, cannot use said
statement as proof of its due care any more than private respondent can use it to prove the
cause of her husband’s death. Regrettably, petitioner does not cite any other evidence to rebut
the inference or presumption of negligence arising from the application of res ipsa loquitur, or
to establish any defense relating to the incident.

Next, petitioner argues that private respondent had previously availed of the death benefits
provided under the Labor Code and is, therefore, precluded from claiming from the deceased’s
employer damages under the Civil Code.

Article 173 of the Labor Code states:

Article 173. Extent of liability. – Unless otherwise provided, the liability of the State
Insurance Fund under this Title shall be exclusive and in place of all other liabilities of
the employer to the employee, his dependents or anyone otherwise entitled to receive
damages on behalf of the employee or his dependents. The payment of compensation
under this Title shall not bar the recovery of benefits as provided for in Section 699 of
the Revised Administrative Code, Republic Act Numbered Eleven hundred sixty-one, as
amended, Republic Act Numbered Six hundred ten, as amended, Republic Act
Numbered Forty-eight hundred sixty-four as amended, and other laws whose benefits
are administered by the System or by other agencies of the government.

The precursor of Article 173 of the Labor Code, Section 5 of the Workmen’s Compensation Act,
provided that:

Section 5. Exclusive right to compensation. – The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil Code
and other laws because of said injury x x x.
Whether Section 5 of the Workmen’s Compensation Act allowed recovery under said Act as well
as under the Civil Code used to be the subject of conflicting decisions. The Court finally settled
the matter in Floresca vs.Philex Mining Corporation,30 which involved a cave-in resulting in the
death of the employees of the Philex Mining Corporation. Alleging that the mining corporation,
in violation of government rules and regulations, failed to take the required precautions for the
protection of the employees, the heirs of the deceased employees filed a complaint against
Philex Mining in the Court of First Instance (CFI). Upon motion of Philex Mining, the CFI
dismissed the complaint for lack of jurisdiction. The heirs sought relief from this Court.

Addressing the issue of whether the heirs had a choice of remedies, majority of the Court En
Banc,31 following the rule in Pacaña vs. Cebu Autobus Company, held in the affirmative.

WE now come to the query as to whether or not the injured employee or his heirs in
case of death have a right of selection or choice of action between availing themselves
of the worker’s right under the Workmen’s Compensation Act and suing in the regular
courts under the Civil Code for higher damages (actual, moral and exemplary) from the
employers by virtue of the negligence or fault of the employers or whether they may
avail themselves cumulatively of both actions, i.e., collect the limited compensation
under the Workmen’s Compensation Act and sue in addition for damages in the regular
courts.

In disposing of a similar issue, this Court in Pacaña vs. Cebu Autobus Company, 32 SCRA
442, ruled that an injured worker has a choice of either to recover from the employer
the fixed amounts set by the Workmen’s Compensation Act or to prosecute an ordinary
civil action against the tortfeasor for higher damages but he cannot pursue both courses
of action simultaneously. [Underscoring supplied.]

Nevertheless, the Court allowed some of the petitioners in said case to proceed with their suit
under the Civil Code despite having availed of the benefits provided under the Workmen’s
Compensation Act. The Court reasoned:

With regard to the other petitioners, it was alleged by Philex in its motion to dismiss
dated May 14, 1968 before the court a quo, that the heirs of the deceased employees,
namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino
submitted notices and claims for compensation to the Regional Office No. 1 of the then
Department of Labor and all of them have been paid in full as of August 25, 1967, except
Saturnino Martinez whose heirs decided that they be paid in installments x x x. Such
allegation was admitted by herein petitioners in their opposition to the motion to
dismiss dated may 27, 1968 x x x in the lower court, but they set up the defense that the
claims were filed under the Workmen’s Compensation Act before they learned of the
official report of the committee created to investigate the accident which established
the criminal negligence and violation of law by Philex, and which report was forwarded
by the Director of Mines to then Executive Secretary Rafael Salas in a letter dated
October 19, 1967 only x x x.

WE hold that although the other petitioners had received the benefits under the
Workmen’s Compensation Act, such my not preclude them from bringing an action
before the regular court because they became cognizant of the fact that Philex has been
 remiss in its contractual obligations with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware of said violation of
government rules and regulations by Philex, and of its negligence, they would not have
sought redress under the Workmen’s Compensation Commission which awarded a
lesser amount for compensation. The choice of the first remedy was based on ignorance
or a mistake of fact, which nullifies the choice as it was not an intelligent choice. The
case should therefore be remanded to the lower court for further proceedings.
However, should the petitioners be successful in their bid before the lower court, the
payments made under the Workmen’s Compensation Act should be deducted from the
damages that may be decreed in their favor. [Underscoring supplied.]

The ruling in Floresca providing the claimant a choice of remedies was reiterated in Ysmael
Maritime Corporation vs. Avelino,32 Vda. De Severo vs. Feliciano-Go,33 and Marcopper Mining
Corp. vs. Abeleda.34 In the last case, the Court again recognized that a claimant who had been
paid under the Act could still sue under the Civil Code. The Court said:

In the Robles case, it was held that claims for damages sustained by workers in the
course of their employment could be filed only under the Workmen’s Compensation
Law, to the exclusion of all further claims under other laws. In Floresca, this doctrine
was abrogated in favor of the new rule that the claimants may invoke either the
Workmen’s Compensation Act or the provisions of the Civil Code, subject to the
consequence that the choice of one remedy will exclude the other and that the
acceptance of compensation under the remedy chosen will preclude a claim for
additional benefits under the other remedy. The exception is where a claimant who has
already been paid under the Workmen’s Compensation Act may still sue for damages
under the Civil Code on the basis of supervening facts or developments occurring after
he opted for the first remedy. (Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because private
respondent was unaware of petitioner’s negligence when she filed her claim for death benefits
from the State Insurance Fund. Private respondent filed the civil complaint for damages after
she received a copy of the police investigation report and the Prosecutor’s Memorandum
dismissing the criminal complaint against petitioner’s personnel. While stating that there was no
negligence attributable to the respondents in the complaint, the prosecutor nevertheless noted
in the Memorandum that, "if at all," the "case is civil in nature." The CA thus applied the
exception in Floresca:

x x x We do not agree that appellee has knowledge of the alleged negligence of

appellant as early as November 25, 1990, the date of the police investigator’s report.
The appellee merely executed her sworn statement before the police investigator
concerning her personal circumstances, her relation to the victim, and her knowledge of
the accident. She did not file the complaint for "Simple Negligence Resulting to
Homicide" against appellant’s employees. It was the investigator who recommended
the filing of said case and his supervisor referred the same to the prosecutor’s office.
This is a standard operating procedure for police investigators which appellee may not
have even known. This may explain why no complainant is mentioned in the preliminary
statement of the public prosecutor in her memorandum dated February 6, 1991, to wit:
"Respondent Ferdinand Fabro x x x are being charged by complainant of "Simple
 Negligence Resulting to Homicide." It is also possible that the appellee did not have a
chance to appear before the public prosecutor as can be inferred from the following
statement in said memorandum: "Respondents who were notified pursuant to Law
waived their rights to present controverting evidence," thus there was no reason for the
public prosecutor to summon the appellee. Hence, notice of appellant’s negligence
cannot be imputed on appellee before she applied for death benefits under ECC or
before she received the first payment therefrom. Her using the police investigation
report to support her complaint filed on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of the Prosecutor’s Office
dismissing the criminal complaint for insufficiency of evidence, stating therein that: "The
death of the victim is not attributable to any negligence on the part of the respondents.
If at all and as shown by the records this case is civil in nature." (Underscoring supplied.)
Considering the foregoing, We are more inclined to believe appellee’s allegation that
she learned about appellant’s negligence only after she applied for and received the
benefits under ECC. This is a mistake of fact that will make this case fall under the
exception held in the Floresca ruling.35

The CA further held that not only was private respondent ignorant of the facts, but of her rights
as well:

x x x. Appellee [Maria Juego] testified that she has reached only elementary school for
her educational attainment; that she did not know what damages could be recovered
from the death of her husband; and that she did not know that she may also recover
more from the Civil Code than from the ECC. x x x.36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to allege in
her complaint that her application and receipt of benefits from the ECC were attended by
ignorance or mistake of fact. Not being an issue submitted during the trial, the trial court had no
authority to hear or adjudicate that issue."

Petitioner also claims that private respondent could not have been ignorant of the facts because
as early as November 28, 1990, private respondent was the complainant in a criminal complaint
for "Simple Negligence Resulting to Homicide" against petitioner’s employees. On February 6,
1991, two months before the filing of the action in the lower court, Prosecutor Lorna Lee issued
a resolution finding that, although there was insufficient evidence against petitioner’s
employees, the case was "civil in nature." These purportedly show that prior to her receipt of
death benefits from the ECC on January 2, 1991 and every month thereafter, private respondent
also knew of the two choices of remedies available to her and yet she chose to claim and receive
the benefits from the ECC.

When a party having knowledge of the facts makes an election between inconsistent remedies,
the election is final and bars any action, suit, or proceeding inconsistent with the elected
remedy, in the absence of fraud by the other party. The first act of election acts as a
bar.37 Equitable in nature, the doctrine of election of remedies is designed to mitigate possible
unfairness to both parties. It rests on the moral premise that it is fair to hold people responsible
for their choices. The purpose of the doctrine is not to prevent any recourse to any remedy, but
to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies results in a waiver by election. Hence, the
rule in Floresca that a claimant cannot simultaneously pursue recovery under the Labor Code
and prosecute an ordinary course of action under the Civil Code. The claimant, by his choice of
one remedy, is deemed to have waived the other.

Waiver is the intentional relinquishment of a known right.39

[It] is an act of understanding that presupposes that a party has knowledge of its rights,
but chooses not to assert them. It must be generally shown by the party claiming a
waiver that the person against whom the waiver is asserted had at the time knowledge,
actual or constructive, of the existence of the party’s rights or of all material facts upon
which they depended. Where one lacks knowledge of a right, there is no basis upon
which waiver of it can rest. Ignorance of a material fact negates waiver, and waiver
cannot be established by a consent given under a mistake or misapprehension of fact.

A person makes a knowing and intelligent waiver when that person knows that a right
exists and has adequate knowledge upon which to make an intelligent decision.

Waiver requires a knowledge of the facts basic to the exercise of the right waived, with
an awareness of its consequences. That a waiver is made knowingly and intelligently
must be illustrated on the record or by the evidence.40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the
exception in Floresca.

It is in light of the foregoing principles that we address petitioner’s contentions.

Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to allege in
her complaint that she had availed of benefits from the ECC. It is, thus, erroneous for petitioner
to burden private respondent with raising waiver as an issue. On the contrary, it is the
defendant who ought to plead waiver, as petitioner did in pages 2-3 of its Answer;41 otherwise,
the defense is waived. It is, therefore, perplexing for petitioner to now contend that the trial
court had no jurisdiction over the issue when petitioner itself pleaded waiver in the proceedings
before the trial court.

Does the evidence show that private respondent knew of the facts that led to her husband’s
death and the rights pertaining to a choice of remedies?

It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In this case,
the "fact" that served as a basis for nullifying the waiver is the negligence of petitioner’s
employees, of which private respondent purportedly learned only after the prosecutor issued a
resolution stating that there may be civil liability. In Floresca, it was the negligence of the mining
corporation and its violation of government rules and regulations. Negligence, or violation of
government rules and regulations, for that matter, however, is not a fact, but a conclusion of
law, over which only the courts have the final say. Such a conclusion binds no one until the
courts have decreed so. It appears, therefore, that the principle that ignorance or mistake of
fact nullifies a waiver has been misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the
elevator crash when on November 15, 1990 she accomplished her application for benefits from
the ECC. The police investigation report is dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the application in her behalf on November 27,
1990.

There is also no showing that private respondent knew of the remedies available to her when
the claim before the ECC was filed. On the contrary, private respondent testified that she was
not aware of her rights.

Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law excuses no
one from compliance therewith. As judicial decisions applying or interpreting the laws or the
Constitution form part of the Philippine legal system (Article 8, Civil Code), private respondent
cannot claim ignorance of this Court’s ruling in Floresca allowing a choice of remedies.

The argument has no merit. The application of Article 3 is limited to mandatory and prohibitory
laws.42 This may be deduced from the language of the provision, which, notwithstanding a
person’s ignorance, does not excuse his or her compliance with the laws. The rule
in Floresca allowing private respondent a choice of remedies is neither mandatory nor
prohibitory. Accordingly, her ignorance thereof cannot be held against her.

Finally, the Court modifies the affirmance of the award of damages. The records do not indicate
the total amount private respondent ought to receive from the ECC, although it appears from
Exhibit "K"43 that she received P3,581.85 as initial payment representing the accrued pension
from November 1990 to March 1991. Her initial monthly pension, according to the same Exhibit
"K," was P596.97 and present total monthly pension was P716.40. Whether the total amount
she will eventually receive from the ECC is less than the sum of P644,000.00 in total damages
awarded by the trial court is subject to speculation, and the case is remanded to the trial court
for such determination. Should the trial court find that its award is greater than that of the ECC,
payments already received by private respondent under the Labor Code shall be deducted from
the trial court'’ award of damages. Consistent with our ruling in Floresca, this adjudication aims
to prevent double compensation.

WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to determine
whether the award decreed in its decision is more than that of the ECC. Should the award
decreed by the trial court be greater than that awarded by the ECC, payments already made to
private respondent pursuant to the Labor Code shall be deducted therefrom. In all other
respects, the Decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

 MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his own behalf and as
guardian of the minors MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON, CLEMENTE and
AURORA, all surnamed MAGNO, SALUD MAGNO, and the COURT OF APPEALS (Second
Division), Respondents.

D E C I S I O N
MONTEMAYOR, J.:
On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his
stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said to be in
a leaking condition. The “media agua” was just below the window of the third story. Standing on
said “media agua”, Magno received from his son thru that window a 3’ X 6’ galvanized iron sheet
to cover the leaking portion, turned around and in doing so the lower end of the iron sheet
came into contact with the electric wire of the Manila Electric Company (later referred to as the
Company) strung parallel to the edge of the “media agua” and 2 1/2 feet from it, causing his
death by electrocution. His widow and children fled suit to recover damages from the company.
After hearing, the trial court rendered judgment in their favor — P10,000 as compensatory
damages; chan roblesvirtualawlibraryP784 as actual damages; chan
roblesvirtualawlibraryP2,000 as moral and exemplary damages; chan roblesvirtualawlibraryand
P3,000 as attorney’s fees, with costs. On appeal to the Court of Appeals, the latter affirmed the
judgment with slight modification by reducing the attorney’s fees from P3,000 to P1,000 with
costs. The electric company has appealed said decision to us.
The findings of fact made by the Court of Appeals which are conclusive are stated in the
following portions of its decision which we reproduce below:chanroblesvirtuallawlibrary
“The electric wire in question was an exposed, uninsulated primary wire stretched between
poles on the street and carrying a charge of 3,600 volts. It was installed there some two years
before Peñaloza’s house was constructed. The record shows that during the construction of said
house a similar incident took place, although fortunate]y with much less tragic consequences. A
piece of wood which a carpenter was holding happened to come in contact with the same wire,
producing some sparks. The owner of the house forthwith complained to Defendant about the
danger which the wire presented, and as a result Defendant moved one end of the wire farther
from the house by means of a brace, but left the other end where it was.
“At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the
distance from the electric wire to the edge of the ‘media agua’ on which the deceased was
making repairs was only 30 inches or 2 1/2 feet. Regulations of the City of Manila required that
‘all wires be kept three feet from the building.’ Appellant contends that in applying said
regulations to the case at bar the reckoning should not be from the edge of the ‘media agua’ but
from the side of the house and that, thus measured, the distance was almost 7 feet, or more
then the minimum prescribed. This contention is manifestly groundless, for not only is a ‘media
agua’ an integral part of the building to which it is attached but to exclude it in measuring the
distance would defeat the purpose of the regulation. Appellant points out, nevertheless, that
even assuming that the distance, within the meaning of the city regulations, should be
measured from the edge of the ‘media agua’, the fact that in the case of the house involved
herein such distance was actually less than 3 feet was due to the fault of the owner of said
house, because the city authorities gave him a permit to construct a ‘media agua’ only one
meter or 39 1/2 inches wide, but instead he built one having a width of 65 3/4 inches, 17 3/8
inches more than the width permitted by the authorities, thereby reducing the distance to the
electric wire to less than the prescribed minimum of 3 feet.
“It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by
the city authorities for the construction of the ‘media agua’, and that if he had not done
so Appellants wire would have been 11 3/8 (inches) more than the required distance of three
feet from the edge of the ‘media agua’. It is also a fact, however, that after the ‘media agua’ was
constructed the owner was given a final permit of occupancy of the house cralaw .
“ cralaw The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was,
according to Appellant, no insulation that could have rendered it safe, first, because there is no
insulation material in commercial use for such kind of wire; chan roblesvirtualawlibraryand
secondly, because the only insulation material that may be effective is still in the experimental
stage of development and, anyway, its costs would be prohibitive… ”
The theory followed by the appellate court in finding for the Plaintiff is that although the owner
of the house in constructing the “media agua” in question exceeded the limits fixed in the
permit, still, after making that “media agua”, its construction though illegal, was finally approved
because he was given a final permit to occupy the house; chan roblesvirtualawlibrarythat it was
the company that was at fault and was guilty of negligence because although the electric wire in
question had been installed long before the construction of the house and in accordance with
the ordinance fixing a minimum of 3 feet, mere compliance with the regulations does not satisfy
the requirement of due diligence nor avoid the need for adopting such other precautionary
measures as may be warranted; chan roblesvirtualawlibrarythat negligence cannot be
determined by a simple matter of inches; chan roblesvirtualawlibrarythat all that the city did
was to prescribe certain minimum conditions and that just because the ordinance required that
primary electric wires should be not less than 3 feet from any house, the obligation of due
diligence is not fulfilled by placing such wires at a distance of 3 feet and one inch, regardless of
other factors. The appellate court, however, refrained from stating or suggesting what other
precautionary measures could and should have been adopted.
After a careful study and discussion of the case and the circumstances surrounding the same, we
are inclined to agree to the contention of Petitioner Company that the death of Magno was
primarily caused by his own negligence and in some measure by the too close proximity of the
“media agua” or rather its edge to the electric wire of the company by reason of the violation of
the original permit given by the city and the subsequent approval of said illegal construction of
the “media agua”. We fail to see how the Company could be held guilty of negligence or as
lacking in due diligence. Although the city ordinance called for a distance of 3 feet of its wires
from any building, there was actually a distance of 7 feet and 2 3/4 inches of the wires from the
side of the house of Peñaloza. Even considering said regulation distance of 3 feet as referring
not to the side of a building, but to any projecting part thereof, such as a “media agua”, had the
house owner followed the terms of the permit given him by the city for the construction of his
“media agua”, namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge
of said “media agua” would have been 3 feet and 11 3/8 inches. In fixing said one meter width
for the “media agua” the city authorities must have wanted to preserve the distance of at least
3 feet between the wires and any portion of a building. Unfortunately, however, the house
owner disregarding the permit, exceeded the one meter fixed by the same by 17 3/8 inches and
leaving only a distance of 2 1/2 feet between the “Media agua” as illegally constructed and the
electric wires. And added to this violation of the permit by the house owner, was its approval by
the city through its agent, possibly an inspector. Surely we cannot lay these serious violations of
a city ordinance and permit at the door of the Company, guiltless of breach of any ordinance or
regulation. The Company cannot be expected to be always on the lookout for any illegal
construction which reduces the distance between its wires and said construction, and after
finding that said distance of 3 feet had been reduced, to change the stringing or installation of
its wires so as to preserve said distance. It would be much easier for the City, or rather it is its
duty, to be ever on the alert and to see to it that its ordinances are strictly followed by house
owners and to condemn or disapprove all illegal constructions. Of course, in the present case,
the violation of the permit for the construction of the “media agua” was not the direct cause of
the accident. It merely contributed to it. Had said “media agua” been only one meter wide as
allowed by the permit, Magno standing on it, would instinctively have stayed closer to or
hugged the side of the house in order to keep a safe margin between the edge of the “media
agua” and the yawning 2-story distance or height from the ground, and possibly if not probably
avoided the fatal contact between the lower end of the iron sheet and the wires.
We realize that the presence of the wires in question quite close to the house or its “media
agua” was always a source of danger considering their high voltage and uninsulated as they
were, but the claim of the company and the reasons given by it for not insulating said wires
were unrefuted as we gather from the findings of the Court of Appeals, and so we have to
accept them as satisfactory. Consequently, we may not hold said company as guilty of
negligence or wanting in due diligence in failing to insulate said wires. As to their proximity to
the house it is to be supposed that distance of 3 feet was considered sufficiently safe by the
technical men of the city such as its electrician or engineer. Of course, a greater distance of say 6
feet or 12 feet would have increased the margin of safety but other factors had to be considered
such as that the wires could not be strung or the posts supporting them could not be located too
far toward the middle of the street. Thus, the real cause of the accident or death was the
reckless or negligent act of Magno himself. When he was called by his stepbrother to repair the
“media agua” just below the third story window, it is to be presumed that due to his age and
experience he was qualified to do so. Perhaps he was a tinsmith or carpenter and had training
and experience for the job. So, he could not have been entirely a stranger to electric wires and
the danger lurking in them. But unfortunately, in the instant care, his training and experience
failed him, and forgetting where he was standing, holding the 6-feet iron sheet with both hands
and at arms length, evidently without looking, and throwing all prudence and discretion to the
winds, he turned around swinging his arms with the motion of his body, thereby causing his own
electrocution.
In support of its theory and holding that Defendant-Appellant was liable for damages the Court
of Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do not think the
case is exactly applicable. There, the premises involved was that elevated portion or top of the
walls of Intramuros, Manila, just above the Sta. Lucia Gate. In the words of the Court, it was “a
public place where persons come to stroll, to rest and to enjoy themselves”. The electric
company was clearly negligent in placing its wires so near the place that without much difficulty
or exertion, a person by stretching his hand out could touch them. A boy named Astudillo,
placing one foot on a projection, reached out and actually grasped the electric wire and was
electrocuted. The person electrocuted in said case was a boy who was in no position to realize
the danger. In the present case, however, the wires were well high over the street where there
was no possible danger to pedestrians. The only possible danger was to persons standing on the
“media agua”, but a “media agua” can hardly be considered a public place where persons
usually gather. Moreover, a person standing on the “media agua” could not have reached the
wires with his hands alone. It was necessary as was done by Magno to hold something long
enough to reach the wire. Furthermore, Magno was not a boy or a person immature but the
father of a family, supposedly a tinsmith trained and experienced in the repair of galvanized iron
roofs and “media agua”. Moreover, in that very case of Astudillo vs. Manila Electric Co., supra,
the court said that although it is a well- established rule that the liability of electric companies
for damages or personal injuries is governed by the rules of negligence, nevertheless such
companies are not insurers of the safety of the public.
But even assuming for a moment that under the facts of the present case the Defendant electric
company could be considered negligent in installing its electric wires so close to the house and
“media agua” in question, and in failing to properly insulate those wires (although according to
the unrefuted claim of said company it was impossible to make the insulation of that kind of
wire), nevertheless to hold the Defendant liable in damages for the death of Magno, such
supposed negligence of the company must have been the proximate and principal cause of the
accident, because if the act of Magno in turning around and swinging the galvanized iron sheet
with his hands was the proximate and principal cause of the electrocution, then his heirs may
not recover. Such was the holding of this Court in the case of Taylor vs. Manila Electric Railroad
and Light Company, 16 Phil., 8. In that case, the electric company was found negligent in leaving
scattered on its premises fulminating caps which Taylor, a 15- year old boy found and carried
home. In the course of experimenting with said fulminating caps, he opened one of them, held it
out with his hands while another boy applied a lighted match to it, causing it to explode and
injure one of his eyes eventually causing blindness in said eye. Said this Tribunal in denying
recovery for the injury:chanroblesvirtuallawlibrary
“ cralaw, so that while it may be true that these injuries would not have been incurred but for
the negligent act of the Defendant in leaving the caps exposed on its premises,
nevertheless Plaintiff’s own act was the proximate and principal cause of the accident which
inflicted the injury.”
To us it is clear that the principal and proximate cause of the electrocution was not the electric
wire, evidently a remote cause, but rather the reckless and negligent act of Magno in turning
around and swinging the galvanized iron sheet without taking any precaution, such as looking
back toward the street and at the wire to avoid its contacting said iron sheet, considering the
latter’s length of 6 feet. For a better understanding of the rule on remote and proximate cause
with respect to injuries, we find the following citation helpful:chanroblesvirtuallawlibrary
“A prior and remote cause cannot be made the basis of an action if such remote cause did
nothing more than furnish the condition or give rise to the occasion by which the injury was
made possible, if there intervened between such prior or remote cause and the injury a distinct,
successive, unrelated, and efficient cause of the injury, even though such injury would not have
happened but for such condition or occasion. If no danger existed in the condition except
because of the independent cause, such condition was not the proximate cause. And if an
independent negligent act or defective condition sets into operation the circumstances which
result in injury because of the prior defective condition, such subsequent act or condition is the
proximate cause.” (45 C.J. pp. 931-332.).
We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close
to houses is a constant source of danger, even death, especially to persons who having occasion
to be near said wires, do not adopt the necessary precautions. But may be, the City of Manila
authorities and the electric company could get together and devise means of minimizing this
danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares may
greatly minimize danger to pedestrians because drivers of motor vehicles may expect danger
and slow down or even stop and take other necessary precaution upon approaching said lanes,
so, a similar way may possibly be found. Since these high voltage wires cannot be properly
insulated and at reasonable cost, they might perhaps be strung only up to the outskirts of the
city where there are few houses and few pedestrians and there step-down to a voltage where
the wires carrying the same to the city could be properly insulated for the better protection of
the public.
In view of all the foregoing, the appealed decision of the Court of Appeals is hereby reversed
and the complaint filed against the Company is hereby dismissed. No costs.
Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., and Endencia, JJ., concur.

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,

vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

REGALADO, J.:

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

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

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the
decretal part of which reads:
 IN VIEW OF THE FOREGOING considerations the defendant Philippine Long
Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages
and P500.00 as exemplary damages, with legal rate of interest from the date of
the filing of the complaint until fully paid. The defendant is hereby ordered to
pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount

the defendant-third party plaintiff has paid to the plaintiff. With costs against
the defendant. 6

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

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision
in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of
the lower court and dismissing the complaint of respondent spouses. It held that respondent
Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for
damages.7 A copy of this decision was received by private respondents on October 10,
1979. 8 On October 25, 1979, said respondents filed a motion for reconsideration dated October
24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said
motion for reconsideration.10 This resolution was received by respondent spouses on February
22, 1980.11

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

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second
motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the
resolution of the second motion for reconsideration, designated two additional justices to form
a division of five.16 On September 3, 1980, said division of five promulgated its resolution,
penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well
as the resolution dated, January 24,1980, and affirming in toto the decision of the lower court.17

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa,

reversing the original decision dated September 25, 1979 and setting aside the
resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second
motion for reconsideration and, consequently, said second motion for reconsideration itself
were filed out of time.

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

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period,
the running of which was suspended during the pendency of the first motion for
reconsideration, the Court of Appeals could no longer validly take further proceedings on the
merits of the case, much less to alter, modify or reconsider its aforesaid decision and/or
resolution. The filing of the motion for leave to file a second motion for reconsideration by
herein respondents on February 29, 1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary period to file the same, produced no
legal effects. Only a motion for re-hearing or reconsideration filed in time shall stay the final
order or judgment sought to be re-examined. 23

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

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

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find
no error in the findings of the respondent court in its original decision that the accident which
befell private respondents was due to the lack of diligence of respondent Antonio Esteban and
was not imputable to negligent omission on the part of petitioner PLDT. Such findings were
reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24, 1980 which we quote with approval:

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

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

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

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

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-

husband claimed. At that speed, he could have braked the vehicle the moment
it struck the ACCIDENT MOUND. The jeep would not have climbed the
ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The
jeep must have been running quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiff's would not have been thrown against the
windshield and they would not have suffered their injuries.
 Fourth. If the accident did not happen because the jeep was running quite fast
on the inside lane and for some reason or other it had to swerve suddenly to the
right and had to climb over the ACCIDENT MOUND, then plaintiff-husband had
not exercised the diligence of a good father of a family to avoid the accident.
With the drizzle, he should not have run on dim lights, but should have put on
his regular lights which should have made him see the ACCIDENT MOUND in
time. If he was running on the outside lane at 25 kilometers an hour, even on
dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was
negligence on his part. The ACCIDENT MOUND was relatively big and visible,
being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT
MOUND in time, he would not have seen any warning sign either. He knew of
the existence and location of the ACCIDENT MOUND, having seen it many
previous times. With ordinary precaution, he should have driven his jeep on the
night of the accident so as to avoid hitting the ACCIDENT MOUND.29

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

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

Moreover, we also sustain the findings of respondent Court of Appeals in its original decision
that there was insufficient evidence to prove any negligence on the part of PLDT. We have for
consideration only the self-serving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence of a police report of
the incident and the non-submission of a medical report from the hospital where private
respondents were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980
—

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

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

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

SO ORDERED.

G.R. No. L-40452 October 12, 1989

GREGORIO GENOBIAGON, petitioner,

vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

Mario D. Ortiz for petitioner.

GRIÑO-AQUINO, J.:

This is a petition for review of the Court of Appeals' decision in CA-G.R. No. 09949-CR, dated
October 10, 1974, affirming the conviction of the petitioner of the crime of homicide thru
reckless imprudence.

As found by the Court of Appeals, the facts of this case are:

 On December 31,1959, at about 7:30 o'clock in the evening, a rig driven by
appellant bumped an old woman who was crossing T. Padilla St., Cebu City, at
the right side of T. Padilla Market. The appellant's rig was following another at a
distance of two meters. The old woman started to cross when the first rig was
approaching her, but as appellant's vehicle was going so fast not only because of
the steep down-grade of the road, but also because he was trying to overtake
the rig ahead of him, the appellant's rig bumped the old woman, who as a
consequence, fell at the middle of the road. The appellant continued to drive
on, but a by-stander, one Vicente Mangyao, who just closed his store in market
in order to celebrate the coming of the New Year, and who saw the incident
right before him, shouted at the appellant to stop. He ran after appellant when
the latter refused to stop. Overtaking the appellant, Mangyao asked him why he
bumped the old woman and his answer was, 'it was the old woman that
bumped him.' The appellant went back to the place where the old woman was
struck by his rig. The old woman was unconscious, and the food and viands she
was carrying were scattered on her body. The victim was then loaded in a jeep
and brought to the hospital where she died three hours later (Exh. C). The
findings after an autopsy are as follows:

Contusion with Hematoma Left, Frontal and Occipito-Parietal

Regionas Fracture Occipito-Parietal Bone Cerebral Hemorrhage.

The deceased was an eighty-one-year old woman named Rita B. Cabrera. (pp.
31-32, Rollo.)

Petitioner was charged with homicide thru reckless imprudence in the Court of First Instance of
Cebu (Crim. Case No. V7855). The trial court found petitioner guilty of the felony charged and
sentenced him to "suffer an indeterminate penalty of three (3) months of arresto mayor as
minimum to one (1) year, one (1) month and eleven (11) days of prision correccional as
maximum, to indemnify the heirs of Rita Banzon Cabrera the sum of P6,000 with subsidiary
imprisonment in case of insolvency, not to exceed 1/3 of the principal penalty and to pay the
costs" (p. 3, Appellant's Brief, p. 56, Rollo).

The petitioner appealed to the Court of Appeals (CA-G.R. 09949-CR)which,on October

10,1974,conviction of the accused but increased his civil liability to P12,000. The dispositive
portion of its decision reads:

WHEREFORE, finding no error in the judgment appealed from except in the

amount of indemnity to be paid to the heirs of the deceased, Rita B. Cabrera,
which is the sum of P6,000.00 with subsidiary imprisonment in case of
insolvency which should be raised to P12,000.00 (People vs. Pantoja, G.R. No. L-
18793, October 11, 1968, 25 SCRA 468) but without subsidiary imprisonment in
case of insolvency, the same should be, as it is hereby affirmed in all other
respects with costs. (P. 37, Rollo.)

After his motion for reconsideration of the Court of Appeals' decision was denied, he filed a
petition for review in this Court, alleging that the Court of Appeals erred:
 1. in not finding that the reckless negligence of the victim was the proximate
cause of the accident which led to her death;

2. in not acquitting the petitioner on the ground of reasonable doubt; and

3. in unjustly increasing the civil liability of the petitioner from P6,000.00 to

P12,000.00, although the circumstances of the victim and the accused
(petitioner) do not warrant such increase.

It is quite evident that all the issues raised in the petition for review are factual. Well-
entrenched in our jurisprudence is the rule that findings of fact of the trial court and the Court
of Appeals are binding upon us (Bernardo vs. Bernardo, 101 SCRA 351; Vda. De Roxas vs. IAC,
143 SCRA 77; Republic vs. IAC, 144 SCRA 705).

The alleged contributory negligence of the victim, if any, does not exonerate the accused. "The
defense of contributory negligence does not apply in criminal cases committed through reckless
imprudence, since one cannot allege the negligence of another to evade the effects of his own
negligence (People vs. Orbeta, CA-G.R. No. 321, March 29,1947)." (People vs. Quinones, 44 O.G.
1520).

The petitioner's contention that the Court of Appeals unjustly increased his civil liability to
P12,000, is devoid of merit. The prevailing jurisprudence in fact provides that indemnity for
death in homicide or murder is P30,000 (People vs. De la Fuente, [1983]126 SCRA 518; People
vs. Centeno, 130 SCRA 198). Accordingly, the civil liability of the petitioner is increased to
P30,000.

WHEREFORE, the appealed decision is affirmed with modification as to the civil liability of the
petitioner which is hereby increased to P30,000. Costs against petitioner.

M. H., RAKES, plaintiff-appellee,

vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A. D. Gibbs for appellant.

F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to
the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used
in this work. The defendant has proved that there were two immediately following one another,
upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of
the rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards
to prevent them from slipping off. According to the testimony of the plaintiff, the men were
either in the rear of the car or at its sides. According to that defendant, some of them were also
in front, hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie
broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg,
which was afterwards amputated at about the knee.

This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of the
construction and quality of the track proves that if was up to the general stranded of tramways
of that character, the foundation consisting on land of blocks or crosspieces of wood, by 8
inches thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right
angle rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the
stringers the parallel with the blocks were the ties to which the tracks were fastened. After the
road reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by
timbers extending from one side to the other. The tracks were each about 2 feet wide and the
two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no
side pieces or guards on the car; that where no ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were immediately above the
joints between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the dislodging of the crosspiece or
piling under the stringer by the water of the bay raised by a recent typhoon. The superintendent
of the company attributed it to the giving way of the block laid in the sand. No effort was made
to repair the injury at the time of the occurrence. According to plaintiffs witnesses, a depression
of the track, varying from one half inch to one inch and a half, was therafter apparent to the
eye, and a fellow workman of the plaintiff swears that the day before the accident he called the
attention of McKenna, the foreman, to it and asked by simply straightening out the crosspiece,
resetting the block under the stringer and renewing the tie, but otherwise leaving the very same
timbers as before. It has not proven that the company inspected the track after the typhoon or
had any proper system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on
its part in failing either to properly secure the load on iron to vehicles transporting it, or to
skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and
repair the roadway as soon as the depression in it became visible. It is upon the failure of the
defendant to repair the weakened track, after notice of its condition, that the judge below
based his judgment.

This case presents many important matters for our decision, and first among them is the
standard of duty which we shall establish in our jurisprudence on the part of employees toward
employees.

The lack or the harshness of legal rules on this subject has led many countries to enact designed
to put these relations on a fair basis in the form of compensation or liability laws or the
institution of insurance. In the absence of special legislation we find no difficulty in so applying
the general principles of our law as to work out a just result.

Article 1092 of the Civil Code provides:

 Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would
constitute a grave crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of

regulations, shall cause an injury which, had malice intervened, would have constituted
a crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.

It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his
employer held only subsidiarily to him. According to this theory the plaintiff should have
procured the arrest of the representative of the company accountable for not repairing the
tract, and on his prosecution a suitable fine should have been imposed, payable primarily by him
and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:

A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

SEC. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity, the mother, is liable for the damages caused
by the minors who live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.

xxx xxx xxx

 The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.

As an answer to the argument urged in this particular action it may be sufficient to point out
that nowhere in our general statutes is the employer penalized for failure to provide or maintain
safe appliances for his workmen. His obligation therefore is one "not punished by the law " and
falls under civil rather than criminal jurisprudence. But the answer may be a broader one. We
should be reluctant, under any conditions, to adopt a forced construction of these scientific
codes, such as is proposed by the defendant, that would rob some of these articles of effect,
would shut out litigants their will from the civil courts, would make the assertion of their rights
dependent upon the selection for prosecution of the proper criminal offender, and render
recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if
these articles had always stood alone, such a construction would be unnecessary, but clear light
is thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley
de Enjuiciamiento Criminal), which, though n ever in actual force in these Islands, was formerly
given a suppletory or explanatory effect. Under article 111 of this law, both classes of action,
civil and criminal, might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or been
expressly reserved by him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced by only on private complaint, the
penal action thereunder should be extinguished. These provisions are in harmony with those of
articles 23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third
person criminally liable whose prosecution must be a condition precedent to the enforcement
of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement in the civil courts is not
barred thereby unless by election of the injured person. Inasmuch as no criminal in question,
the provisions of the Penal Code can not affect this action. This construction renders it
unnecessary to finally determine here whether this subsidiary civil liability in penal actions
survived the laws that fully regulated it or has been abrogated by the American civil and criminal
procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the law, the
consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to
the passengers out of the contract for passage. while that to that injured bystander would
originate in the negligent act itself. This distinction is thus clearly set forth by Manresa in his
commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood
in two difference senses; either as culpa, substantive and independent, which on
account of its origin arises in an obligation between two persons not formerly bound by
any other obligation; or as an incident in the performance of an obligation; or as already
existed, which can not be presumed to exist without the other, and which increases the
liability arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of
this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This
terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter
XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27,
1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate.
(March 10, 1897, 81 Jurisprudencia Civil, No. 107.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading
French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led
to the discovery of a third basis for liability in an article of he French Code making the possessor
of any object answerable for damage done by it while in his charge. Our law having no
counterpart of this article, applicable to every kind of object, we need consider neither the
theory growing out of it nor that of "professional risk" more recently imposed by express
legislation, but rather adopting the interpretation of our Civil Code above given, find a rule for
this case in the contractual obligation. This contractual obligation, implied from the relation and
perhaps so inherent in its nature to be invariable by the parties, binds the employer to provide
safe appliances for the use of the employee, thus closely corresponding to English and American
Law. On these principles it was the duty of the defendant to build and to maintain its track in
reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could not have
occurred; consequently the negligence of the defendant is established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to
his employment and, as such, one assumed by him. It is evident that this can not be the case if
the occurrence was due to the failure to repair the track or to duly inspect, it for the employee is
not presumed to have stipulated that the employer might neglect his legal duty. Nor may it be
excused upon the ground that the negligence leading to the accident was that of a fellow-
servant of the injured man. It is not apparent to us that the intervention of a third person can
relieve the defendant from the performance of its duty nor impose upon the plaintiff the
consequences of an act or omission not his own. Sua cuique culpa nocet. This doctrine, known as
"the fellow-servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in
England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it
has since been effectually abrogated by "the Employers' Liability Acts" and the "Compensation
Law." The American States which applied it appear to be gradually getting rid of it; for instance,
the New York State legislature of 1906 did away with it in respect to railroad companies, and
had in hand a scheme for its total abolition. It has never found place in the civil law of
continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title,
804. Also more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.

As to the first point, the depression in the track night indicate either a serious or a rival
difficulty. There is nothing in the evidence to show that the plaintiff did or could see the
displaced timber underneath the sleeper. The claim that he must have done so is a conclusion
drawn from what is assumed to have been a probable condition of things not before us, rather
than a fair inference from the testimony. While the method of construction may have been
known to the men who had helped build the road, it was otherwise with the plaintiff who had
worked at this job less than two days. A man may easily walk along a railway without perceiving
a displacement of the underlying timbers. The foreman testified that he knew the state of the
track on the day of the accident and that it was then in good condition, and one Danridge, a
witness for the defendant, working on the same job, swore that he never noticed the depression
in the track and never saw any bad place in it. The sagging of the track this plaintiff did perceive,
but that was reported in his hearing to the foreman who neither promised nor refused to repair
it. His lack of caution in continuing at his work after noticing the slight depression of the rail was
not of so gross a nature as to constitute negligence, barring his recovery under the severe
American rule. On this point we accept the conclusion of the trial judge who found as facts that
"the plaintiff did not know the cause of the one rail being lower than then other" and "it does
not appear in this case that the plaintiff knew before the accident occurred that the stringers
and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon
us, because not "plainly and manifestly against the weight of evidence," as those words of
section 497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court
of the United States in the De la Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in
this way, but were expressly directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general prohibition frequently made known
to all the gang against walking by the side of the car, and the foreman swears that he repeated
the prohibition before the starting of this particular load. On this contradiction of proof we think
that the preponderance is in favor of the defendant's contention to the extent of the general
order being made known to the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a proximate, although not as its
primary cause. This conclusion presents sharply the question, What effect is to be given such an
act of contributory negligence? Does it defeat a recovery, according to the American rule, or is it
to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his
injury, provided his negligence was slight as compared with that of the defendant, and some
others have accepted the theory of proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately contributing to his injury, bars
his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in
the person injured; subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory
negligence of the party injured will not defeat the action if it be shown that the
defendant might, by the exercise of reasonable care and prudence, have avoided the
consequences of the injured party's negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent
or that the negligence of the plaintiff was the immediate cause of the casualty or that the
accident was due to casus fortuitus. Of the first class in the decision of January 26, 1887
(38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was thrown
therefrom and killed by the shock following the backing up of the engine. It was held that the
management of the train and engine being in conformity with proper rules of the company,
showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th
of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by
the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a guard at the road crossing; the
other, because the act of the deceased in driving over level ground with unobstructed view in
front of a train running at speed, with the engine whistle blowing was the determining cause of
the accident. It is plain that the train was doing nothing but what it had a right to do and that
the only fault lay with the injured man. His negligence was not contributory, it was sole, and was
of such an efficient nature that without it no catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff
sustaining damages was not free from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was
held liable for not furnishing protection to workmen engaged in hanging out flags, when the
latter must have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed
to his injury as one of its causes, though not the principal one, and we are left to seek the theory
of the civil law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident
could not have happened, but that the contributory negligence of the injured man had the
effect only of reducing the damages. The same principle was applied in the case of Recullet,
November 10, 1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman,
Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail,
363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English
theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil
law. Elsewhere we find this practice embodied in legislation; for instance, section 2 of article
2398 of the Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person injured
or in the part of some one else, the indemnification shall be reduced in the first case,
and in the second case it shall be appropriated in proportion to such fault or negligence
as provided in paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is
incapable of ascertainment, he shall share the liability equally with the person principally
responsible. The principle of proportional damages appears to be also adopted in article 51 of
the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are
derived from the civil law, common fault in cases of collision have been disposed of not on the
ground of contradictor negligence, but on that of equal loss, the fault of the one part being
offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is entered in
favor of the vessel sustaining the greater loss against the other for the excess of her damages
over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the
civil action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of
the parties, appears to have grown out the original method of trial by jury, which rendered
difficult a nice balancing of responsibilities and which demanded an inflexible standard as a
safeguard against too ready symphaty for the injured. It was assumed that an exact measure of
several concurring faults was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an
action against the other, is, not the wrong of the one is set off against the wrong of the
other; it that the law can not measure how much of the damage suffered is attributable
to the plaintiff's own fault. If he were allowed to recover, it might be that he would
obtain from the other party compensation for hiss own misconduct. (Heil vs. Glanding,
42 Penn. St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law
has no scales to determine in such cases whose wrongdoing weighed most in the
compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax
the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive,
through the device of granting new trials, unless reduced damages are stipulated for, amounting
to a partial revision of damages by the courts. It appears to us that the control by the court of
the subject matter may be secured on a moral logical basis and its judgment adjusted with
greater nicety to the merits of the litigants through the practice of offsetting their respective
responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of
its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the
stress and counter stress of novel schemers of legislation, we find the theory of damages laid
down in the judgment the most consistent with the history and the principals of our law in these
Islands and with its logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be between
the accident and the injury, between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it, independent of it, but contributing
under review was the displacement of the crosspiece or the failure to replace it. this produced
the event giving occasion for damages — that is, the shinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly thorough his act of omission of duty, the last
would have been one of the determining causes of the event or accident, for which he would
have been responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount that the defendant responsible
for the event should pay for such injury, less a sum deemed a suitable equivalent for his own
imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage
incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we
deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct
judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of
both instances, and ten days hereafter let the case be remanded to the court below for proper
action. So ordered.

Arellano, C.J. Torres and Mapa, JJ., concur.

G.R. No. L-87584 June 16, 1992

GOTESCO INVESTMENT CORPORATION, petitioner,

vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the
Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of the
respondent Court of Appeals in CA-G.R. CV No. 09699 which, respectively affirmed in toto the
decision of Branch XXI of the Regional Trial Court of Cebu in Civil Case No. R-22567
entitled "Gloria Chatto, et al. versus Gotesco Investment Corporation", and denied petitioner's
motion to reconsider the same.

The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E. Chatto
the sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the sum of
P49,050.00 as actual and consequential damages, P75,000.00 as moral damages and P20,000.00
as attorney's fees, plus the cost of the suit. These awards, except for the attorney's fees, were to
earn interest at the rate of twelve per cent (12%) per annum beginning from the date the
complaint was filed, 16 November 1982, until the amounts were fully paid.

The antecedent facts, as found by the trial court and affirmed by the respondent Court, are
summarized by the latter in the challenged decision as follows:

The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E.
Chatto, and her 15-year old daughter, plaintiff Lina Delza E. Chatto went to see
the movie "Mother Dear" at Superama I theater, owned by defendant Gotesco
Investment Corporation. They bought balcony tickets but even then were
unable to find seats considering the number of people patronizing the movie.
Hardly ten (10) minutes after entering the theater, the ceiling of its balcony
collapsed. The theater was plunged into darkness and pandemonium ensued.
Shocked and hurt, plaintiffs managed to crawl under the fallen ceiling. As soon
as they were able to get out to the street they walked the nearby FEU Hospital
where they were confined and treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was
treated in said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto
from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto
G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:

Physical injuries:

Contusions:

forehead and drental region, scalp left with

hematoma; chest anterior upper bilateral; back
right, scapular region; back, mid-portion,
thoraco-lumbar regions, bilateral

Abrasions:

back lumbar region, horizontal, across midline,

from left to right; hand right, palm, near wrist;
hand left, index finger, dorsum, proximal
phalanx.

Conclusion, cerebral.

X-Ray — Skull; Thoraco-lumbar

region — All negative.

CONCLUSIONS

1. Physical injuries rioted on the

subject.

2. That under normal condition

in the absence of complication,
said physical injuries will
require medical attendance
and/or incapacitate the subject
for a period of from two to four
weeks.

On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal
Certificate (Exh. "D") of Dr. Brion are as follows:

xxx xxx xxx

 Physical injuries:

Lacerated wounds:

scalp vertex, running across suggittal line, from

left to right, 3.0 cm sutured;

Contusion, forearm right, anterior aspect, upper third.

Abrasions:

Shoulder and upper third, arm right, posterior

aspect, linear; backright, scapular region, two in
number, linear; elbow right, posterior aspect;
forearm right, anterior aspect, middle third.

Concusion (sic), cerebral.

X-Ray — Skull — Negative.

Cervical spines Straightening of cervical spine, probably to
muscular spasm.

CONCLUSIONS:

1. Physical injuries noted on subject.

2. That under normal condition, in the absence of complication,

said physical injuries will require medical attendance and/or
incapacitate the subject for a period of from two to four weeks.

Due to continuing pain in the neck, headache and dizziness, plaintiff went to
Illinois, USA in July 1982 for further treatment (Exh "E"). She was treated at the
Cook County Hospital in Chicago, Illinois. She stayed in the U.S. for about three
(3) months during which time she had to return to the Cook County Hospital five
(5) or, six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its
theater was done due to force majeure. It maintained that its theater did not
suffer from any structural or construction defect. (Exh. 1, 2, 3, 4, & 5)3

In justifying its award of actual or compensatory and moral damages and attorney's fees, the
trial court said:

It has been established thru the uncontradicted testimony of Mrs. Chatto that
during the chaos and confusion at the theater she lost a pair of earrings worth
P2,500 and the sum of P1,000.00 in cash contained in her wallet which was lost;
and that she incurred the following expenses: P500.00 as transportation fare
 from Cebu City to Manila on the first leg of her trip to the United States;
P350.00 for her passport; and P46,978.00 for her expense relative to her
treatment in the United States, including the cost of a round-trip ticket
(P11,798.00) hospital and medical bills and other attendant expenses. The total
is P51,328.00, which is more than the sum of P49,050.00 claimed in the
complaint, hence should be reduced accordingly.

The same testimony has also established that Mrs. Chatto contracted to pay her
counsel the sum of P20,000.00, which this court considers reasonable
considering, among other things, the professional standing of work (sic)
involved in the prosecution of this case. Such award of attorney's fees is proper
because the defendant's omission to provide the plaintiffs proper and adequate
safeguard to life and limb which they deserved as patrons to (sic) its theater had
compelled the plaintiffs to hire the services of a counsel, file this case and
prosecute it, thus incurring expenses to protect their interest.

The plaintiffs are entitled to moral damages, which are the direct and proximate
result of the defendants gross negligence and omission. Such moral damages
include the plaintiffs' physical suffering, mental anguish, fright and serious
anxiety. On the part of Mrs. Chatto, who obviously suffered much more pain,
anguish, fright and anxiety than her daughter Lina Delza, such damages are
compounded by the presence of permanent deformities on her body consisting
of a 6-inch scar on the head and a 2-inch scar on one arm. The court believes
that the sum of P75,000.00 for plaintiff Gloria E. Chatto and the sum of
P10,000.00 for plaintiff Lina Delza E. Chatto would be reasonable. 4

Petitioner submitted before the respondent Court the following assignment of errors:

I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE

EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE
VALUE TO PUBLIC DOCUMENTS AND CERTIFICATIONS OF THE CONDITION OF
THE BUILDING, PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE
CITY ENGINEER'S OFFICE OF MANILA.

II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE BALCONY
COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION OR ARCHITECTURAL
DEFECT," AND NOT DUE TO AN ACT OF GOD OR FORCE MAJEURE.

III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS GROSSLY
NEGLIGENT IN FAILING "TO CAUSE PROPER AND ADEQUATE INSPECTION
MAINTENANCE AND UPKEEP OF THE BUILDING." 5

In its decision, respondent Court found the appeal to be without merit. As to the first assigned
error, it ruled that the trial court did not err in admitting the exhibits in question in the light of
the ruling in Abrenica vs. Gonda 6 on waiver of objections arising out of failure to object at the
proper time Thus:
Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to
the Administrator of UST Hospital expressing their willingness to guaranty the
payment of the hospital bills of the plaintiffs-appellees was not objected to in
trial court for lack of authentication. It is too late to raise that objection on
appeal.

Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and
Cook County Hospital. It may be true that the doctors who prepared them were
not presented as witnesses. Nonetheless, the records will show that counsel for
defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the
matter especially the content of Exhibits "F" to F-13", Consequently, defendant-
appellant is estopped from claiming lack of opportunity to verify their textual
truth. Moreover, the record is full of the testimony of plaintiffs-appellees on the
injuries they sustained from the collapse of the ceiling of defendant-appellant's
theater. Their existence is crystal clear.

Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-
appellee Gloria Chatto from the Philippines to the U.S. (Manila-Chicago-Manila).
Certainly, this is relevant evidence on whether or not she actually travelled (sic)
to the U.S. for further medical treatment. Defendant-appellant's contention that
the best evidence on the issue is her passport is off the mark. The best evidence
rule applies only if the contents of the writing are directly in issue. In any event,
her passport is not the only evidence on the matter.

Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S
in her own handwriting. Defendant-appellant's objection that it is self serving
goes to the weight of the evidence. The truth of Exh. "G" could be and should
have been tested by cross examination. It cannot be denied however that such
expenses are within the personal knowledge of the witness.

Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as
part of her treatment in the U.S. Defendant-appellant objects to its admission
because it is self-serving. The objection is without merit in view of the evidence
on record that plaintiff-appellee Gloria Chatto sustained head injuries from the
collapse of the ceiling of defendant-appellant's theater. In fact, counsel for
defendant-appellant cross examined the said witness on the medical finding of
Cook County Hospital that she was suffering from neck muscle spasm. (TSN,
April 17, 1984, p. 11) The wearing of a surgical neckwear has proper basis.

Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing
the use of her surgical neckwear. Defendant-appellant objects to this exhibit its
hearsay because the photographer was not presented as a witness. The
objection is incorrect. In order that photographs or pictures may be given in
evidence, they must be shown to be a true and faithful representation of the
place or objects to which they refer. The photographs may be verified either by
the photographer who took it or by any person who is acquainted with the
object represented and testify (sic) that the photograph faithfully represents the
object. (Moran, Comments in the Rules of Court, Vol. V, 1980 ed., p. 80 citing
 New York Co vs. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was identified
by plaintiff appellee Gloria Chatto. 7

As to the, other assigned errors, the respondent Court ruled:

The lower court did not also err in its finding that the collapse of the ceiling of
the theater's balcony was due to construction defects and not to force majeure.
It was the burden defendant-appellant to prove that its theater did not suffer
from any structural defect when it was built and that it has been well
maintained when the incident occurred. This is its Special and Affirmative
Defense and it is incumbent on defendant-appellant to prove it. Considering the
collapse of the ceiling of its theater's balcony barely four (4) years after its
construction, it behooved defendant-appellant to conduct an exhaustive study
of the reason for the tragic incident. On this score, the effort of defendant-
appellant borders criminal nonchalance. Its witness Jesus Lim Ong testified:

Atty. Barcelona:

Q By the way, you made mention a while ago that your staff of
engineer and architect used to make round inspection of the
building under your construction the of these buildings is
Gotesco Cinema 1 and 2, subject matter of this case, and you
also made a regular round up or inspection of the theater. Is
that right?

A Yes, sir.

Q And do you personally inspect these buildings under your

construction?

A Yes, whenever I can.

Q In the case of Gotesco Cinema 1 and 2, had you any chance to

inspect this building?

A Yes, sir.

Q Particularly in the months of May and June of 1982?

A Yes, in that (sic) months.

Q Now, you said also that sometime in June 1982 you

remember that one of these theaters.

Atty. Barcelona: continuing

particularly Superama 1 the ceiling had collapsed?

 A Yes, sir.

Q Did you conduct an investigation?

A Yes, sir.

Q What was your finding?

A There was really nothing, I cannot explain. I could not give any
reason why the ceiling collapsed.

Q Could it not be due to any defect of the plant?

Atty. Florido:

Already answered, Your Honor, he could not give any reason.

COURT:

Objection sustained.

Atty. Barcelona:

Q When that incident happened, did the owner Gotesco

Investment Corporation went (sic) to you to call your attention?

A Yes, sir.

Atty. Florido:

Your Honor, we noticed (sic) series of leading questions, but this

time we object.

COURT:

Sustained.

Atty. Barcelona;

Q What did the owner of Gotesco do when the ceiling collapsed,

upon knowing that one of the cinemas you maintained
collopsed?

A He asked for a thorough investigation.

Q And as a matter of fact as asked you to investigate?

 A Yes, sir.

Q Did you come out with any investigation report.

A There was nothing to report.

Clearly, there was no authoritative investigation conducted by impartial civil and

structural engineers on the cause of the collapse of the theater's ceiling, Jesus
Lim Ong is not an engineer, He is a graduate of architecture from the St. Louie
(sic) University in Baguio City. It does not appear he has passed the government
examination for architects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of
Mr. Ong about the cause of the collapse of the ceiling of their theater cannot be
equated, as an act, of God. To sustain that proposition is to introduce sacrilege
in our jurisprudence. 8

Its motion for reconsideration of the decision having been denied by the respondent Court,
petitioner filed this petition assailing therein the challenged decision on the following grounds:

1. The basis of the award for damages stems from medical reports issued by
private physicians of local hospitals without benefit of cross-examination and
more seriously, xerox copies of medical findings issued by American doctors in
the United States without the production of originals, without the required
consular authentication for foreign documents, and without the opportunity for
cross-examination.

2. The damage award in favor of respondents is principally, made depend on

such unreliable, hearsay and incompetent evidence for which an award of more
than P150,000.00 in alleged actual, moral and I "consequential" damages are
awarded to the prejudice of the right of petitioner to due process. . . .

3. Unfortunately, petitioners evidence of due diligence in the care and

maintenance of the building was not seriously considered by the Court of
Appeals, considering that frequent inspections and maintenance precautions
had to be observed by hired engineers of petitioner, which enjoys an unsullied
reputation in the business of exhibiting movies in a chain of movie houses in
Metro Manila. 9

After the private respondents filed their Comment as required in the Resolution of 17 May 1989,
this Court resolved to give due course to the petition and required the parties to file their
respective Memoranda. Subsequently, private respondents, in a motion, prayed for leave to
adopt their Comment as their Memorandum, which this Court granted on 6 December 1989.
Petitioner filed its Memorandum on 10 January 1990.

The petition presents both factual and legal issues. The first relates to the cause of the collapse
of the ceiling while the latter involves the correctness of the admission of the exhibits in
question.
We find no merit in the petition.

The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact
being conclusive, 10 except only where a case is shown as coming under the accepted
exception. 11 None of the exceptions which this Court has painstakingly summarized in several
cases 12 has been shown to exist in this petition. Petitioner's claim that the collapse of the ceiling
of the theater's balcony was due to force majeure is not even founded on facts because its own
witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling
collapsed." Having interposed it as a defense, it had the burden to prove that the collapse was
indeed caused by force majeure. It could not have collapsed without a cause. That Mr. Ong
could not offer any explanation does not imply force majeure. As early as eighty-five (85) years
ago, this Court had the occasion to define force majeure. In Pons y Compañia vs. La Compañia
Maritima 13 this Court held:

An examination of the Spanish and American authorities concerning the

meaning of force majeure shows that the jurisprudence of these two countries
practically agree upon the meaning of this phrase.

Blackstone, in his Commentaries on English Law, defines it as —

Inevitable accident or casualty; an accident produced by any

physical cause which is irresistible; such as lightning. tempest,
perils of the sea, inundation, or earthquake; the sudden illness
or death of a person. (2 Blackstone's Commentaries, 122; Story
in Bailments, sec. 25.)

Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza

mayor as follows.

The event which we could neither foresee nor resist; as for

example, the lightning stroke, hail, inundation, hurricane, public
enemy, attack by robbers; Vis major est, says Cayo, ea quae
consilio humano neque provideri neque vitari potest. Accident
and mitigating circumstances.

Bouvier defines the same as —

Any accident due to natural cause, directly exclusively without

human intervention, such as could not have been prevented by
any kind of oversight, pains and care reasonably to have been
expected. (Law Reports, 1 Common Pleas Division, 423; Law
Reports, 10 Exchequer, 255.)

Corkburn, chief justice, in a well considered English case (1 Common Pleas

Division, 34, 432), said that were a captain —
 Uses all the known means to which prudent and experienced
captains ordinarily have recourse, he does all that can be
reasonably required of him; and if, under such circumtances, he
is overpowered by storm or other natural agency, he is within
the rule which gives immunity from the effects of such vis
major.

The term generally applies, broadly speaking, to natural accidents, such as those
caused by lightning, earthquake, tempests, public enemy ,etc.

Petitioner could have easily discovered the cause of the collapse if indeed it were due to force
majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is that
either he did not actually conduct the investigation or that he is, as the respondent Court
impliedly held, incompetent. He is not an engineer, but an architect who had not even passed
the government's examination. Verily, post-incident investigation cannot be considered as
material to the present proceedings. What is significant is the finding of the trial court, affirmed
by the respondent Court, that the collapse was due to construction defects. There was no
evidence offered to overturn this finding. The building was constructed barely four (4) years
prior to the accident in question. It was not shown that any of the causes denominates as force
majeure obtained immediately before or at the time of the collapse of the ceiling. Such defects
could have been easily discovered if only petitioner exercised due diligence and care in keeping
and maintaining the premises. But as disclosed by the testimony of Mr. Ong, there was no
adequate inspection of the premises before the date of the accident. His answers to the leading
questions on inspection disclosed neither the exact dates of said. inspection nor the nature and
extent of the same. That the structural designs and plans of the building were duly approved by
the City Engineer and the building permits and certificate of occupancy were issued do not at all
prove that there were no defects in the construction, especially as regards the ceiling,
considering that no testimony was offered to prove that it was ever inspected at all.

It is settled that:

The owner or proprietor of a place of public amusement impliedly warrants that

the premises, appliances and amusement devices are safe for the purpose for
which they are designed, the doctrine being subject to no other exception or
qualification than that he does not contract against unknown defects not
discoverable by ordinary or reasonable means. 14

This implied warranty has given rise to the rule that:

Where a patron of a theater or other place of public amusement is injured, and

the thing that caused the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in the ordinary
course of events would not have happened if proper care had been exercised,
its occurrence raises a presumption or permits of an inference of negligence on
the part of the defendant. 15

That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause
of the collapse was due to force majeure, petitioner would still be liable because it was guilty of
negligence, which the trial court denominated as gross. As gleaned from Bouvier's definition of
and Cockburn's elucidation on force majeure for one to be exempt from any liability because of
it, he must have exercised care, i.e., he should not have been guilty of negligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the
respondent Court, but in the sweeping conclusion of petitioner. We agree with the respondent
Court that petitioner offered no reasonable objection to the exhibits. More than this, however,
We note that the exhibits were admitted not as independent evidence, but, primarily, as part of
the testimony of Mrs. Gloria Chatto. Neither were the exhibits made the main basis for the
award of damages. As to the latter, including the award for attorney's fees, the testimonial
evidence presented is sufficient to support the same; moreover, petitioner was not deprived of
its right to test the, truth or falsity of private respondents' testimony through cross-examination
or refute their claim by its own evidence. It could not then be successfully argued by petitioner
that the admission of the exhibits violated the hearsay rule. As this Court sees it, the trial court
admitted such merely as independently relevant statements, which was not objectionable, for:

Where, regardless of the truth or the falsity of a statement, the fact that it has
been made is relevant, the hearsay rule does not apply, but the statement may
be shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact; in issue, or be
circumstantially relevant as to the existence of such a fact. 16

Furthermore, and with particular reference to the documents issued in the United States of
America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not that they
are hearsay. In its written comment and/or opposition to documentary exhibits, petitioner
objected to their admission on the following grounds only:

. . . for being incompetent evidence considering that the same were not duly
authenticated by the responsible consular and/or embassy officials authorized
to authenticate the said documents. 17

All told, the instant petition is without merit.

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against
petitioner.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Romero, JJ., concur.

 SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE JESUS
VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION
DIMAANO and MILAGROS DIMAANO, respondents.

D E C I S I O N
PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision[1] promulgated on July 31, 1996, and Resolution[2] dated September 12, 1996 of the
Court of Appeals[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, Inc., which reduced the moral damages awarded below
from P1,000,000.00 to P200,000.00.[4] The Resolution under attack denied petitioners motion
for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner
owns a four-storey school building along the same College Road. On October 11, 1989, at about
6:30 in the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong winds,
the roof of petitioners building was partly ripped off and blown away, landing on and destroying
portions of the roofing of private respondents house. After the typhoon had passed, an ocular
inspection of the destroyed buildings was conducted by a team of engineers headed by the city
building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Report[5] dated October 18,
1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the buildings
in the area and the general direction of the wind. Situated in the peripheral lot is an almost U-
shaped formation of 4-storey building. Thus, with the strong winds having a westerly direction,
the general formation of the buildings becomes a big funnel-like structure, the one situated
along College Road, receiving the heaviest impact of the strong winds. Hence, there are portions
of the roofing, those located on both ends of the building, which remained intact after the storm.

6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural
trusses is the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel
bars embedded on the concrete roof beams which serve as truss anchorage are not bolted nor
nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses,
thus, those trusses are not anchored at all to the roof beams.

It then recommended that to avoid any further loss and damage to lives, limbs and property of
persons living in the vicinity, the fourth floor of subject school building be declared as
a structural hazard.
In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for damages
based on culpa aquiliana, private respondents alleged that the damage to their house rendered
the same uninhabitable, forcing them to stay temporarily in others houses. And so they sought
to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral
damages, P300,000.00, as exemplary damages and P100,000.00, for and as attorneys fees; plus
costs.
 In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any portion thereof
giving way; that it has not been remiss in its responsibility to see to it that said school building,
which houses school children, faculty members, and employees, is in tip-top condition; and
furthermore, typhoon Saling was an act of God and therefore beyond human control such that
petitioner cannot be answerable for the damages wrought thereby, absent any negligence on its
part.
The trial court, giving credence to the ocular inspection report to the effect that subject
school building had a defective roofing structure, found that, while typhoon Saling was
accompanied by strong winds, the damage to private respondents house could have been
avoided if the construction of the roof of [petitioners] building was not faulty. The dispositive
portion of the lower courts decision[7] reads thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff
(sic) and against the defendants, (sic) ordering the latter to pay jointly and severally the former
as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorneys fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did not act in
a wanton fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors,[8] that:

I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT OF GOD,
IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF THE SMALL
PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE ROOF OF
DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING THE ADMISSION
THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON SALING
WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL
AS ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS
WHEN THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE
ALREADY SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS CASE
MOOT AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION
INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN THERE IS NO
COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial
courts disposition by reducing the award of moral damages from P1,000,000.00
to P200,000.00. Hence, petitioners resort to this Court, raising for resolution the issues of:

1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of
speculation or conjecture, without proof or receipts of actual damage, [sic] legally feasible or
justified.

2. Whether or not the award of moral damages to respondent Dimaanos, without the latter
having suffered, actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject
matter of the case, during its pendency, has the right to pursue their complaint against
petitioner when the case was already rendered moot and academic by the sale of the property
to third party.

4. Whether or not the award of attorneys fees when the case was already moot and
academic [sic] legally justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an
act of God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without
hearing, has support in law.

The pivot of inquiry here, determinative of the other issues, is whether the damage on the
roof of the building of private respondents resulting from the impact of the falling portions of
the school buildings roof ripped off by the strong winds of typhoon Saling, was, within legal
contemplation, due to fortuitous event? If so, petitioner cannot be held liable for the damages
suffered by the private respondents. This conclusion finds support in Article 1174 of the
Civil Code, which provides:

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.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it
as an event which takes place by accident and could not have been foreseen.[9] Escriche
elaborates it as an unexpected event or act of God which could neither be foreseen nor
resisted.[10] Civilist Arturo M. Tolentino adds that [f]ortuitous events may be produced by two
general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc.
and (2) by the act of man, such as an armed invasion, attack by bandits, governmental
prohibitions, robbery, etc.[11]
In order that a fortuitous event may exempt a person from liability, it is necessary that he
be free from any previous negligence or misconduct by reason of which the loss may have been
occasioned.[12] An act of God cannot be invoked for the protection of a person who has been
guilty of gross negligence in not trying to forestall its possible adverse consequences. When a
persons negligence concurs with an act of God in producing damage or injury to another, such
person is not exempt from liability by showing that the immediate or proximate cause of the
damage or injury was a fortuitous event. When the effect is found to be partly the result of the
participation of man whether it be from active intervention, or neglect, or failure to act the
whole occurrence is hereby humanized, and removed from the rules applicable to acts of
God.[13]
In the case under consideration, the lower court accorded full credence to the finding of
the investigating team that subject school buildings roofing had no sufficient anchorage to hold
it in position especially when battered by strong winds. Based on such finding, the trial court
imputed negligence to petitioner and adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trial court, especially
when affirmed by the appellate court, are binding and conclusive upon this Court.[14] After a
careful scrutiny of the records and the pleadings submitted by the parties, we find exception to
this rule and hold that the lower courts misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence
which may be foreseen but is unavoidable despite any amount of foresight, diligence or
care.[15] In order to be exempt from liability arising from any adverse consequence engendered
thereby, there should have been no human participation amounting to a negligent act.[16] In
other words, the person seeking exoneration from liability must not be guilty of
negligence. Negligence, as commonly understood, is conduct which naturally or reasonably
creates undue risk or harm to others. It may be the failure to observe that degree of care,
precaution, and vigilance which the circumstances justly demand,[17] or the omission to do
something which a prudent and reasonable man, guided by considerations which ordinarily
regulate the conduct of human affairs, would do.[18] From these premises, we proceed to
determine whether petitioner was negligent, such that if it were not, the damage caused to
private respondents house could have been avoided?
At the outset, it bears emphasizing that a person claiming damages for the negligence of
another has the burden of proving the existence of fault or negligence causative of his injury or
loss. The facts constitutive of negligence must be affirmatively established by competent
evidence,[19] not merely by presumptions and conclusions without basis in fact. Private
respondents, in establishing the culpability of petitioner, merely relied on the aforementioned
report submitted by a team which made an ocularinspection of petitioners school building after
the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or
viewing.[20] What is visual to the eye though, is not always reflective of the real cause
behind. For instance, one who hears a gunshot and then sees a wounded person, cannot always
definitely conclude that a third person shot the victim. It could have been self-inflicted or caused
accidentally by a stray bullet. The relationship of cause and effect must be clearly shown.
 In the present case, other than the said ocular inspection, no investigation was conducted
to determine the real cause of the partial unroofing of petitioners school building. Private
respondents did not even show that the plans, specifications and design of said school building
were deficient and defective. Neither did they prove any substantial deviation from the
approved plans and specifications. Nor did they conclusively establish that the construction of
such building was basically flawed.[21]
On the other hand, petitioner elicited from one of the witnesses of private respondents,
city building official Jesus Reyna, that the original plans and design of petitioners school building
were approved prior to its construction. Engr. Reyna admitted that it was a legal requirement
before the construction of any building to obtain a permit from the city building official (city
engineer, prior to the passage of the Building Act of 1977). In like manner, after construction of
the building, a certification must be secured from the same official attesting to the readiness for
occupancy of the edifice. Having obtained both building permit and certificate of occupancy,
these are, at the very least, prima facie evidence of the regular and proper construction of
subject school building.[22]
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon
Saling, the same city official gave the go-signal for such repairs without any deviation from the
original design and subsequently, authorized the use of the entire fourth floor of the same
building. These only prove that subject building suffers from no structural defect, contrary to the
report that its U-shaped form was structurally defective. Having given his
unqualified imprimatur, the city building official is presumed to have properly performed his
duties[23] in connection therewith.
In addition, petitioner presented its vice president for finance and administration who
testified that an annual maintenance inspection and repair of subject school building were
regularly undertaken. Petitioner was even willing to present its maintenance supervisor to attest
to the extent of such regular inspection but private respondents agreed to dispense with his
testimony and simply stipulated that it would be corroborative of the vice presidents narration.
Moreover, the city building official, who has been in the city government service since
1974, admitted in open court that no complaint regarding any defect on the same structure has
ever been lodged before his office prior to the institution of the case at bench. It is a matter of
judicial notice that typhoons are common occurrences in this country. If subject school buildings
roofing was not firmly anchored to its trusses, obviously, it could not have withstood long years
and several typhoons even stronger than Saling.
In light of the foregoing, we find no clear and convincing evidence to sustain the judgment
of the appellate court. We thus hold that petitioner has not been shown negligent or at fault
regarding the construction and maintenance of its school building in question and that typhoon
Saling was the proximate cause of the damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and moral
damages as well as attorneys fees must fail.[24] Petitioner cannot be made to answer for a purely
fortuitous event.[25] More so because no bad faith or willful act to cause damage was alleged and
proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the pecuniary loss
they actually incurred.[26] It is not enough that the damage be capable of proof but must be
actually proved with a reasonable degree of certainty, pointing out specific facts that afford a
basis for measuring whatever compensatory damages are borne.[27]Private respondents merely
submitted an estimated amount needed for the repair of the roof of their subject building. What
is more, whether the necessary repairs were caused ONLY by petitioners alleged negligence in
the maintenance of its school building, or included the ordinary wear and tear of the house
itself, is an essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the
trial court is hereby nullified and set aside. Private respondents are ordered to reimburse any
amount or return to petitioner any property which they may have received by virtue of the
enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The
complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered
DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET
ASIDE. Accordingly, private respondents are ORDERED to return to petitioner any amount or
property received by them by virtue of said writ. Costs against the private respondents.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, and Kapunan, JJ., concur.

G.R. No. L-36481-2 October 23, 1982

AMPARO C. SERVANDO, CLARA UY BICO, plaintiffs-appellees,

vs.
PHILIPPINE STEAM NAVIGATION CO., defendant-appellant.

Zoilo de la Cruz, Jr. & Associate for plaintiff-appellee Amparo Servando.

Benedicto, Sumbingco & Associate for appellee Clara Uy Bico.

Ross, Salcedo, del Rosario, Bito & Misa for defendant-appellant.

ESCOLIN, J.:

This appeal, originally brought to the Court of Appeals, seeks to set aside the decision of the
Court of First Instance of Negros Occidental in Civil Cases Nos. 7354 and 7428, declaring
appellant Philippine Steam Navigation liable for damages for the loss of the appellees' cargoes
as a result of a fire which gutted the Bureau of Customs' warehouse in Pulupandan, Negros
Occidental.

The Court of Appeals certified the case to Us because only pure questions of law are raised
therein.
The facts culled from the pleadings and the stipulations submitted by the parties are as follows:

On November 6, 1963, appellees Clara Uy Bico and Amparo Servando loaded on board the
appellant's vessel, FS-176, for carriage from Manila to Pulupandan, Negros Occidental, the
following cargoes, to wit:

Clara Uy Bico —

1,528 cavans of rice valued

at P40,907.50;

Amparo Servando —

44 cartons of colored paper,

toys and general merchandise valued at P1,070.50;

as evidenced by the corresponding bills of lading issued by the appellant. 1

Upon arrival of the vessel at Pulupandan, in the morning of November 18, 1963, the cargoes
were discharged, complete and in good order, unto the warehouse of the Bureau of Customs. At
about 2:00 in the afternoon of the same day, said warehouse was razed by a fire of unknown
origin, destroying appellees' cargoes. Before the fire, however, appellee Uy Bico was able to
take delivery of 907 cavans of rice 2 Appellees' claims for the value of said goods were rejected
by the appellant.

On the bases of the foregoing facts, the lower court rendered a decision, the decretal portion of
which reads as follows:

WHEREFORE, judgment is rendered as follows:

1. In case No. 7354, the defendant is hereby ordered to pay the plaintiff Amparo
C. Servando the aggregate sum of P1,070.50 with legal interest thereon from
the date of the filing of the complaint until fully paid, and to pay the costs.

2. In case No. 7428, the defendant is hereby ordered to pay to plaintiff Clara Uy
Bico the aggregate sum of P16,625.00 with legal interest thereon from the date
of the filing of the complaint until fully paid, and to pay the costs.

Article 1736 of the Civil Code imposes upon common carriers the duty to observe extraordinary
diligence from the moment the goods are unconditionally placed in their possession "until the
same are delivered, actually or constructively, by the carrier to the consignee or to the person
who has a right to receive them, without prejudice to the provisions of Article 1738. "

The court a quo held that the delivery of the shipment in question to the warehouse of the
Bureau of Customs is not the delivery contemplated by Article 1736; and since the burning of
the warehouse occurred before actual or constructive delivery of the goods to the appellees,
the loss is chargeable against the appellant.

It should be pointed out, however, that in the bills of lading issued for the cargoes in question,
the parties agreed to limit the responsibility of the carrier for the loss or damage that may be
caused to the shipment by inserting therein the following stipulation:

Clause 14. Carrier shall not be responsible for loss or damage to shipments
billed 'owner's risk' unless such loss or damage is due to negligence of carrier.
Nor shall carrier be responsible for loss or damage caused by force majeure,
dangers or accidents of the sea or other waters; war; public enemies; . . . fire .
...

We sustain the validity of the above stipulation; there is nothing therein that is contrary to law,
morals or public policy.

Appellees would contend that the above stipulation does not bind them because it was printed
in fine letters on the back-of the bills of lading; and that they did not sign the same. This
argument overlooks the pronouncement of this Court in Ong Yiu vs. Court of Appeals,
promulgated June 29, 1979, 3 where the same issue was resolved in this wise:

While it may be true that petitioner had not signed the plane ticket (Exh. '12'),
he is nevertheless bound by the provisions thereof. 'Such provisions have been
held to be a part of the contract of carriage, and valid and binding upon the
passenger regardless of the latter's lack of knowledge or assent to the
regulation'. It is what is known as a contract of 'adhesion', in regards which it
has been said that contracts of adhesion wherein one party imposes a ready
made form of contract on the other, as the plane ticket in the case at bar, are
contracts not entirely prohibited. The one who adheres to the contract is in
reality free to reject it entirely; if he adheres, he gives his consent." (Tolentino,
Civil Code, Vol. IV, 1962 Ed., p. 462, citing Mr. Justice J.B.L. Reyes, Lawyer's
Journal, Jan. 31, 1951, p. 49).

Besides, the agreement contained in the above quoted Clause 14 is a mere iteration of the basic
principle of law written in Article 1 1 7 4 of the Civil Code:

Article 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.

Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss,
the obligor is exempt from liability for non-performance. The Partidas, 4 the antecedent of
Article 1174 of the Civil Code, defines 'caso fortuito' as 'an event that takes place by accident
and could not have been foreseen. Examples of this are destruction of houses, unexpected fire,
shipwreck, violence of robbers.'
In its dissertation of the phrase 'caso fortuito' the Enciclopedia Juridicada Espanola 5 says: "In a
legal sense and, consequently, also in relation to contracts, a 'caso fortuito' presents the
following essential characteristics: (1) the cause of the unforeseen and unexpected occurrence,
or of the failure of the debtor to comply with his obligation, must be independent of the human
will; (2) it must be impossible to foresee the event which constitutes the 'caso fortuito', or if it
can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be
free from any participation in the aggravation of the injury resulting to the creditor." In the case
at bar, the burning of the customs warehouse was an extraordinary event which happened
independently of the will of the appellant. The latter could not have foreseen the event.

There is nothing in the record to show that appellant carrier ,incurred in delay in the
performance of its obligation. It appears that appellant had not only notified appellees of the
arrival of their shipment, but had demanded that the same be withdrawn. In fact, pursuant to
such demand, appellee Uy Bico had taken delivery of 907 cavans of rice before the burning of
the warehouse.

Nor can the appellant or its employees be charged with negligence. The storage of the goods in
the Customs warehouse pending withdrawal thereof by the appellees was undoubtedly made
with their knowledge and consent. Since the warehouse belonged to and was maintained by the
government, it would be unfair to impute negligence to the appellant, the latter having no
control whatsoever over the same.

The lower court in its decision relied on the ruling laid down in Yu Biao Sontua vs. Ossorio 6,
where this Court held the defendant liable for damages arising from a fire caused by the
negligence of the defendant's employees while loading cases of gasoline and petroleon
products. But unlike in the said case, there is not a shred of proof in the present case that the
cause of the fire that broke out in the Custom's warehouse was in any way attributable to the
negligence of the appellant or its employees. Under the circumstances, the appellant is plainly
not responsible.

WHEREFORE, the judgment appealed from is hereby set aside. No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

I concur. Under article 1738 of the Civil Code "the extraordinary liability of the common carrier
continues to be operative even during the time the goods are stored in the warehouse of the
carrier at the place of destination, until the consignee has been advised of the arrival of the
goods and has had reasonable opportunity thereafter to remove them or otherwise dispose of
them".

From the time the goods in question were deposited in the Bureau of Customs' warehouse in
the morning of their arrival up to two o' clock in the afternoon of the same day, when the
warehouse was burned, Amparo C. Servando and Clara Uy Bico, the consignees, had reasonable
opportunity to remove the goods. Clara had removed more than one-half of the rice consigned
to her.

Moreover, the shipping company had no more control and responsibility over the goods after
they were deposited in the customs warehouse by the arrastre and stevedoring operator.

No amount of extraordinary diligence on the part of the carrier could have prevented the loss of
the goods by fire which was of accidental origin.

Under those circumstances, it would not be legal and just to hold the carrier liable to the
consignees for the loss of the goods. The consignees should bear the loss which was due to a
fortuitous event.

Separate Opinions

AQUINO, J., concurring:

I concur. Under article 1738 of the Civil Code "the extraordinary liability of the common carrier
continues to be operative even during the time the goods are stored in the warehouse of the
carrier at the place of destination, until the consignee has been advised of the arrival of the
goods and has had reasonable opportunity thereafter to remove them or otherwise dispose of
them".

From the time the goods in question were deposited in the Bureau of Customs' warehouse in
the morning of their arrival up to two o' clock in the afternoon of the same day, when the
warehouse was burned, Amparo C. Servando and Clara Uy Bico, the consignees, had reasonable
opportunity to remove the goods. Clara had removed more than one-half of the rice consigned
to her.

Moreover, the shipping company had no more control and responsibility over the goods after
they were deposited in the customs warehouse by the arrastre and stevedoring operator.

No amount of extraordinary diligence on the part of the carrier could have prevented the loss of
the goods by fire which was of accidental origin.

Under those circumstances, it would not be legal and just to hold the carrier liable to the
consignees for the loss of the goods. The consignees should bear the loss which was due to a
fortuitous event.