G.R. No. L-40570 January 30, 1976 TEODORO C. UMALI, petitioner, vs.HON.

ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First Instance of Pangasinan and FIDEL H. SAYNES, respondents. ESGUERRA, J.: Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali, defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager of the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory negligence of the parents of the boy "in not providing for the proper and delegate supervision and control over their son The dispositive part of the decision reads as follows: Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in connection with the burial of said deceased child, and the further sum of Three Thousand Pesos (P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is So Ordered. Undisputed facts appearing of record are: On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan, which started from 2:00 o'clock in the afternoon and lasted up to about midnight of the same day. During the storm, the banana plants standing on an elevated ground along the barrio road in San Pedro Ili of said municipality and near the transmission line of the Alcala Electric Plant were blown down and fell on the electric wire. As a result, the live electric wire was cut, one end of which was left hanging on the electric post and the other fell to the ground under the fallen banana plants. On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii who was passing by saw the broken electric wire and so he warned the people in the place not to go near the wire for they might get hurt. He also saw Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and notified him right then and there of the broken line and asked him to fix it, but the latter told the barrio captain that he could not do it but that he was going to look for the lineman to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side of the road, went to the place where the broken line wire was and got in contact with it. The boy was electrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes that the broken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric plant. Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part of his employee Cipriano Baldomero who tried to have the line repaired and the presence of negligence of the parents of the child in allowing him to leave his house during that time. A careful examination of the record convinces Us that a series of negligence on the part of defendants' employees in the Alcala Electric Plant resulted in the death of the victim by electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at the place of the incident standing on an elevated ground which were about 30 feet high and which were higher than the electric post supporting the electric line, and yet the employees of the defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds the electric line would be endangered by banana plants being blown down, did not even take the necessary precaution to eliminate that source of danger to the electric line. Second, even after the employees of the Alcala Electric Plant were already aware of the possible damage the storm of May 14, 1972, could have caused their electric lines, thus becoming a possible threat to life and property, they did not cut off from the plant the flow of electricity along the lines, an act they could have easily done pending inspection of the wires to see if they had been cut. Third, employee Cipriano Baldomero was negligent on the morning of the incident because even if he was already made aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to life and property, and that he should have taken the necessary precaution to prevent anybody from approaching the live wire; instead Baldomero left the premises because what was foremost in his mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life and property. On defendants' argument that the proximate cause of the victim's death could be attributed to the parents' negligence in allowing a child of tender age to go out of the house alone, We could readily see that because of the aforementioned series of negligence on the part of defendants' employees resulting in a live wire lying on the premises without any visible warning of

its lethal character, anybody, even a responsible grown up or not necessarily an innocent child, could have met the same fate that befell the victim. It may be true, as the lower Court found out, that the contributory negligence of the victim's parents in not properly taking care of the child, which enabled him to leave the house alone on the morning of the incident and go to a nearby place cut wire was very near the house (where victim was living) where the fatal fallen wire electrocuted him, might mitigate respondent's liability, but we cannot agree with petitioner's theory that the parents' negligence constituted the proximate cause of the victim's death because the real proximate cause was the fallen live wire which posed a threat to life and property on that morning due to the series of negligence adverted to above committed by defendants' employees and which could have killed any other person who might by accident get into contact with it. Stated otherwise, even if the child was allowed to leave the house unattended due to the parents' negligence, he would not have died that morning where it not for the cut live wire he accidentally touched. Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this case) was only contributory, the immediate and proximate cause of the injury being the defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by the petitioner but does not exempt him from liability. Petitioner's liability for injury caused by his employees negligence is well defined in par. 4, of Article 2180 of the Civil Code, which states: The owner and manager of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on tile occasion of their functions. The negligence of the employee is presumed to be the negligence of the employer because the employer is supposed to exercise supervision over the work of the employees. This liability of the employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil. 109). In fact the proper defense for the employer to raise so that he may escape liability is to prove that he exercised, the diligence of the good father of the family to prevent damage not only in the selection of his employees but also in adequately supervising them over their work. This defense was not adequately proven as found by the trial Court, and We do not find any sufficient reason to deviate from its finding. Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in this case, either in its appreciation of the evidence on questions of facts or on the interpretation and application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable conclusion is that no error amounting to grave abuse of discretion was committed and the decision must be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed. Costs against petitioner. SO ORDERED. G.R. No. 173146 November 25, 2009 AGUSAN DEL NORTE ELECTRIC COOPERATIVE, INC. (ANECO), represented by its Manager ROMEO O. DAGANI, Petitioner, vs.ANGELITA BALEN and SPOUSES HERCULES and RHEA LARIOSA, Respondents. DECISION NACHURA, J.: On appeal is the February 21, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 66153, affirming the December 2, 1999 Decision2 of the Regional Trial Court (RTC) of Butuan City, Branch 2, as well as its subsequent Resolution,3 denying petitioners motion for reconsideration. Petitioner Agusan del Norte Electric Cooperative, Inc. (ANECO) is a duly organized and registered consumers cooperative, engaged in supplying electricity in the province of Agusan del Norte and in Butuan City. In 1981, ANECO installed an electric post in Purok 4, Ata-atahon, Nasipit, Agusan del Norte, with its main distribution line of 13,000 kilovolts traversing Angelita Balens (Balens) residence. Balens father, Miguel, protested the installation with the District Engineers Office and with ANECO, but his protest just fell on deaf ears. On July 25, 1992, Balen, Hercules Lariosa (Lariosa) and Celestino Exclamado (Exclamado) were electrocuted while removing the television antenna (TV antenna) from Balens residence. The antenna pole touched ANECOs main distribution line which resulted in their electrocution. Exclamado died instantly, while Balen and Lariosa suffered extensive third degree burns. Balen and Lariosa (respondents) then lodged a complaint4 for damages against ANECO with the RTC of Butuan City. ANECO filed its answer5 denying the material averments in the complaint, and raising lack of cause of action as a defense. It posited that the complaint did not allege any wrongful act on the part of ANECO, and that respondents acted with gross negligence and evident bad faith. ANECO, thus, prayed for the dismissal of the complaint. After trial, the RTC rendered a Decision,6 disposing that:

WHEREFORE, judgment is hereby rendered in favor of [respondents] and against [ANECO], directing, ordaining and ordering a) That [ANECO] pay [respondent] Angelita E. Balen the sum of One Hundred Thousand Pesos (PHP100,000.00) and [respondent] Hercules A. Lariosa the sum of Seventy Thousand Pesos (PHP70,000.00) as reimbursement of their expenses for hospitalization, medicines, doctors professional fees, transportation and miscellaneous expenses; b) That [ANECO] pay [respondent] Angelita E. Balen the sum of Seventy Two Thousand Pesos (PHP72,000.00) for loss of income for three (3) years; c) That [ANECO] pay [respondent] Angelita E. Balen the sum of Fifteen Thousand Pesos (PHP15,000.00) and another Fifteen Thousand Pesos (PHP15,000.00) to [respondent] Hercules A. Lariosa as moral damages, or a total of Thirty Thousand Pesos (PHP30,000.00); d) That [ANECO] pay [respondents] Angelita E. Balen and Hercules A. Lariosa Two Thousand Pesos (PHP2,000.00) each or a total of Four Thousand Pesos (PHP4,000.00) as exemplary damages; e) That [ANECO] pay [respondents] Angelita E. Balen and Hercules A. Lariosa Eight Thousand Pesos (PHP8,000.00) each or a total of Sixteen Thousand Pesos [(PHP 16,000.00)] as attorneys fees and the sum of Two Thousand Pesos (PHP2,000.00) each or a total of Four Thousand Pesos (PHP4,000.00) for expense of litigation; f) That [ANECO] pay the costs of this suit; g) The dismissal of [ANECOs] counterclaim; [and] h) That the amount of Thirteen Thousand Pesos (PHP13,000.00) given by ANECO to [respondent] Angelita E. Balen and acknowledged by the latter to have been received (pre-trial order, record[s,] pp. 3637) must be deducted from the herein judgment debt. SO ORDERED.7 On appeal, the CA affirmed in toto the RTC ruling. It declared that the proximate cause of the accident could not have been the act or omission of respondents, who were not negligent in taking down the antenna. The proximate cause of the injury sustained by respondents was ANECOs negligence in installing its main distribution line over Balens residence. ANECO should have exercised caution, care and prudence in installing a high-voltage line over a populated area, or it should have sought an unpopulated area for the said line to traverse. The CA further noted that ANECO failed to put a precautionary sign for installation of wires over 600 volts, which is required by the Philippine Electrical Code.8 The CA disposed, thus: WHEREFORE, premises considered, the assailed Decision is hereby AFFIRMED in toto.

SO ORDERED.9 ANECO filed a motion for reconsideration, but the CA denied it on May 26, 2006.10 Hence, this appeal. Indisputably, Exclamado died and respondents sustained injuries from being electrocuted by ANECOs high-tension wire. These facts are borne out by the records and conceded by the parties. ANECO, however, denied liability, arguing that the mere presence of the high-tension wires over Balens residence did not cause respondents injuries. The proximate cause of the accident, it claims, was respondents negligence in removing the TV antenna and in allowing the pole to touch the high-tension wires. The findings of the RTC, it argues, patently run counter to the facts clearly established by the records. ANECO, thus, contends that the CA committed reversible error in sustaining the findings of the RTC. The argument lacks merit. Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, by reason of which such other person suffers injury. The test to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in the performance of the alleged negligent act use reasonable care and caution which an ordinary person would have used in the same situation? If not, then he is guilty of negligence. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that norm.11 The issue of who, between the parties, was negligent is a factual issue that this Court cannot pass upon, absent any whimsical or capricious exercise of judgment by the lower courts or an ample showing that they lacked any basis for their conclusions.12 The unanimity of the CA and the trial court in their factual ascertainment that ANECOs negligence was the proximate cause of the injuries sustained by respondents bars us from supplanting their findings and substituting them with our own. The function of this Court is limited to the review of the appellate courts alleged errors of law. We are not required to weigh all over again the factual evidence already considered in the proceedings below.13 ANECO has not shown that it is entitled to be excepted from this rule. It has not sufficiently demonstrated any special circumstances to justify a factual review.

That ANECOs negligence was the proximate cause of the injuries sustained by respondents was aptly discussed by the CA, which we quote: The evidence extant in the record shows that the house of MIGUEL BALEN already existed before the high voltage wires were installed by ANECO above it. ANECO had to follow the minimum clearance requirement of 3,050 under Part II of the Philippine Electrical Code for the installation of its main distribution lines above the roofs of buildings or houses. Although ANECO followed said clearance requirement, the installed lines were high voltage, consisting of open wires, i.e., not covered with insulators, like rubber, and charged with 13, 200 volts. Knowing that it was installing a main distribution line of high voltage over a populated area, ANECO should have practiced caution, care and prudence by installing insulated wires, or else found an unpopulated area for the said line to traverse. The court a quo correctly observed that ANECO failed to show any compelling reason for the installation of the questioned wires over MIGUEL BALENs house. That the clearance requirements for the installation of said line were met by ANECO does not suffice to exonerate it from liability. Besides, there is scarcity of evidence in the records showing that ANECO put up the precautionary sign: "WARNING-HIGH VOLTAGEKEEP OUT" at or near the house of MIGUEL BALEN as required by the Philippine Electrical Code for installation of wires over 600 volts.1avvphi1 Contrary to its stance, it is in fact ANECO which provided the proximate cause of the injuries of [respondents]. One of the tests for determining the existence of proximate cause is the foreseeability test, viz.: x x x Where the particular harm was reasonably foreseeable at the time of the defendants misconduct, his act or omission is the legal cause thereof. Foreseeability is the fundamental test of the law of negligence. To be negligent, the defendant must have acted or failed to act in such a way that an ordinary reasonable man would have realized that certain interests of certain persons were unreasonably subjected to a general but definite class of risk which made the actors conduct negligent, it is obviously the consequence for the actor must be held legally responsible. Otherwise, the legal duty is entirely defeated. Accordingly, the generalization may be formulated that all particular consequences, that is, consequences which occur in a manner which was reasonably foreseeable by the defendant at the time of his misconduct are legally caused by his breach of duty x x x. Thus applying aforecited test, ANECO should have reasonably foreseen that, even if it complied with the clearance requirements under the Philippine Electrical Code in installing the subject high tension wires above MIGUEL BALENs house, still a potential risk existed that people would get electrocuted, considering that the wires were not insulated.

Above conclusion is further strengthened by the verity that MIGUEL BALEN had complained about the installation of said line, but ANECO did not do anything about it. Moreover, there is scant evidence showing that [respondents] knew beforehand that the lines installed by ANECO were live wires. Otherwise stated, the proximate cause of the electrocution of [respondents] was ANECOs installation of its main distribution line of high voltage over the house of MIGUEL BALEN, without which the accident would not have occurred. xxxx x x x the taking down by [respondents] of the antenna in MIGUEL BALENs house would not have caused their electrocution were it not for the negligence of ANECO in installing live wires over the roof of the said house.14 Clearly, ANECOs act of leaving unprotected and uninsulated the main distribution line over Balens residence was the proximate cause of the incident which claimed Exclamados life and injured respondents Balen and Lariosa. Proximate cause is defined as any cause that produces injury in a natural and continuous sequence, unbroken by any efficient intervening cause, such that the result would not have occurred otherwise.15 ANECOs contention that the accident happened only eleven (11) years after the installation of the high-voltage wire cannot serve to absolve or mitigate ANECOs liability. As we held in Benguet Electric Cooperative, Inc. v. Court of Appeals:16 [A]s an electric cooperative holding the exclusive franchise in supplying electric power to the towns of Benguet province, its primordial concern is not only to distribute electricity to its subscribers but also to ensure the safety of the public by the proper maintenance and upkeep of its facilities. It is clear to us then that BENECO was grossly negligent in leaving unprotected and uninsulated the splicing point between the service drop line and the service entrance conductor, which connection was only eight (8) feet from the ground level, in violation of the Philippine Electrical Code. BENECO's contention that the accident happened only on January 14, 1985, around seven (7) years after the open wire was found existing in 1978, far from mitigating its culpability, betrays its gross neglect in performing its duty to the public. By leaving an open live wire unattended for years, BENECO demonstrated its utter disregard for the safety of the public. Indeed, Jose Bernardo's death was an accident that was bound to happen in view of the gross negligence of BENECO. Indeed, both the trial and the appellate courts findings, which are amply substantiated by the evidence on record, clearly point to ANECOs negligence as the proximate cause of the damages suffered by respondents Balen and Lariosa. No adequate reason has been given to overturn this factual conclusion. In fine, the CA committed no reversible error in sustaining the RTC.

WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. CV No. 66153 are AFFIRMED. Costs against petitioner. SO ORDERED. ANTONIO EDUARDO B. NACHURA Associate Justice G.R. No. L-68102 July 16, 1992 GEORGE MCKEE and ARACELI KOH MCKEE, petitioners, vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents G.R. No. L-68103 July 16, 1992 CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners, vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO, respondents. DAVIDE, JR., J.: Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral damages, attorney's fees and litigation expenses. The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee. Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of the accident. The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort. Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat. Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando. When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge. The incident was immediately reported to the police station in Angeles City; consequently, a team of police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet high. The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine (9) "footsteps", while skid marks produced by the

left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid marks. In his statement to the investigating police officers immediately after the accident, Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per hour. As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses, with costs. 4 On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5 In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed by the plaintiffs. 7 Both motions were denied by Branch

V, then presided over by Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with Counterclaim 8 wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation. Petitioners filed their Answers to the Counterclaims in both cases. To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge Mario Castaeda, Jr. Left then with Branch V of the trial court was Criminal Case No. 3751. In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12 In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits. 14 On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid criminal case. The dispositive portion of the decision reads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty beyond reasonable doubt of the crime charged in the information and after applying the provisions of Article 365 of the Revised Penal Code and

indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4) months and one (1) day of prision correccional as maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15 The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for petitioners filed with Branch III of the court where the two (2) civil cases were pending a manifestation to that effect and attached thereto a copy of the decision. 16 Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The dispositive portion of the said decision reads as follows: WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic). 18 A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received on 2 December 1980. 19 Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division. On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads:

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol. A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983. 24 On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads: WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffsappellants as follows: For the death of Jose Koh: P 50,000.00 as moral damages P 12,000.00 as death indemnity P 16,000.00 for the lot and tomb (Exhs. U and U-1) P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979) P 950.00 for the casket (Exh. M) P 375.00 for the vault services (Exhs. V and V-1) For the death of Kim Koh McKee: P 50,000.00 as moral damages P 12,000.00 as death indemnity P 1,000.00 for the purchase of the burial lot (Exh. M) P 950.00 for funeral services (Exh. M-1) P 375.00 for vault services (Exhs. V and V-1) For the physical injuries suffered by George Koh McKee: P 25,000.00 as moral damages P 672.00 for Clark Field Hospital (Exh. E) P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and D-2) P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1) For the physical injuries suffered by Araceli Koh McKee: P 25,000.00 as moral damages P 1,055.00 paid to St. Francis Medical Center (Exhs. G and G-1) P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)

P 428.00 to Carmelite General Hospital (Exh. F) P 114.20 to Muoz Clinic (Exh. MM) For the physical injuries suffered by Christopher Koh McKee: P 10,000.00 as moral damages P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1) P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1) In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478. No pronouncement as to costs. SO ORDERED. 26 The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee. 27This conclusion of reckless imprudence is based on the following findings of fact: In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in the fourth assigned error as follows: IV THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT. Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus: Q What happened after that, as you approached the bridge? A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane. Q Did the truck slow down? A No, sir, it did not, just (sic) continued on its way. Q What happened after that? A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on

the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases). xxx xxx xxx Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did you know (sic)? A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 3031, Appellants' Brief). Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances: 1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when it had already collided with the car: xxx xxx xxx Tanhueco repeated the same testimony during the hearing in the criminal case: xxx xxx xxx Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital. We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived across the street. Regarding Soliman, experience has shown that in the ordinary course of events people usually take the side of the person with whom they are associated at the time of the accident, because, as a general rule, they do not wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously created among the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962). With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not go to the succor of the injured persons. He said he wanted to call the police authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages. 3. Galang divulged that he stopped after seeing the car about 10 meters away: ATTY. SOTTO: Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only about ten (10) meters away from you for the first time? xxx xxx xxx A I noticed it, sir, that it was about ten (10) meters away. ATTY. SOTTO: Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief) Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is wellnigh impossible to avoid a collision on a bridge. 5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and none were found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck were caused by the truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But, as

aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup happened just the same. For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of the defendants in the selection of their driver or in the supervision over him. Appellees did not allege such defense of having exercised the duties of a good father of a family in the selection and supervision of their employees in their answers. They did not even adduce evidence that they did in fact have methods of selection and programs of supervision. The inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's attention was on the highway, he would have sighted the car earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was already inevitable, because at the time that he entered the bridge his attention was not riveted to the road in front of him. On the question of damages, the claims of appellants were amply proven, but the items must be reduced. 28 A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30 Hence, this petition. Petitioners allege that respondent Court: I . . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE. II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED. III . . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFSAPPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER. IV . . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES. V . . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER. VI . . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT. VII . . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31 In the Resolution of 12 September 1984, We required private respondents to Comment on the petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave due course to the instant petitions and required petitioners to file their Brief, 35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-arguments, some observations on the procedural vicissitudes of these cases are in order. Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed, and understandably so, since by then no specific provision of law or ruling of this Court expressly allowed such a consolidation, that an independent civil action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33 itself expressly provides that the "civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." Be that as it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigants, 36 would have easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their respective orientation, perception and perhaps even prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was what happened in this case. It should not, hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action subject, however, to the condition that no final judgment has been rendered in that criminal case. Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to this case. As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirely irrelevant to

the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated: . . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the same manner to be filed separately from the criminal case, may proceed similarly regardless of the result of the criminal case. Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed independently even during the pendency of the latter case, the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so because the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action . . . . What remains to be the most important consideration as to why the decision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. It would have been entirely different if the petitioners' cause of action was for damages arising from a delict, in which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against Galang would have been conclusive in the civil cases for the subsidiary liability of the private respondents. 41 And now to the merits of the petition. It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations, conjectures and presumptions. The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are, as a rule, binding on this Court. 42 The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment. 43The same is true where the appellate court's conclusions are grounded entirely on conjectures, speculations and surmises 44 or where the conclusions of the lower courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the findings and conclusions of the trial court and the respondent Court in its challenged resolution are not supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of fact. In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee: Q What happened after that, as you approached the bridge? A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane. Q Did the truck slow down? A No sir, it did not, just (sic) continued on its way. Q What happened after that? A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46 Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to the two (2) boys. Such act can hardly be classified as negligent. Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus: . . . Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circumstances

justly demand, whereby such other person suffers injury." (Cooley on Torts, Fourth Edition, vol. 3, 265) In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e held: The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that(reasonable care and caution which an ordinarily prudent person would have used in the same situation?) If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamiliasof the Roman law. . . . In Corliss vs. Manila Railroad Company, 48 We held: . . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894). On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." 49 Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. Proximate cause has been defined as: . . . that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. 50 Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on. The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents' claim that there was an error in the translation by the investigating officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly performed; 53 unless there is proof to the contrary,

this presumption holds. In the instant case, private respondents' claim is based on mere conjecture. The truck driver's negligence was likewise duly established through the earlier quoted testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an impartial eyewitness to the mishap. Araceli Koh McKee testified further, thus: xxx xxx xxx Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision as you narrated in this Exhibit "1," how did you know? A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 3031, Appellants' Brief) 54 while Eugenio Tanhueco testified thus: Q When you saw the truck, how was it moving? A It was moving 50 to 60 kilometers per hour, sir. Q Immediately after you saw this truck, do you know what happened? A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28, April 19, 1979) xxx xxx xxx Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever stopped? A I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless. (tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55 Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident. Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the

negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. 56 In Bustamante vs. Court of Appeals, 57 We held: The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165). The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799). In Pantranco North Express, Inc., vs. Baesa, 58 We ruled: The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise: The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's

Lumber and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra]. Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to defeat claim (sic) for damages. Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. 59 Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage. Article 2180 reads as follows: The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. The diligence of a good father referred to means the diligence in the selection and supervision of employees. 60The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it. The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984 finds no sufficient legal and factual moorings. In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee. Costs against private respondents. SO ORDERED. G.R. No. L-22995 June 29, 1967 WILLIAM ADDENBROOK Y BARKER, petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent. REYES, J.B.L., J.: Petition for certiorari to review the decision of the Court of Appeals affirming a conviction by the Court of First Instance of Manila for homicide through reckless imprudence upon the petitioner William Addenbrook Y Barker. The appellate court's decision depicts the facts as follows: . . . about 3:15 in the afternoon of 9 January 1960, the front bumper of the Stanvac Service Truck with Plate No. 2740, Manila, 960, while travelling southward along Marquez de Comillas being driven then by accused William Addenbrook, and in front of House No. 1010, came into contact with the body of a pedestrian Wenceslao Risaldo with the result that the latter fell and was taken to the Philippine General Hospital by accused and his helper in the truck named Amando Valeriano, but was dead on arrival, it having been found that he had received abrasions on the left forehead, and contusions with lacerations on the face, left arm, right thigh, knee joints, and right buttocks and waist and fracture of the skull, Exh. B, so that the Fiscal filed the present criminal case for homicide thru reckless imprudence against accused resulting in his conviction. . . . Upon impact of the van against the victim, the latter fell and rolled to a distance of fifteen (15) paces, as shown by two (2) sets of bloodstains observed by patrolman Emilio Guzman in his ocular investigation immediately after the occurrence of the incident. From these facts, the appellate court found it difficult to believe that the van was travelling at a slow and reasonable speed. Considering further that as postulated by the accused himself, his view of the street was partly blocked by a parked car in front of house No. 1010, Marquez de Comillas, from behind which the deceased tried to cross the street; and with the added fact that the appellant did not blow his horn despite the visual obstruction by the parked car, the Court of Appeals concluded

that he failed to observe that reasonable care required of a driver of a motor vehicle. Appellant insists that such conclusion is error, and assails the credibility and competency of witness Guzman. Credibility of witnesses is a question of fact (Rumbaoa vs. Arzaga, 84 Phil. 812; Lim vs. Calaguas, 83 Phil. 796) and, therefore, not reviewable by the Supreme Court. (Abeto vs. People, 90 Phil. 581). The objection to patrolman Guzman's competency because he was not presented as an expert witness, nor did he see the incident actually happen, is untenable. What Guzman testified to are what he saw in his ocular investigation, such as the two (2) sets of bloodstains and the 15 paces distance between them, that were facts derived from his own perception.1wph1.t The Court of Appeals gave no credence to the claim that the deceased suddenly darted from behind the parked car. Neither did the trial court do so, considering the lack of corroboration of petitioner's version, and the circumstance that the victim, being a grown-up man, and not a child, would not have ignored the noise of the oncoming vehicle, there being no reason shown for his disregarding the obvious danger. At any rate, that the accident could not be avoided because the victim was so close to the truck when he, as alleged by appellant, suddenly darted across the street, does not exculpate the accused, since the latter was driving at excessive speed. The fact that a pedestrian came into the path of the car suddenly and so close that the driver could not stop and avoid striking him will not excuse the driver, where the car was being driven at an unreasonable rate of speed under the circumstances. (5 Am. Jur. p. 612, sec. 195). While the general rule is that a driver is not held accountable just because he failed to take the wisest choice in a sudden emergency, the rule does not apply where the emergency is of the driver's own creation or devising. The other assigned errors raise questions of fact and credibility which this Court is not at liberty to revise. We, therefore, find no error in the appealed decision, and the same is hereby affirmed. Costs against appellant, William Addenbrook y Barker. So ordered. Concepcion, C.J., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur. [G.R. No. L-8328. May 18, 1956.]

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.

DECISION MONTEMAYOR, J.: On August 22, 1950, Efren Magno went to the 3-story house of Antonio Pealoza, 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 attorneys fees, with costs. On appeal to the Court of Appeals, the latter affirmed the judgment with slight modification by reducing the attorneys 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 Pealozas 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 toDefendant 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 soAppellants wire would have been 11 3/8 (inches) more than the required distance of three feet from the edge of the media agua. It is also a fact, however, that after the 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 Pealoza. 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 DefendantAppellant 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 Defendantelectric 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, neverthelessPlaintiffs 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 latters 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.

G.R. No. L-57079 September 29, 1989 PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, vs.COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents. REGALADO, J.: This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered. 2 PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations. 5 On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads: IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as exemplary damages, with legal rate of interest from the date of the filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party plaintiff has paid to the plaintiff. With costs against the defendant. 6 From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Thirdparty 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 B1 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 11/2 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 arguendothat 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. Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur. G.R. No. L-21291 March 28, 1969 PRECIOLITA V. CORLISS, plaintiff-appellant, vs.THE MANILA RAILROAD CO., defendant-appellant.. FERNANDO, J.: Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with reason. The future, bright with promise, looms ahead. One's powers are still to be tested, but one feels ready for whatever challenge may come his way. There is that heady atmosphere of self-confidence, at times carried to excess. The temptation to take risks is there, ever so often, difficult, if not impossible, to resist. There could be then a lessening of prudence and foresight, qualities usually associated with age. For death seems so remote and contingent an event. Such is not always the case though, and a slip may be attended with consequences at times unfortunate, even fatal. Some such thought apparently was in the mind of the lower court when it dismissed the complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim tragedy, when the jeep he was driving collided with a locomotive of defendant-appellee Manila Railroad Company, close to midnight on the evening of Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed from, the lower court, after summarizing the evidence, concluded that the deceased "in his eagerness to beat, so to speak, the oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he became the victim of his own miscalculation." 1 The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal direct to us, the amount sought in the concept of damages reaching the sum of P282,065.40. An examination of the evidence of record fails to yield a basis for a reversal of the decision appealed from. We affirm. According to the decision appealed from, there is no dispute as to the following: "In December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time of the accident, he was driving the fatal jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained serious physical injuries and burns." 2

Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, ..., that at the time of the accident, he also awaiting transportation at the entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that while there he saw the jeep coming towards the Base. He said that said jeep slowed down before reaching the crossing, that it made a brief stop but that it did not stop dead stop. Elaborating, he declared that while it was slowing down, Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also testified that he could see the train coming from the direction of San Fernando and that he heard a warning but that it was not sufficient enough to avoid the accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff, testified that on the night of February 21, 1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep going towards the direction of Clark Field. He stated that he heard the whistle of the locomotive and saw the collision. The jeep, which caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the tooting of the horn. It did not stop at the railroad crossing, according to him." 4 After which reference was made to the testimony of the main witness for defendant-appellee, Teodorico Capili, "who was at the engine at the time of the mishap," and who "testified that before the locomotive, which had been previously inspected and found to be in good condition approached, the crossing, that is, about 300 meters away, he blew the siren and repeated it in compliance with the regulations until he saw the jeep suddenly spurt and that although the locomotive was running between 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was caught in the middle of the tracks." 5 1. The above finding as to the non-existence of negligence attributable to defendant-appellee Manila Railroad Company comes to us encased in the armor of what admittedly appears to be a careful judicial appraisal and scrutiny of the evidence of record. It is thus proof against any attack unless sustained and overwhelming. Not that it is invulnerable, but it is likely to stand firm in the face of even the most formidable barrage. In the more traditional terminology, the lower court judgment has in its favor the presumption of correctness. It is entitled to great respect. After all, the lower court had the opportunity of weighing carefully what was testified to and apparently did not neglect it. There is no affront to justice then if its finding be accorded acceptance subject of course the contingency of reversal if error or errors, substantial in character, be shown in the conclusion thus arrived at. It is a fair statement of the governing, principle to say that the appellate function is exhausted when there is found to be a rational basis for the result reached by the trial court. As was held in a 1961 decision: "We have already ruled, that when the credibility of witnesses is the one at issue, the trial court's judgment as to their degree of credence deserves serious

consideration by this Court." 6 An earlier expression of the same view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record, we find no reason for rejecting the findings of the court below. The questions raised hinge on credibility and it is well-settled that in the absence of compelling reasons, its determination is best left to the trial judge why had the advantage of hearing the parties testify and observing their demeanor on the witness stand." 7 In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record suggests any arbitrary or abusive conduct on the part of the trial judge in the formulation of the ruling. His conclusion on the matter is sufficiently borne out by the evidence presented. We are denied, therefore, the prerogative to disturb that finding, consonant to the time honored tradition of the Tribunal to hold trial judges better situated to make conclusions on questions of fact'." 8 On this ground alone we can rest the affirmance of the judgment appealed from.lwphi1.et 2. Nor is the result different even if no such presumption were indulged in and the matter examined as if we were exercising original and not appellate jurisdiction. The sad and deplorable situation in which plaintiff-appellant now finds herself, to the contrary notwithstanding we find no reason for reversing the judgment of the lower court. This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causes damage to another, there being negligence, is under obligation to pay for the damage done. 9 Unless it could be satisfactorily shown, therefore, that defendant-appellee was guilty of negligence then it could not be held liable. The crucial question, therefore, is the existence of negligence. The above Civil Code provision, which is a reiteration of that found in the Civil Code of Spain, formerly applicable in this jurisdiction, 10 had been interpreted in earlier decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co., 11 Manresa was cited to the following effect "'Among the questions most frequently raised and upon which the majority of cases have been decided with respect to the application of this liability, are those referring to the determination of the damage or prejudice, and to the fault or negligence of the person responsible therefor. These are the two indispensable factors in the obligations under discussion, for without damage or prejudice there can be no liability, and although this element is present no indemnity can be awarded unless arising from some person's fault or negligence'." Negligence was defined by us in two 1912 decisions, United States v. Juanillo 12 and United States v. Barias. 13 Cooley' formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to observe for the protection of the interests of another person that degree of care, precaution and vigilance which the circumstance justly demand whereby such other person suffers injury." There was

likewise a reliance on Ahern v. Oregon Telephone Co. 14 Thus: "Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances." To repeat, by such a test, no negligence could be imputed to defendant-appellee, and the action of plaintiff-appellee must necessary fail. The facts being what they are, compel the conclusion that the liability sought to be fastened on defendantappellee had not arisen. 3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on the ground that there was a failure to appreciate the true situation. Thus the first three assigned errors are factual in character. The third assigned error could be summarily disposed of. It would go against the evidence to maintain the view that the whistle was not sounded and the brakes not applied at a distance of 300 meters before reaching the crossing. The first two assigned errors would make much of the failure of the lower court to hold that the crossing bars not having been put down and there being no guard at the gatehouse, there still was a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who drove the engine, was not qualified to do so at the time of the accident. For one cannot just single out circumstance and then confidently assign to it decisive weight and significance. Considered separately, neither of the two above errors assigned would call for a judgment different in character. Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. The quantum of proof required still not been met. The alleged errors fail of their said effect. The case for plaintiffappellant, such as it had not been improved. There is no justification for reversing the judgment of the lower court. It cannot be stressed too much that the decisive considerations are too variable, too dependent in the lid analysis upon a common sense estimate of the situation as it presented itself to the parties for us to be able to say that this or that element having been isolated, negligence is shown. The factors that enter the judgment are too many and diverse for us to imprison them in a formula sufficient of itself to yield the correct answer to the multi-faceted problems the question of negligence poses. Every case must be dependent on its facts. The circumstances indicative of lack of due care must be judged in the light of what could reasonably be expected of the parties. If the objective standard of prudence be met, then negligence is ruled out. In this particular case, it would be to show less than fidelity to the controlling facts to impute negligence to

defendant-appellee. The first three errors assigned certainly do not call for that conclusion. 4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant apparently had in mind this portion of the opinion of the lower court: "The weight of authorities is to the effect that a railroad track is in itself a warning or a signal of danger to those who go upon it, and that those who, for reasons of their own, ignore such warning, do so at their own risk and responsibility. Corliss Jr., who undoubtedly had crossed the checkpoint frequently, if not daily, must have known that locomotive engines and trains usually pass at that particular crossing where the accident had taken place." 15 Her assignment of error, however, would single out not the above excerpt from the decision appealed from but what to her is the apparent reliance of the lower court on Mestres v. Manila Electric Railroad & Light Co. 16and United States v. Manlabat & Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A person in control of an automobile who crosses a railroad, even at a regular road crossing, and who does not exercise that precaution and that control over it as to be able to stop the same almost immediately upon the appearance of a train, is guilty of criminal negligence, providing a collision occurs and injury results. Considering the purposes and the general methods adopted for the management of railroads and railroad trains, we think it is incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroad crossing cautiously and carefully. He should look and listen and do everything that a reasonably prudent man would do before he attempts to cross the track." The Mestres doctrine in a suit arising from a collision between an automobile and a street car is substantially similar. Thus: "It may be said, however, that, where a person is nearing a street crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who can most readily adjust himself to the exigencies of the case, and where such person can do so more readily, the motorman has a right to presume that such duty will be performed." It is true, as plaintiff-appellant would now allege that there has been a drift away from the apparent rigid and inflexible doctrine thus set forth in the two above cases evidenced by Lilius v. Manila Railroad Co., 18 the controlling facts of which, however, are easily distinguishable from what had been correctly ascertained in the present case. Such a deviation from the earlier principle announced is not only true of this jurisdiction but also of the United States. This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the following to say: "Especially noteworthy in this respect is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard once for all,' which would require an automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming to get out of the car. The basic idea behind this is

sound enough: it is by no means proper care to cross a railroad track without taking reasonable precautions against a train, and normally such precautions will require looking, hearing, and a stop, or at least slow speed, where the view is obstructed." 19 Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where, according to Prosser, it being shown that "the only effective stop must be made upon the railway tracks themselves, in a position of obligation danger, the court disregarded any such uniform rule, rejecting the 'get out of the car' requirement as 'an uncommon precaution, likely to be futile and sometimes even dangerous,' and saying that the driver need not always stop. 'Illustrations such as these,' said Mr. Justice Cardozo 'bear witness to the need for caution in framing standards of behavior that amount to rules of law.... Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal." 21 What Justice Cardozo announced would merely emphasize what was set forth earlier that each and every, case on questions of negligence is to be decided in accordance with the peculiar circumstances that present themselves. There can be no hard and fast rule. There must be that observance of that degree of care, precaution, and vigilance which the situation demands. Thus defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it. What commends itself for acceptance is this conclusion arrived at by the lower court: "Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of the deceased and his familiarity with the setup of the checkpoint, the existence of the tracks; and on the further fact that the locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to avoid a possible accident and this consisted simply in stopping his vehicle before the crossing and allowing the train to move on. A prudent man under similar circumstances would have acted in this manner. This, unfortunately, Corliss, Jr. failed to do." 22 WHEREFORE, the decision of the lower court of November 29, 1962 dismissing the complaint, is affirmed. Without pronouncement as to costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ., concur.

This is a petition for review on certiorari of the decision of the Court of Appeals affirming with modification the Regional Trial Court's award of damages to private respondents for the death of relatives as a result of the sinking of petitioner's vessel. In April of 1980, private respondent Ramon Miranda purchased from the Negros Navigation Co., Inc. four special cabin tickets (#74411, 74412, 74413 and 74414) for his wife, daughter, son and niece who were going to Bacolod City to attend a family reunion. The tickets were for Voyage No. 457-A of the M/V Don Juan, leaving Manila at 1:00 p.m. on April 22, 1980. The ship sailed from the port of Manila on schedule. At about 10:30 in the evening of April 22, 1980, the Don Juan collided off the Tablas Strait in Mindoro, with the M/T Tacloban City, an oil tanker owned by the Philippine National Oil Company (PNOC) and the PNOC Shipping and Transport Corporation (PNOC/STC). As a result, the M/V Don Juan sank. Several of her passengers perished in the sea tragedy. The bodies of some of the victims were found and brought to shore, but the four members of private respondents' families were never found. Private respondents filed a complaint on July 16, 1980 in the Regional Trial Court of Manila, Branch 34, against the Negros Navigation, the Philippine National Oil Company (PNOC), and the PNOC Shipping and Transport Corporation (PNOC/STC), seeking damages for the death of Ardita de la Victoria Miranda, 48, Rosario V. Miranda, 19, Ramon V. Miranda, Jr., 16, and Elfreda de la Victoria, 26. In its answer, petitioner admitted that private respondents purchased ticket numbers 74411, 74412, 74413 and 74414; that the ticket numbers were listed in the passenger manifest; and that the Don Juan left Pier 2, North Harbor, Manila on April 22, 1980 and sank that night after being rammed by the oil tanker M/T Tacloban City, and that, as a result of the collision, some of the passengers of the M/V Don Juan died. Petitioner, however, denied that the four relatives of private respondents actually boarded the vessel as shown by the fact that their bodies were never recovered. Petitioner further averred that the Don Juan was seaworthy and manned by a full and competent crew, and that the collision was entirely due to the fault of the crew of the M/T Tacloban City. On January 20, 1986, the PNOC and petitioner Negros Navigation Co., Inc. entered into a compromise agreement whereby petitioner assumed full responsibility for the payment and satisfaction of all claims arising out of or in connection with the collision and releasing the PNOC and the PNOC/STC from any liability to it. The agreement was subsequently held by the trial court to be binding upon petitioner, PNOC and PNOC/STC. Private respondents did not join in the agreement.

G.R. No. 110398 November 7, 1997 NEGROS NAVIGATION CO., INC., petitioner, vs.THE COURT OF APPEALS, RAMON MIRANDA, SPS. RICARDO and VIRGINIA DE LA VICTORIA, respondents. MENDOZA, J.:

After trial, the court rendered judgment on February 21, 1991, the dispositive portion of which leads as follows: WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the plaintiffs, ordering all the defendants to pay jointly and severally to the plaintiffs damages as follows: To Ramon Miranda: P42,025.00 for actual damages; P152,654.55 as compensatory damages for loss of earning capacity of his wife; P90,000.00 as compensatory damages for wrongful death of three (3) victims; P300,000.00 as moral damages; P50,000.00 as exemplary damages, all in the total amount of P634,679.55; and P40,000.00 as attorney's fees. To Spouses Ricardo and Virginia de la Victoria: P12,000.00 for actual damages; P158,899.00 as compensatory damages for loss of earning capacity; P30,000.00 as compensatory damages for wrongful death; P100,000.00 as moral damages; P20,000.00 as exemplary damages, all in the total amount of P320,899.00; and P15,000.00 as attorney's fees. On appeal, the Court of Appeals 1 affirmed the decision of the Regional Trial Court with modification 1. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiff-appellee Ramon Miranda the amount of P23,075.00 as actual damages instead of P42,025.00; 2. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiff-appellee Ramon Miranda the amount of P150,000.00, instead of P90,000.00, as compensatory damages for the death of his wife and two children; 3. Ordering and sentencing defendants-appellants, jointly and severally, to pay plaintiffs-appellees Dela Victoria spouses the amount of P50,000.00, instead of P30,000.00, as compensatory damages for the death of their daughter Elfreda Dela Victoria; Hence this petition, raising the following issues: (1) whether the members of private respondents' families were actually passengers of the Don Juan;

(2) whether the ruling in Mecenas v. Court of Appeals, 2 finding the crew members of petitioner to be grossly negligent in the performance of their duties, is binding in this case; (3) whether the total loss of the M/V Don Juan extinguished petitioner's liability; and (4) whether the damages awarded by the appellate court are excessive, unreasonable and unwarranted. First. The trial court held that the fact that the victims were passengers of the M/V Don Juan was sufficiently proven by private respondent Ramon Miranda, who testified that he purchased tickets numbered 74411, 74412, 74413, and 74414 at P131.30 each from the Makati office of petitioner for Voyage No. 47-A of the M/V Don Juan, which was leaving Manila on April 22, 1980. This was corroborated by the passenger manifest (Exh. E) on which the numbers of the tickets and the names of Ardita Miranda and her children and Elfreda de la Victoria appear. Petitioner contends that the purchase of the tickets does not necessarily mean that the alleged victims actually took the trip. Petitioner asserts that it is common knowledge that passengers purchase tickets in advance but do not actually use them. Hence, private respondent should also prove the presence of the victims on the ship. The witnesses who affirmed that the victims were on the ship were biased and unreliable. This contention is without merit. Private respondent Ramon Miranda testified that he personally took his family and his niece to the vessel on the day of the voyage and stayed with them on the ship until it was time for it to leave. There is no reason he should claim members of his family to have perished in the accident just to maintain an action. People do not normally lie about so grave a matter as the loss of dear ones. It would be more difficult for private respondents to keep the existence of their relatives if indeed they are alive than it is for petitioner to show the contrary. Petitioner's only proof is that the bodies of the supposed victims were not among those recovered from the site of the mishap. But so were the bodies of the other passengers reported missing not recovered, as this Court noted in the Mecenas 3 case. Private respondent Miranda's testimony was corroborated by Edgardo Ramirez. Ramirez was a seminarian and one of the survivors of the collision. He testified that he saw Mrs. Miranda and Elfreda de la Victoria on the ship and that he talked with them. He knew Mrs. Miranda who was his teacher in the grade school. He also knew Elfreda who was his childhood friend and townmate. Ramirez said he was with Mrs. Miranda and her children and niece from 7:00 p.m. until 10:00 p.m. when the collision happened and that he in fact had dinner with them. Ramirez said he and Elfreda stayed on the deck after dinner and it was there where they were jolted by the collision of the two vessels. Recounting the moments after the collision, Ramirez testified that Elfreda ran to fetch Mrs. Miranda. He escorted her to the room and then tried to go back to the deck when the lights went out. He tried to return to the cabin but was not able to do so

because it was dark and there was a stampede of passengers from the deck. Petitioner casts doubt on Ramirez' testimony, claiming that Ramirez could not have talked with the victims for about three hours and not run out of stories to tell, unless Ramirez had a "storehouse" of stories. But what is incredible about acquaintances thrown together on a long journey staying together for hours on end, in idle conversation precisely to while the hours away? Petitioner also points out that it took Ramirez three (3) days before he finally contacted private respondent Ramon Miranda to tell him about the fate of his family. But it is not improbable that it took Ramirez three days before calling on private respondent Miranda to tell him about the last hours of Mrs. Miranda and her children and niece, in view of the confusion in the days following the collision as rescue teams and relatives searched for survivors. Indeed, given the facts of this case, it is improper for petitioner to even suggest that private respondents' relatives did not board the ill-fated vessel and perish in the accident simply because their bodies were not recovered. Second. In finding petitioner guilty of negligence and in failing to exercise the extraordinary diligence required of it in the carriage of passengers, both the trial court and the appellate court relied on the findings of this Court inMecenas v. Intermediate Appellate Court, 4 which case was brought for the death of other passengers. In that case it was found that although the proximate cause of the mishap was the negligence of the crew of the M/TTacloban City, the crew of the Don Juan was equally negligent as it found that the latter's master, Capt. Rogelio Santisteban, was playing mahjong at the time of collision, and the officer on watch, Senior Third Mate Rogelio De Vera, admitted that he failed to call the attention of Santisteban to the imminent danger facing them. This Court found that Capt. Santisteban and the crew of the M/V Don Juan failed to take steps to prevent the collision or at least delay the sinking of the ship and supervise the abandoning of the ship. Petitioner Negros Navigation was found equally negligent in tolerating the playing of mahjong by the ship captain and other crew members while on board the ship and failing to keep the M/V Don Juan seaworthy so much so that the ship sank within 10 to 15 minutes of its impact with the M/T Tacloban City. In addition, the Court found that the Don Juan was overloaded. The Certificate of Inspection, dated August 27, 1979, issued by the Philippine Coast Guard Commander at Iloilo City stated that the total number of persons allowed on the ship was 864, of whom 810 are passengers, but there were actually 1,004 on board the vessel when it sank, 140 persons more than the maximum number that could be safely carried by it.

Taking these circumstances together, and the fact that the M/V Don Juan, as the faster and better-equipped vessel, could have avoided a collision with the PNOC tanker, this Court held that even if the Tacloban City had been at fault for failing to observe an internationally-recognized rule of navigation, the Don Juan was guilty of contributory negligence. Through Justice Feliciano, this Court held: The grossness of the negligence of the "Don Juan" is underscored when one considers the foregoing circumstances in the context of the following facts: Firstly, the "Don Juan" was more than twice as fast as the "Tacloban City." The "Don Juan's" top speed was 17 knots; while that of the "Tacloban City" was 6.3. knots. Secondly, the "Don Juan" carried the full complement of officers and crew members specified for a passenger vessel of her class. Thirdly, the "Don Juan" was equipped with radar which was functioning that night. Fourthly, the "Don Juan's officer on-watch had sighted the "Tacloban City" on his radar screen while the latter was still four (4) nautical miles away. Visual confirmation of radar contact was established by the "Don Juan" while the "Tacloban City" was still 2.7 miles away. In the total set of circumstances which existed in the instant case, the "Don Juan," had it taken seriously its duty of extraordinary diligence, could have easily avoided the collision with the "Tacloban City." Indeed, the "Don Juan" might well have avoided the collision even if it had exercised ordinary diligence merely. It is true that the "Tacloban City" failed to follow Rule 18 of the International Rules of the Road which requires two (2) power-driven vessels meeting end on or nearly end on each to alter her course to starboard (right) so that each vessel may pass on the port side (left) of the other. The "Tacloban City," when the two (2) vessels were only three-tenths (0.3) of a mile apart, turned (for the second time) 15 to port side while the "Don Juan" veered hard to starboard. . . . [But] "route observance" of the International Rules of the Road will not relieve a vessel from responsibility if the collision could have been avoided by proper care and skill on her part or even by a departure from the rules. In the petition at bar, the "Don Juan" having sighted the "Tacloban City" when it was still a long way off was negligent in failing to take early preventive action and in allowing the two (2) vessels to come to such close quarters as to render the collision inevitable when there was no necessity for passing so near to the "Tacloban City" as to create that hazard or inevitability, for the "Don Juan" could choose its own distance. It is noteworthy that the "Tacloban City," upon turning hard to port shortly before the moment of collision, signalled its intention to do so by giving two (2) short blasts with its horn. The "Don Juan" gave

no answering horn blast to signal its own intention and proceeded to turn hard to starboard. We conclude that Capt. Santisteban and Negros Navigation are properly held liable for gross negligence in connection with the collision of the "Don Juan" and "Tacloban City" and the sinking of the "Don Juan" leading to the death of hundreds of passengers. . . .5 Petitioner criticizes the lower court's reliance on the Mecenas case, arguing that, although this case arose out of the same incident as that involved in Mecenas, the parties are different and trial was conducted separately. Petitioner contends that the decision in this case should be based on the allegations and defenses pleaded and evidence adduced in it or, in short, on the record of this case. The contention is without merit. What petitioner contends may be true with respect to the merits of the individual claims against petitioner but not as to the cause of the sinking of its ship on April 22, 1980 and its liability for such accident, of which there can only be one truth. Otherwise, one would be subscribing to the sophistry: truth on one side of the Pyrenees, falsehood on the other! Adherence to the Mecenas case is dictated by this Court's policy of maintaining stability in jurisprudence in accordance with the legal maxim "stare decisis et non quieta movere" (Follow past precedents and do not disturb what has been settled.) Where, as in this case, the same questions relating to the same event have been put forward by parties similarly situated as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate the same issue. 6 In Woulfe v. Associated Realties Corporation, 7the Supreme Court of New Jersey held that where substantially similar cases to the pending case were presented and applicable principles declared in prior decisions, the court was bound by the principle of stare decisis. Similarly, in State ex rel. Tollinger v. Gill, 8 it was held that under the doctrine of stare decisis a ruling is final even as to parties who are strangers to the original proceeding and not bound by the judgment under the res judicata doctrine. The Philadelphia court expressed itself in this wise: "Stare decisis simply declares that, for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different." 9 Thus, in J.M. Tuason v. Mariano, supra, this Court relied on its rulings in other cases involving different parties in sustaining the validity of a land title on the principle of"stare decisis et non quieta movere." Indeed, the evidence presented in this case was the same as those presented in the Mecenas case, to wit: Document Mecenas case This case

Decision of Commandant, Exh. 10 10 Exh. 11-B-NN/X Phil. Coast Guard in BMI Case No. 415-80 dated 3/26/81 Decision of the Minister Exh. 11 11 Exh. ZZ of National Defense dated 3/12/82 Resolution on the Exh. 13 12 Exh. AAA motion for reconsideration (private of the decision of the respondents) Minister of National defense dated 7/27/84 Certificate of Exh. 1-A 13 Exh. 19-NN inspection dated 8/27/79 Certificate of Stability Exh. 6-A 14 Exh. 19-D-NN dated 12/16/76 Nor is it true that the trial court merely based its decision on the Mecenas case. The trial court made its own independent findings on the basis of the testimonies of witnesses, such as Senior Third Mate Rogelio de Vera, who incidentally gave substantially the same testimony on petitioner's behalf before the Board of Marine Inquiry. The trial court agreed with the conclusions of the then Minister of National Defense finding both vessels to be negligent. Third. The next issue is whether petitioner is liable to pay damages notwithstanding the total loss of its ship. The issue is not one of first impression. The rule is well-entrenched in our jurisprudence that a shipowner may be held liable for injuries to passengers notwithstanding the exclusively real and hypothecary nature of maritime law if fault can be attributed to the shipowner. 15 In Mecenas, this Court found petitioner guilty of negligence in (1) allowing or tolerating the ship captain and crew members in playing mahjong during the voyage, (2) in failing to maintain the vessel seaworthy and (3) in allowing the ship to carry more passengers than it was allowed to carry. Petitioner is, therefore, clearly liable for damages to the full extent. Fourth. Petitioner contends that, assuming that the Mecenas case applies, private respondents should be allowed to claim only P43,857.14 each as moral damages because in the Mecenas case, the amount of P307,500.00 was awarded to the seven children of the Mecenas couple. Under petitioner's formula, Ramon Miranda should receive P43,857.14, while the De la Victoria spouses should receive P97,714.28. Here is where the principle of stare decisis does not apply in view of differences in the personal circumstances of the victims. For that matter, differentiation would be justified even if private respondents had joined the private respondents in the Mecenas case. The doctrine of stare decisis works as a bar only against issues litigated in a previous case. Where the issue involved was not raised nor presented to the court and not passed upon by the court in the previous case, the decision in the

previous case is not stare decisis of the question presently presented. 16 The decision in the Mecenas case relates to damages for which petitioner was liable to the claimants in that case. In the case at bar, the award of P300,000.00 for moral damages is reasonable considering the grief petitioner Ramon Miranda suffered as a result of the loss of his entire family. As a matter of fact, three months after the collision, he developed a heart condition undoubtedly caused by the strain of the loss of his family. The P100,000.00 given to Mr. and Mrs. de la Victoria is likewise reasonable and should be affirmed. As for the amount of civil indemnity awarded to private respondents, the appellate court's award of P50,000.00 per victim should be sustained. The amount of P30,000.00 formerly set in De Lima v. Laguna Tayabas Co., 17 Heirs of Amparo delos Santos v. Court of Appeals, 18 and Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court19 as benchmark was subsequently increased to P50,000.00 in the case of Sulpicio Lines, Inc. v. Court of Appeals, 20 which involved the sinking of another interisland ship on October 24, 1988. We now turn to the determination of the earning capacity of the victims. With respect to Ardita Miranda, the trial court awarded damages computed as follows: 21 In the case of victim Ardita V. Miranda whose age at the time of the accident was 48 years, her life expectancy was computed to be 21.33 years, and therefore, she could have lived up to almost 70 years old. Her gross earnings for 21.33 years based on P10,224.00 per annum, would be P218,077.92. Deducting therefrom 30% as her living expenses, her net earnings would be P152,654.55, to which plaintiff Ramon Miranda is entitled to compensatory damages for the loss of earning capacity of his wife. In considering 30% as the living expenses of Ardita Miranda, the Court takes into account the fact that plaintiff and his wife were supporting their daughter and son who were both college students taking Medicine and Law respectively. In accordance with the ruling in Villa-Rey Transit, Inc. v. Court of Appeals, 22 we think the life expectancy of Ardita Miranda was correctly determined to be 21.33 years, or up to age 69. Petitioner contends, however, that Mrs. Miranda would have retired from her job as a public school teacher at 65, hence her loss of earning capacity should be reckoned up to 17.33 years only. The accepted formula for determining life expectancy is 2/3 multiplied by (80 minus the age of the deceased). It may be that in the Philippines the age of retirement generally is 65 but, in calculating the life expectancy of individuals for the purpose of determining loss of earning capacity under Art. 2206(1) of the Civil Code, it is assumed that the deceased would have earned

income even after retirement from a particular job. In this case, the trial court took into account the fact that Mrs. Miranda had a master's degree and a good prospect of becoming principal of the school in which she was teaching. There was reason to believe that her income would have increased through the years and she could still earn more after her retirement, e.g., by becoming a consultant, had she not died. The gross earnings which Mrs. Miranda could reasonably be expected to earn were it not for her untimely death was, therefore, correctly computed by the trial court to be P218,077.92 (given a gross annual income of P10,224.00 and life expectancy of 21.33 years). Petitioner contends that from the amount of gross earnings, 60% should be deducted as necessary living expenses, not merely 30% as the trial court allowed. Petitioner contends that 30% is unrealistic, considering that Mrs. Miranda's earnings would have been subject to taxes, social security deductions and inflation. We agree with this contention. In Villa-Rey Transit, Inc. v. Court of Appeals, 23 the Court allowed a deduction of P1,184.00 for living expenses from the P2,184.00 annual salary of the victim, which is roughly 54.2% thereof. The deceased was 29 years old and a training assistant in the Bacnotan Cement Industries. In People v. Quilation, 24the deceased was a 26-year old laborer earning a daily wage. The court allowed a deduction of P120,000.00 which was 51.3% of his annual gross earnings of P234,000.00. In People v. Teehankee, 25 the court allowed a deduction of P19,800.00, roughly 42.4% thereof from the deceased's annual salary of P46,659.21. The deceased, Maureen Hultman, was 17 years old and had just received her first paycheck as a secretary. In the case at bar, we hold that a deduction of 50% from Mrs. Miranda's gross earnings (P218,077.92) would be reasonable, so that her net earning capacity should be P109,038.96. There is no basis for supposing that her living expenses constituted a smaller percentage of her gross income than the living expenses in the decided cases. To hold that she would have used only a small part of her income for herself, a larger part going to the support of her children would be conjectural and unreasonable. As for Elfreda de la Victoria, the trial court found that, at the time of her death, she was 26 years old, a teacher in a private school in Malolos, Bulacan, earning P6,192.00 per annum. Although a probationary employee, she had already been working in the school for two years at the time of her death and she had a general efficiency rating of 92.85% and it can be presumed that, if not for her untimely death, she would have become a regular teacher. Hence, her loss of earning capacity is P111,456.00, computed as follows: net earning = life x gross less reasonable capacity (x) expectancy annual & necessary income living expenses (50%) x = [2(80-26)] x [P6,192.00 - P3,096.00] 3

= 36 x 3,096.00 = P111,456.00 On the other hand, the award of actual damages in the amount of P23,075.00 was determined by the Court of Appeals on the basis receipts submitted by private respondents. This amount is reasonable considering the expenses incurred by private respondent Miranda in organizing three search teams to look for his family, spending for transportation in going to places such as Batangas City and Iloilo, where survivors and the bodies of other victims were found, making long distance calls, erecting a monument in honor of the four victims, spending for obituaries in the Bulletin Today and for food, masses and novenas. Petitioner's contention that the expenses for the erection of a monument and other expenses for memorial services for the victims should be considered included in the indemnity for death awarded to private respondents is without merit. Indemnity for death is given to compensate for violation of the rights of the deceased, i.e., his right to life and physical integrity. 26 On the other hand, damages incidental to or arising out of such death are for pecuniary losses of the beneficiaries of the deceased. As for the award of attorney's fees, we agree with the Court of Appeals that the amount of P40,000.00 for private respondent Ramon Miranda and P15,000.00 for the de la Victoria spouses is justified. The appellate court correctly held: The Mecenas case cannot be made the basis for determining the award for attorney's fees. The award would naturally vary or differ in each case. While it is admitted that plaintiff-appellee Ramon Miranda who is himself a lawyer, represented also plaintiffsappellees Dela Victoria spouses, we note that separate testimonial evidence were adduced by plaintiffappellee Ramon Miranda (TSN, February 26, 1982, p. 6) and plaintiffs-appellees spouses Dela Victoria (TSN, August 13, 1981, p. 43). Considering the amount of work and effort put into the case as indicated by the voluminous transcripts of stenographic notes, we find no reason to disturb the award of P40,000.00 for plaintiff-appellee Ramon Miranda and P15,000.00 for plaintiffs-appellees Dela Victoria spouses. 27 The award of exemplary damages should be increased to P300,000.00 for Ramon Miranda and P100,000.00 for the de la Victoria spouses in accordance with our ruling in the Mecenas case: Exemplary damages are designed by our civil law to permit the courts to reshape behaviour that is socially deleterious in its consequence by creating negative incentives or deterrents against such behaviour. In requiring compliance with the standard of extraordinary diligence, a standard which is in fact that of the highest possible degree of diligence, from common carriers and in creating a presumption of

negligence against them, the law seeks to compel them to control their employees, to tame their reckless instincts and to force them to take adequate care of human beings and their property. The Court will take judicial notice of the dreadful regularity with which grievous maritime disasters occur in our waters with massive loss of life. The bulk of our population is too poor to afford domestic air transportation. So it is that notwithstanding the frequent sinking of passenger vessels in our waters, crowds of people continue to travel by sea. This Court is prepared to use the instruments given to it by the law for securing the ends of law and public policy. One of those instruments is the institution of exemplary damages; one of those ends, of special importance in an archipelagic state like the Philippines, is the safe and reliable carriage of people and goods by sea.28 WHEREFORE, the decision of the Court of Appeals is AFFIRMED with modification and petitioner is ORDERED to pay private respondents damages as follows: To private respondent Ramon Miranda: P23,075.00 for actual damages; P109,038.96 as compensatory damages for loss of earning capacity of his wife; P150,000.00 as compensatory damages for wrongful death of three (3) victims; P300,000.00 as moral damages; P300,000.00 as exemplary damages, all in the total amount of P882,113.96; and P40,000.00 as attorney's fees. To private respondents Spouses Ricardo and Virginia de la Victoria: P12,000.00 for actual damages; P111,456.00 as compensatory damages for loss of earning capacity; P50,000.00 as compensatory damages for wrongful death; P100,000.00 as moral damages; P100,000.00 as exemplary damages, all in the total amount of P373,456.00; and P15,000.00 as attorney's fees. Petitioners are further ordered to pay costs of suit. In the event the Philippine National Oil Company and/or the PNOC Shipping and Transport Corporation pay or are required to pay all or a portion of the amounts adjudged, petitioner Negros Navigation Co., Inc. shall reimburse either of them such amount or amounts as either may have paid, and in the event of failure of Negros Navigation Co., Inc., to make the necessary reimbursement, PNOC and/or PNOC/STC shall be entitled to a writ of execution without need of filing another action. SO ORDERED.

Regalado and Puno, JJ., concur. G.R. No. 79578 March 13, 1991 RADIO COMMUNICATIONS OF THE PHILIPPINES, INC. (RCPI), petitioner, vs. HON. COURT OF APPEALS, and SPOUSES MINERVA TIMAN and FLORES TIMAN, respondents. SARMIENTO, J.:p A social condolence telegram sent through the facilities of the petitioner gave rise to the present petition for review on certiorari assailing the decision 1 of the respondent Court of Appeals which affirmed in toto the judgment 2 of the trial court, dated February 14, 1985, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered: 1. Ordering the defendant RCPI to pay plaintiff the amount of P30,848.05 representing actual and compensatory damages; P10,000.00 as moral damages and P5,000.00 as exemplary damages. 2. Awarding of attorney's fees in the sum of P5,000.00. Costs against the defendant. SO ORDERED. 3 The facts as gleaned from the records of the case are as follows: On January 24, 1983, private respondents-spouses Minerva Timan and Flores Timan sent a telegram of condolence to their cousins, Mr. and Mrs. Hilario Midoranda, at Trinidad, Calbayog City, through petitioner Radio Communications of the Philippines, Inc. (RCPI, hereinafter) at Cubao, Quezon City, to convey their deepest sympathy for the recent death of the mother-in-law of Hilario Midoranda 4 to wit: MR. & MRS. HILARIO MIDORANDA TRINIDAD, CALBAYOG CITY MAY GOD GIVE YOU COURAGE AND STRENGTH TO BEAR YOUR LOSS. OUR DEEPEST SYMPATHY TO YOU AND MEMBERS OF THE FAMILY.

The condolence telegram was correctly transmitted as far as the written text was concerned. However, the condolence message as communicated and delivered to the addressees was typewritten on a "Happy Birthday" card and placed inside a "Christmasgram" envelope. Believing that the transmittal to the addressees of the aforesaid telegram in that nonsuch manner was done intentionally and with gross breach of contract resulting to ridicule, contempt, and humiliation of the private respondents and the addressees, including their friends and relatives, the spouses Timan demanded an explanation. Unsatisfied with RCPI's explanations in its letters, dated March 9 and April 20, 1983, the Timans filed a complaint for damages. 6 The parties stipulated at the pre-trial that the issue to be resolved by the trial court was: WHETHER or not the act of delivering the condolence message in a Happy Birthday" card with a "Christmasgram" envelope constitutes a breach of contract on the part of the defendant. If in the affirmative, whether or not plaintiff is entitled to damages. 7 The trial court rendered judgment in favor of the respondents Timans which was affirmed in toto by the Court of Appeals. RCPI now submits the following assignment of errors: I THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY ACTUAL AND COMPENSATORY DAMAGES IN THE AMOUNT OF P30,848.05. II THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY MORAL DAMAGES IN THE AMOUNT OF P10,000.00. III THE RESPONDENT COURT ERRED IN CONDEMNING PETITIONER TO PAY EXEMPLARY DAMAGES IN THE AMOUNT OF P5,000.00. M IV I THE RESPONDENT COURT ERRED IN CONDEMNING N PETITIONER TO PAY ATTORNEYS FEES IN THE AMOUNT E OF P5,000.00 PLUS COSTS OF SUIT. 8 R The four assigned errors are going to be discussed jointly because they are all based on the same findings of fact. & F We fully agree with the appellate court's endorsement of the trial L court's conclusion that RCPI, a corporation dealing in O telecommunications and offering its services to the public, is R engaged in a business affected with public interest. As such, it is Y bound to exercise that degree of diligence expected of it in the . performance of its obligation.9

One of RCPI's main arguments is that it still correctly transmitted the text of the telegram and was received by the addressees on time despite the fact that there was "error" in the social form and envelope used. 10 RCPI asserts that there was no showing that it has any motive to cause harm or damage on private respondents: Petitioner humbly submits that the "error" in the social form used does not come within the ambit of fraud, malice or bad faith as understood/defined under the law. 11 We do not agree. In a distinctly similar case, 12 and oddly also involving the herein petitioner as the same culprit, we held: Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes to transmit the message accurately . . . As a corporation, the petitioner can act only through its employees. Hence the acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable directly for the acts of its employees in the pursuit of petitioner's business is to deprive the general public availing of the services of the petitioner of an effective and adequate remedy. 13 Now, in the present case, it is self-evident that a telegram of condolence is intended and meant to convey a message of sorrow and sympathy. Precisely, it is denominated "telegram of condolence" because it tenders sympathy and offers to share another's grief. It seems out of this world, therefore, to place that message of condolence in a birthday card and deliver the same in a Christmas envelope for such acts of carelessness and incompetence not only render violence to good taste and common sense, they depict a bizarre presentation of the sender's feelings. They ridicule the deceased's loved ones and destroy the atmosphere of grief and respect for the departed. Anyone who avails of the facilities of a telegram company like RCPI can choose to send his message in the ordinary form or in a social form. In the ordinary form, the text of the message is typed on plain newsprint paper. On the other hand, a social telegram is placed in a special form with the proper decorations and embellishments to suit the occasion and the message and delivered in an envelope matching the purpose of the occasion and the words and intent of the message. The sender pays a higher amount for the social telegram than for one in the ordinary form. It is clear, therefore, that when RCPI typed the private respondents' message of condolence in a birthday card and delivered the same in a colorful Christmasgram envelope, it

committed a breach of contract as well as gross negligence. Its excuse that it had run out of social condolence cards and envelopes 14 is flimsy and unacceptable. It could not have been faulted had it delivered the message in the ordinary form and reimbursed the difference in the cost to the private respondents. But by transmitting it unfittinglythrough other special forms clearly, albeit outwardly, portraying the opposite feelings of joy and happiness and thanksgivingRCPI only exacerbated the sorrowful situation of the addressees and the senders. It bears stress that this botchery exposed not only the petitioner's gross negligence but also its callousness and disregard for the sentiments of its clientele, which tantamount to wanton misconduct, for which it must be held liable for damages. It is not surprising that when the Timans' telegraphic message reached their cousin, it became the joke of the Midorandas' friends, relatives, and associates who thought, and rightly so, that the unpardonable mix-up was a mockery of the death of the mother-in-law of the senders' cousin. Thus it was not unexpected that because of this unusual incident, which caused much embarrassment and distress to respondent Minerva Timan, he suffered nervousness and hypertension resulting in his confinement for three days starting from April 4, 1983 at the Capitol Medical Center in Quezon City. 15 The petitioner argues that "a court cannot rely on speculation, conjectures or guess work as to the fact and amount of damages, but must depend on the actual proof that damages had been suffered and evidence of the actual amount. 16 In other words, RCPI insists that there is no causal relation of the illness suffered by Mr. Timan with the foul-up caused by the petitioner. But that is a question of fact. The findings of fact of the trial court and the respondent court concur in favor of the private respondents. We are bound by such findingsthat is the general rule well-established by a long line of cases. Nothing has been shown to convince us to justify the relaxation of this rule in the petitioner's favor. On the contrary, these factual findings are supported by substantial evidence on record. Anent the award of moral and exemplary damages assigned as errors, the findings of the respondent court are persuasive. . . . When plaintiffs placed an order for transmission of their social condolence telegram, defendant did not inform the plaintiff of the exhaustion of such social condolence forms. Defendant-appellant accepted through its authorized agent or agency the order and received the corresponding compensation therefor. Defendant did not comply with its contract as intended by the parties and instead of transmitting the condolence message in an ordinary form, in accordance with its guidelines, placed the condolence message expressing sadness and sorrow in forms conveying joy and happiness. Under the circumstances, We cannot accept the defendant's plea of good faith predicated on such exhaustion of social

condolence forms. Gross negligence or carelessness can be attributed to defendant-appellant in not supplying its various stations with such sufficient and adequate social condolence forms when it held out to the public sometime in January, 1983, the availability of such social condolence forms and accepted for a fee the transmission of messages on said forms. Knowing that there are no such forms as testified to by its Material Control Manager Mateo Atienza, and entering into a contract for the transmission of messages in such forms, defendant-appellant committed acts of bad faith, fraud or malice. . . . 17 RCPI's argument that it can not be held liable for exemplary damages, being penal or punitive in character, 18 is without merit. We have so held in many cases, and oddly, quite a number of them likewise involved the herein petitioner as the transgressor. xxx xxx xxx . . . In contracts and quasi-contracts, exemplary damages may be awarded if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. There was gross negligence on the part of RCPI personnel in transmitting the wrong telegram, of which RCPI must be held liable. Gross carelessness or negligence constitutes wanton misconduct. xxx xxx xxx . . . punitive damages may be recovered for wilful or wantonly negligent acts in respect of messages, even though those acts are neither authorized nor ratified (Arkansas & L.R. Co. vs. Stroude 91 SW 18; West vs. Western U. Tel. Co., 17 P807; Peterson vs. Western U. Tel. Co., 77 NW 985; Brown vs. Western U. Tel. Co., 6 SE 146). Thus, punitive damages have been recovered for mistakes in the transmission of telegrams (Pittman vs. Western Union Tel. Co., 66 SO 977; Painter vs. Western Union Tel. Co., 84 SE 293) (emphasis supplied). 19 We wish to add a little footnote to this Decision. By merely reviewing the number of cases that has reached this Court in which the petitioner was time and again held liable for the same causes as in the present case breach of contract and gross negligencethe ineluctable conclusion is that it has not in any way reformed nor improved its services to the public. It must do so now or else next time the Court may be constrained to adjudge stricter sanctions. WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto. Costs against the petitioner.

SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur. G.R. No. 160283 October 14, 2005 JOHN KAM BIAK Y. CHAN, JR., Petitioner, vs. Iglesia Ni Cristo, Inc., Respondent. DECISION CHICO-NAZARIO, J.: Before Us is a petition for review on certiorari1 assailing the Decision2 of the Court of Appeals in CA-G.R. CV No. 65976, dated 25 September 2003. Said Decision denied the petitioners appeal from the decision of the Regional Trial Court (RTC), La Union, Branch 31, in Civil Case No. A-1646. THE FACTS The antecedents of the instant case are quite simple. The Aringay Shell Gasoline Station is owned by the petitioner. It is located in Sta. Rita East, Aringay, La Union, and bounded on the south by a chapel of the respondent. The gasoline station supposedly needed additional sewerage and septic tanks for its washrooms. In view of this, the services of Dioscoro "Ely" Yoro (Yoro), a retired general of the Armed Forces of the Philippines, was procured by petitioner, as the former was allegedly a construction contractor in the locality. Petitioner and Yoro executed a Memorandum of Agreement3 (MOA) on 28 February 1995 which is reproduced hereunder: MEMORANDUM OF AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This MEMORANDUM OF AGREEMENT, executed this 28th day of February, 1995, by and between: JOHN Y. CHAN, of legal age, single, and a resident of Aringay, La Union, now and hereinafter called the FIRST PARTY; GEN. ELY E. YORO, Jr., of legal age, married, and a resident of Damortis, Sto. Tomas, La Union, hereinafter referred to as the SECOND PARTY: WITNESSETH that: WHEREAS, the FIRST PARTY is the owner of a parcel of land located at Sta. Rita, Aringay, La Union. WHEREAS, the FIRST PARTY, desires to dig a septic tank for its perusal in the property bordering Iglesia ni Cristo. WHEREAS, the SECOND PARTY is willing to contract the intended digging of septic tank for the first party. WHEREAS, the FIRST PARTY and SECOND PARTY has (sic) agreed verbally as to the compensation of the said digging of septic tank. WHEREFORE, for and in consideration of the terms and covenants hereinbelow set forth, the FIRST PARTY hereby AGREES and ALLOWS the SECOND PARTY to undertake the

digging of the parcel of land for the exclusive purpose of having a septic tank. TERMS AND COVENANTS 1. The SECOND PARTY shall contract the said digging; 2. The FIRST PARTY shall have complete control over the number of personnel who will be entering the property for said contract; 3. The digging shall be allowed for a period of three (3) weeks only, commencing on March 28, 1995, unless extended by agreement of the parties; 4. Any damage within or outside the property of the FIRST PARTY incurred during the digging shall be borne by the SECOND PARTY; 5. In the event that valuable objects are found on the property, the same shall be divided among the parties as follows: FIRST PARTY - 60% SECOND PARTY - 40% 6. In the event that valuable objects are found outside the property line during the said digging, the same shall be divided among the parties as follows: FIRST PARTY - 35% SECOND PARTY - 65% 7. In case government or military interference or outside intervention is imminent, the FIRST PARTY hereby reserves the option to stop the digging at any stage thereof. IN WITNESS WHEREOF, We have hereunto set our hands on the day and year first above-written at Aringay, La Union.4 Diggings thereafter commenced. After some time, petitioner was informed by the members of the respondent that the digging traversed and penetrated a portion of the land belonging to the latter. The foundation of the chapel was affected as a tunnel was dug directly under it to the damage and prejudice of the respondent. On 18 April 1995, a Complaint5 against petitioner and a certain Teofilo Oller, petitioners engineer, was filed by the respondent before the RTC, La Union, Branch 31, docketed therein as Civil Case No. A-1646. Petitioner and Oller filed an Answer with Third-Party Complaint6 impleading Yoro as third-party defendant. Yoro filed an Answer to the Third-Party Complaint7 dated 13 July 1995. An Amended and Supplemental Complaint8 dated 30 August 1995 was later filed by the respondent already naming Yoro as a party-defendant, to which the petitioner and Oller filed an Answer.9 Yoro filed his own Answer.10 After four years of hearing the case, the trial court promulgated its Decision11 holding that the diggings were not intended for the construction of sewerage and septic tanks but were made to construct tunnels to find hidden treasure.12 The trial court adjudged the petitioner and Yoro solidarily liable to the respondent on a 35%-65% basis (the petitioner liable for the 35%), and absolving Oller from any liability, viz:

WHEREFORE, this Court renders judgment in favor of plaintiff IGLESIA NI CRISTO and against defendants JOHN KAMBIAK CHAN and DIOSCORO "ELY" YORO, JR. who are respectively solidarily liable to PLAINTIFF on a 35%-65% basis, with JOHN CHAN taking the 35% tab, Ordering the two (2) aforesaid DEFENDANTS to pay PLAINTIFF the following amounts: 1. SIX HUNDRED THIRTY-THREE THOUSAND FIVE HUNDRED NINETY-FIVE PESOS AND FIFTY CENTAVOS (P633,595.50); representing ACTUAL DAMAGES; 2. FIVE HUNDRED THOUSAND PESOS (P500,000.00) representing MORAL DAMAGES; 3. TEN MILLION PESOS (P10,000,000.00) as EXEMPLARY DAMAGES; 4. FIFTY THOUSAND PESOS (P50,000.00) as plaintiffs attorneys fees; and 5. TWENTY THOUSAND PESOS (P20,000.00) as litigation expenses. Defendant TEOFILO OLLER is absolved of any civil liability. Any counterclaim filed against PLAINTIFF IGLESIA NI CRISTO is dismissed.13 Petitioner filed a Notice of Appeal14 dated 18 August 1999. Yoro filed his own Notice of Appeal15 dated 20 August 1999. In a Resolution16 dated 19 November 1999, the trial court disallowed Yoros appeal for failure to pay the appellate court docket and other lawful fees within the reglementary period for taking an appeal.17 In view of Yoros failure to appropriately file an appeal, an order was issued for the issuance of a Writ of Execution as against him only, the dispositive portion of which reads: WHEREFORE, premises considered, this Court GRANTS the motion of plaintiff Iglesia ni Cristo for the issuance of a Writ of Execution as against Dioscoro "Ely" Yoro, Jr. only.18 The petitioners appeal to the Court of Appeals, on the other hand, was given due course.19 On 25 September 2003, the Court of Appeals rendered its Decision denying the appeal. It affirmed the trial court but with modifications. The decretal portion of the decision states: WHEREFORE, the appeal is hereby DENIED. The assailed decision in Civil Case No. A-1646 is hereby AFFIRMED with MODIFICATIONS as follows: (a) The award of moral damages in the amount of P500,000.00 is hereby deleted. (b) The award of exemplary damages is hereby reduced to P50,000.00. (c) The award of attorneys fees and litigation expenses is hereby reduced to P30,000.00.20

Undeterred, petitioner instituted the instant case before this Court. On 15 December 2004, the instant petition was given due course.21 ASSIGNMENT OF ERRORS Petitioner assigns as errors the following: I THE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE REGIONAL TRIAL COURT (BRANCH 31, AGOO, LA UNION) PARTICULARLY IN SAYING THAT THE BASIS OF THE SOLIDARY OBLIGATION OF PETITIONER AND YORO VIS--VIS PLAINTIFF IS BASED NOT ON THE MOA BUT ON TORT II THE COURT OF APPEALS ERRED IN NOT GIVING EFFECT TO THE MOA WHICH SHOULD EXONERATE THE PETITIONER FROM ALL LIABILITIES TO THE PRIVATE RESPONDENT III THE COURT OF APPEALS ERRED IN NOT APPRECIATING THE THIRD-PARTY COMPLAINT AS CROSS-CLAIM OF THE PETITIONER AGAINST YORO.22 ISSUE Drawn from the above assignment of errors, the solitary issue that needs to be resolved is: WHETHER OR NOT THE MEMORANDUM OF AGREEMENT ENTERED INTO BY THE PETITIONER AND YORO HAS THE EFFECT OF MAKING THE LATTER SOLELY RESPONSIBLE FOR DAMAGES TO THE RESPONDENT. THE RULINGS OF THE COURT Petitioner avers that no liability should attach to him by laying the blame solely on Yoro. He argues that the MOA executed between him and Yoro is the law between them and must be given weight by the courts. Since nothing in the MOA goes against the law, morals, good customs and public policy, it must govern to absolve him from any liability.23 Petitioner relies heavily in Paragraph 4 of the MOA, which is again reproduced hereunder: 4. Any damage within or outside the property of the FIRST PARTY incurred during the digging shall be borne by the SECOND PARTY. In answer to this, the respondent asserts that the MOA should not absolve petitioner from any liability. This written contract, according to the respondent, clearly shows that the intention of the parties therein was to search for hidden treasure. The alleged digging for a septic tank was just a cover-up of their real intention.24 The aim of the petitioner and Yoro to intrude and surreptitiously hunt for hidden treasure in the respondents premises should make both parties liable.25 At this juncture, it is vital to underscore the findings of the trial court and the Court of Appeals as to what was the real intention of the petitioner and Yoro in undertaking the excavations. The findings of the trial court and the Court of Appeals on this point

are in complete unison. Petitioner and Yoro were in quest for hidden treasure26and, undoubtedly, they were partners in this endeavor. The Court of Appeals, in its Decision, held in part: The basis of their solidarity is not the Memorandum of Agreement but the fact that they have become joint tortfeasors. There is solidary liability only when the obligation expressly so states, or when the law or the nature of the obligation requires solidarity.27 We find no compelling reason to disturb this particular conclusion reached by the Court of Appeals. The issue, therefore, must be ruled in the negative. Article 2176 of the New Civil Code provides: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. Based on this provision of law, the requisites of quasi-delict are the following: (a) there must be an act or omission; (b) such act or omission causes damage to another; (c) such act or commission is caused by fault or negligence; and (d) there is no pre-existing contractual relation between the parties. All the requisites are attendant in the instant case. The tortious act was the excavation which caused damage to the respondent because it was done surreptitiously within its premises and it may have affected the foundation of the chapel. The excavation on respondents premises was caused by fault. Finally, there was no pre-existing contractual relation between the petitioner and Yoro on the one hand, and the respondent on the other. For the damage caused to respondent, petitioner and Yoro are jointly liable as they are joint tortfeasors. Verily, the responsibility of two or more persons who are liable for a quasidelict is solidary.28 The heavy reliance of petitioner in paragraph 4 of the MOA cited earlier cannot steer him clear of any liability. As a general rule, joint tortfeasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit.29

Indubitably, petitioner and Yoro cooperated in committing the tort. They even had provisions in their MOA as to how they would divide the treasure if any is found within or outside petitioners property line. Thus, the MOA, instead of exculpating petitioner from liability, is the very noose that insures that he be so declared as liable. Besides, petitioner cannot claim that he did not know that the excavation traversed the respondents property. In fact, he had two (2) of his employees actually observe the diggings, his security guard and his engineer Teofilo Oller.30 Coming now to the matter on damages, the respondent questions the drastic reduction of the exemplary damages awarded to it. It may be recalled that the trial court awarded exemplary damages in the amount of P10,000,000.00 but same was reduced by the Court of Appeals to P50,000.00. Exemplary or corrective damages are imposed by way of example or correction for the public good.31 In quasi-delicts, exemplary damages may be granted if the defendant acted with gross negligence.32 By gross negligence is meant such entire want of care as to raise a presumption that the person in fault is conscious of the probable consequences of carelessness, and is indifferent, or worse, to the danger of injury to person or property of others.33 Surreptitiously digging under the respondents chapel which may weaken the foundation thereof, thereby endangering the lives and limbs of the people in worship, unquestionably amounts to gross negligence. Not to mention the damage that may be caused to the structure itself. The respondent may indeed be awarded exemplary damages. For such tortious act done with gross negligence, the Court feels that the amount awarded by the Court of Appeals is inadequate. The exemplary damages must correspondingly be increased to P100,000.00. The modification made by this Court to the judgment of the Court of Appeals must operate as against Yoro, for as fittingly held by the court a quo: While it is settled that a party who did not appeal from the decision cannot seek any relief other than what is provided in the judgment appealed from, nevertheless, when the rights and liability of the defendants are so interwoven and dependent as to be inseparable, in which case, the modification of the appealed judgment in favor of appellant operates as a modification to Gen. Yoro who did not appeal. In this case, the liabilities of Gen. Yoro and appellant being solidary, the above exception applies.34 WHEREFORE, the Decision of the Court of Appeals dated 25 September 2003 is AFFIRMED with MODIFICATION as to the

award of exemplary damages, which is hereby increased to P100,000.00. Costs against petitioner. SO ORDERED. G.R. No. L-4977 March 22, 1910 DAVID TAYLOR, plaintiff-appellee, vs.THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant. CARSON, J.: An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative. The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island. The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics. On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy. After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of

experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in to care for his wounds. The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor how long they had been there when the boys found them. It appears, however, that some months before the accident, during the construction of the defendant's plant, detonating caps of the same size and kind as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to have been lying for a considerable time, and from the place where they were found would seem to have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap. No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is evidence that any effort ever was made to forbid these children from visiting the defendant company's premises, although it must be assumed that the company or its employees were aware of the fact that they not infrequently did so. Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen. The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only questions of fact

which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they were found. The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard. It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company's track; that some of these caps were used in blasting a well on the company's premises a few months before the accident; that not far from the place where the caps were found the company has a storehouse for the materials, supplies and so forth, used by it in its operations as a street railway and a purveyor of electric light; and that the place, in the neighborhood of which the caps were found, was being used by the company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had the caps under its possession and control. We think also that the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they were found, with the expectation that they would be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the company or some of its employees either willfully or through an oversight left them exposed at a point on its premises which the general public, including children at play, where not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam about in pastime or in play. Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimidating or rather assuming that the blasting work on the company's well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the McKinley

extension was done by independent contractors. Only one witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the defendant company's directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious or negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its employees. Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code. ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in which any kind of fault or negligence occurs. ART. 1902 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. ART. 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 damages caused by their employees in the service of the branches in which the latter may be employed or on account 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 damage. ART. 1908 The owners shall also be liable for the damage caused 1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of

explosive substances which may not have been placed in a safe and proper place. Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not established the liability of the defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the judgment of the court below. We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence: (1) Damages to the plaintiff. (2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty. (3) The connection of cause and effect between the negligence and the damage. These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts developed in the case under consideration. It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents. But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant company's premises, and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise to the accident, which should be deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place where they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon. In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad company's premises, at a place where the railroad company knew, or had good reason to suppose, children would be likely to come, and there found explosive signal torpedoes left unexposed by the railroad company's employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable, left in such condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine. In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable. As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad company was liable for in injury received by an infant while upon its premises, from idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to the negligence of the company), the principles on which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the case." The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation or license to cross the premises of another can not be predicated on the mere fact that no steps have

been taken to interfere with such practice; (4) that there is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another's premises. Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States. On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and American, formally declared that it adhered "to the principles announced in the case of Railroad Co. vs. Stout." In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the defendant's premises, without defendant's express permission or invitation, and while there, was by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to, the defendant was under no obligation to make provision. We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the defendant company owed him no duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's premises. We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it

permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provisions. In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him there by manual force?" What difference, in reason we may observe in this case, is there between an express license to the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and be killed, and which would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life." Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken. And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises of another, says: In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.) The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his

express invitation or permission. To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter. This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do what will with his own property or that children should be kept under the care of their parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parent could in any event be imputed to the child so as to deprive it a right to recover in such cases a point which we neither discuss nor decide. But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred. Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is because we can not agree with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity

and capacity only, and this is to be determined in each case by the circumstances of the case." As we think we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express permission or invitation' but it is wholly different question whether such youth can be said to have been free from fault when he willfully and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by "the particular circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands. In the case at bar, plaintiff at the time of the accident was a wellgrown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became frightened and ran away. True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily depends of his own acts and their consequences; and at the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1). We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligence 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. The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17 rule 203.) The Patidas contain the following provisions: The just thing is that a man should suffer the damage which comes to him through his own fault, and that he

can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.) And they even said that when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit. 7, Partida 2.) According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.) And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him. The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in point. In that case the court said: According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and the injury there exists the relation of cause and effect; but if the injury produced should not be the result of acts or omissions of a third party, the latter has no obligation to repair the same, although such acts or omission were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of the injured party himself. The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient without proof that it, and no other cause, gave rise to the damage." See also judgment of October 21, 1903. To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and the damage there exists the relation of cause and effect; but if the damage caused does not arise from the acts or omissions of a third person, there is no obligation to make good upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is shown that the immediate

cause of the damage has been the recklessness of the injured party himself. And again In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is duty of him who shall claim damages to establish their existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the principle, the first setting forth in detail the necessary points of the proof, which are two: An act or omission on the part of the person who is to be charged with the liability, and the production of the damage by said act or omission. This includes, by inference, the establishment of a relation of cause or effect between the act or omission and the damage; the latter must be the direct result of one of the first two. As the decision of March 22, 1881, said, it is necessary that the damages result immediately and directly from an act performed culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision of October 29, 1887.) Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.) (Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.) Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we held that while "There are many cases (personal injury cases) was exonerated," on the ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the negligence 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;" and in such cases we declared that law in this jurisdiction to require the application of "the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the injured party were the immediate causes of the accident. The doctrine as laid down in that case is as follows: 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 made 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 to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to replace it. This produces the event giving occasion for damagesthat is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through his act or omission of duty, that 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. We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can not recover." We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the detonating caps, the property of defendant, and carrying the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of this case, we neither discuss nor decide. Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and ten days thereafter let the record be returned to the court wherein it originated, where the judgment will be entered in favor of the defendant for the costs in first instance and the complaint dismissed without day. So ordered. Arellano, C.J., Torres and Moreland, JJ., concur. Johnson, J., concurs in the result.

G.R. No. L-12986 March 31, 1966 THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG, petitionersappellants, vs.CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees. MAKALINTAL., J.: This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against respondents. The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire. The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had exercised due care in the premises and with respect to the supervision of their employees. The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first two reports are as follows: 1. Police Department report: Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the burning match stick near the main valve of the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline hose connecting the truck with the underground tank prevented a terrific explosion. However, the flames scattered due to the hose from which the gasoline was spouting. It burned the truck and the following accessorias and residences. 2. The Fire Department report:

In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and cigarette stand, the complainants furnished this Office a copy of a photograph taken during the fire and which is submitted herewith. it appears in this picture that there are in the premises a coca-cola cooler and a rack which according to information gathered in the neighborhood contained cigarettes and matches, installed between the gasoline pumps and the underground tanks. The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the gasoline station and what the chief of the fire department had told him on the same subject. The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were admitted by the trial court without objection on the part of respondents; secondly, that with respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo," the latter was presented as witness but respondents waived their right to cross-examine him although they had the opportunity to do so; and thirdly, that in any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule 130. The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp. 167-170) shows that the reports in question, when offered as evidence, were objected to by counsel for each of respondents on the ground that they were hearsay and that they were "irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were admitted without objection; the admission of the others, including the disputed ones, carried no such explanation. On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was one of those who investigated "the location of the fire and, if possible, gather witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore, on which he need be cross-examined; and the contents of the report, as to which he did not testify, did not thereby become competent evidence. And even if he had testified, his testimony would still have been objectionable as far as information gathered by him from third persons was concerned. Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the

performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated." There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398). Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the reports as to the cause and circumstances of the fire were not within the personal knowledge of the officers who conducted the investigation. Was knowledge of such facts, however, acquired by them through official information? As to some facts the sources thereof are not even identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for record.1 The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired by the reporting officers through official information, not having been given by the informants pursuant to any duty to do so. The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to (its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules do not prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question deserves more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court. The facts of that case are stated in the decision as follows: In the afternoon of May 5, 1946, while the plaintiffappellee and other companions were loading grass

between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without any wind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by the wire and was knocked unconscious to the ground. The electric charge coursed through his body and caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and causing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947, over one year after the mishap. The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of negligence, but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said: The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the defendant, it is also a recognized principal that "where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evidence, in the absence of the explanation, that the injury arose from defendant's want of care." And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows to injure passersby, unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule). Consequently, in the absence of contributory negligence (which is admittedly not present), the fact that the wire snapped suffices to raise a reasonable presumption of negligence in its

installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent with negligence, it is for the defendant to prove." It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises almost invariably from some act of man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So. 447: Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease, while gasoline was being transferred from the tank wagon, also operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire started with resulting damages to the building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of Review which was granted, and the case is now before us for decision.1wph1.t In resolving the issue of negligence, the Supreme Court of Louisiana held: Plaintiff's petition contains two distinct charges of negligence one relating to the cause of the fire and the other relating to the spreading of the gasoline about the filling station. Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed on the stand by the defendant. Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record that the filling station and the tank truck were under the control of the defendant and operated by its agents or employees. We further find from the uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank attached to the

filling station while it was being filled from the tank truck and while both the tank and the truck were in charge of and being operated by the agents or employees of the defendant, extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff. Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them. Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193). This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599. The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its appliances, equipment and employees, was under the control of appellees. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were appellees and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the following appears: Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a very busy business district near the Obrero Market, a railroad crossing and very thickly populated neighborhood where a great number of people mill around t

until gasoline tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a secondary hazard to its operation which in turn endangers the entire neighborhood to conflagration. Furthermore, aside from precautions already taken by its operator the concrete walls south and west adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case of fire. Records show that there have been two cases of fire which caused not only material damages but desperation and also panic in the neighborhood. Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible outbreak of fire at this already small but crowded gasoline station. The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his own personal observation of the facts reported, may properly be considered as an exception to the hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the operation of the gasoline station in question, strengthen the presumption of negligence under the doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than those which would satisfy the standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than the statement of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was transferring the contents thereof into the underground storage when the fire broke out. He said: "Before loading the underground tank there were no people, but while the loading was going on, there were people who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole leading to the underground tank." He added that when the tank was almost filled he went to the tank truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout "fire." Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses. There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the fire was

caused through the acts of a stranger who, without authority, or permission of answering defendant, passed through the gasoline station and negligently threw a lighted match in the premises." No evidence on this point was adduced, but assuming the allegation to be true certainly any unfavorable inference from the admission may be taken against Boquiren it does not extenuate his negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of the present case, states the rule which we find acceptable here. "It is the rule that those who distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and commensurate with a danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm, does not protect the actor from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.) The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence may be passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control over Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license to store gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa). In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to remove gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren later on amended his answer, and that among the changes was one to the effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second amended complaint the ground alleged was that it stated no cause of action since under the allegations thereof he was merely acting as agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be an admission of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business conducted at the service station in question was owned and operated by Boquiren. But Caltex did not present any contract with Boquiren that would reveal the nature of their relationship at the time of the fire. There must have been one in existence at that time. Instead, what was presented was a license agreement manifestly tailored for purposes of this case, since it was entered into shortly before the expiration of the one-year period it was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant, and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person or property while in the property herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)." But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time cancel and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence, in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren. The control was such that the latter was virtually an employee of the former. Taking into consideration the fact that the operator owed his position to the company and the latter could remove him or terminate his services at will; that the service station belonged to the company and bore its tradename and the operator sold only the products of the company; that the equipment used by the operator belonged to the company and were just loaned to the operator and the company took charge of their repair and maintenance; that an employee of the company supervised the operator and conducted periodic inspection of the company's gasoline and service station; that the price of the products sold by the operator was fixed by the company and not by the operator; and that the receipts signed by the operator indicated that he was a mere agent, the finding of the Court of Appeals that the operator was an agent of the company and not an independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given it by the contracting parties, should thereby a controversy as to what they really had intended to enter into, but the way the contracting parties do or perform their respective obligations stipulated or agreed upon may be shown and inquired into, and should such performance conflict with the name or title given the contract by the parties, the former must prevail over the latter. (Shell Company of the Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757). The written contract was apparently drawn for the purpose of creating the apparent relationship of employer and independent contractor, and of avoiding liability for the negligence of the employees about the station; but the company was not satisfied to allow such relationship to exist. The evidence shows that it immediately assumed control, and proceeded to direct the method by which the work contracted for should be performed. By reserving the right to terminate the contract at will, it retained the means of compelling submission to its orders. Having elected to assume control and to direct the means and methods by which the work has to be performed, it must be held liable for the negligence of those performing service under its direction. We think the evidence was sufficient to sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183). Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to prove the same. As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation of the insurer to the rights of the insured, was not yet in effect when the loss took place. However, regardless of the silence of the law on this point at that time, the amount that should be recovered be measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since it is of common knowledge that the assessment for taxation purposes is not an accurate gauge of fair market value, and in this case should not prevail over positive evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint, and costs. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur. Dizon, J., took no part. G.R. No. 194320 February 1, 2012 MALAYAN INSURANCE CO., INC., Petitioner, vs.RODELIO ALBERTO and ENRICO ALBERTO REYES, Respondents. DECISION VELASCO, JR., J.: The Case Before Us is a Petition for Review on Certiorari under Rule 45, seeking to reverse and set aside the July 28, 2010 Decision1 of the Court of Appeals (CA) and its October 29, 2010 Resolution2 denying the motion for reconsideration filed by petitioner Malayan Insurance Co., Inc. (Malayan Insurance). The July 28, 2010 CA Decision reversed and set aside the Decision3 dated February 2, 2009 of the Regional Trial Court, Branch 51 in Manila. The Facts At around 5 oclock in the morning of December 17, 1995, an accident occurred at the corner of EDSA and Ayala Avenue, Makati City, involving four (4) vehicles, to wit: (1) a Nissan Bus operated by Aladdin Transit with plate number NYS 381; (2) an Isuzu Tanker with plate number PLR 684; (3) a Fuzo Cargo Truck with plate number PDL 297; and (4) a Mitsubishi Galant with plate number TLM 732.4 Based on the Police Report issued by the on-the-spot investigator, Senior Police Officer 1 Alfredo M. Dungga (SPO1 Dungga), the Isuzu Tanker was in front of the Mitsubishi Galant with the Nissan Bus on their right side shortly before the vehicular incident. All three (3) vehicles were at a halt along EDSA facing the south direction when the Fuzo Cargo Truck simultaneously bumped the rear portion of the Mitsubishi Galant and the rear left portion of the Nissan Bus. Due to the strong impact, these two vehicles were shoved forward and the front left portion of the Mitsubishi Galant rammed into the rear right portion of the Isuzu Tanker.5 Previously, particularly on December 15, 1994, Malayan Insurance issued Car Insurance Policy No. PV-025-00220 in favor of First Malayan Leasing and Finance Corporation (the assured), insuring the aforementioned Mitsubishi Galant against third party liability, own damage and theft, among others.

Having insured the vehicle against such risks, Malayan Insurance claimed in its Complaint dated October 18, 1999 that it paid the damages sustained by the assured amounting to PhP 700,000.6 Maintaining that it has been subrogated to the rights and interests of the assured by operation of law upon its payment to the latter, Malayan Insurance sent several demand letters to respondents Rodelio Alberto (Alberto) and Enrico Alberto Reyes (Reyes), the registered owner and the driver, respectively, of the Fuzo Cargo Truck, requiring them to pay the amount it had paid to the assured. When respondents refused to settle their liability, Malayan Insurance was constrained to file a complaint for damages for gross negligence against respondents.7 In their Answer, respondents asserted that they cannot be held liable for the vehicular accident, since its proximate cause was the reckless driving of the Nissan Bus driver. They alleged that the speeding bus, coming from the service road of EDSA, maneuvered its way towards the middle lane without due regard to Reyes right of way. When the Nissan Bus abruptly stopped, Reyes stepped hard on the brakes but the braking action could not cope with the inertia and failed to gain sufficient traction. As a consequence, the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in front of it. The Nissan Bus, on the other hand, sideswiped the Fuzo Cargo Truck, causing damage to the latter in the amount of PhP 20,000. Respondents also controverted the results of the Police Report, asserting that it was based solely on the biased narration of the Nissan Bus driver.8 After the termination of the pre-trial proceedings, trial ensued. Malayan Insurance presented the testimony of its lone witness, a motor car claim adjuster, who attested that he processed the insurance claim of the assured and verified the documents submitted to him. Respondents, on the other hand, failed to present any evidence. In its Decision dated February 2, 2009, the trial court, in Civil Case No. 99-95885, ruled in favor of Malayan Insurance and declared respondents liable for damages. The dispositive portion reads: WHEREFORE, judgment is hereby rendered in favor of the plaintiff against defendants jointly and severally to pay plaintiff the following: 1. The amount of P700,000.00 with legal interest from the time of the filing of the complaint; 2. Attorneys fees of P10,000.00 and; 3. Cost of suit. SO ORDERED.9 Dissatisfied, respondents filed an appeal with the CA, docketed as CA-G.R. CV No. 93112. In its Decision dated July 28, 2010, the

CA reversed and set aside the Decision of the trial court and ruled in favor of respondents, disposing: WHEREFORE, the foregoing considered, the instant appeal is hereby GRANTED and the assailed Decision dated 2 February 2009 REVERSED and SET ASIDE. The Complaint dated 18 October 1999 is hereby DISMISSED for lack of merit. No costs. SO ORDERED.10 The CA held that the evidence on record has failed to establish not only negligence on the part of respondents, but also compliance with the other requisites and the consequent right of Malayan Insurance to subrogation.11 It noted that the police report, which has been made part of the records of the trial court, was not properly identified by the police officer who conducted the on-the-spot investigation of the subject collision. It, thus, held that an appellate court, as a reviewing body, cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document, much less accord it evidentiary value.12 Subsequently, Malayan Insurance filed its Motion for Reconsideration, arguing that a police report is a prima facie evidence of the facts stated in it. And inasmuch as they never questioned the presentation of the report in evidence, respondents are deemed to have waived their right to question its authenticity and due execution.13 In its Resolution dated October 29, 2010, the CA denied the motion for reconsideration. Hence, Malayan Insurance filed the instant petition. The Issues In its Memorandum14 dated June 27, 2011, Malayan Insurance raises the following issues for Our consideration: I WHETHER THE CA ERRED IN REFUSING ADMISSIBILITY OF THE POLICE REPORT SINCE THE POLICE INVESTIGATOR WHO PREPARED THE SAME DID NOT ACTUALLY TESTIFY IN COURT THEREON. II WHETHER THE SUBROGATION OF MALAYAN INSURANCE IS IMPAIRED AND/OR DEFICIENT. On the other hand, respondents submit the following issues in its Memorandum15 dated July 7, 2011: I WHETHER THE CA IS CORRECT IN DISMISSING THE COMPLAINT FOR FAILURE OF MALAYAN INSURANCE TO OVERCOME THE BURDEN OF PROOF REQUIRED TO ESTABLISH THE NEGLIGENCE OF RESPONDENTS. II

WHETHER THE PIECES OF EVIDENCE PRESENTED BY MALAYAN INSURANCE ARE SUFFICIENT TO CLAIM FOR THE AMOUNT OF DAMAGES. III WHETHER THE SUBROGATION OF MALAYAN INSURANCE HAS PASSED COMPLIANCE AND REQUISITES AS PROVIDED UNDER PERTINENT LAWS. Essentially, the issues boil down to the following: (1) the admissibility of the police report; (2) the sufficiency of the evidence to support a claim for gross negligence; and (3) the validity of subrogation in the instant case. Our Ruling The petition has merit. Admissibility of the Police Report Malayan Insurance contends that, even without the presentation of the police investigator who prepared the police report, said report is still admissible in evidence, especially since respondents failed to make a timely objection to its presentation in evidence.16 Respondents counter that since the police report was never confirmed by the investigating police officer, it cannot be considered as part of the evidence on record.17 Indeed, under the rules of evidence, a witness can testify only to those facts which the witness knows of his or her personal knowledge, that is, which are derived from the witness own perception.18 Concomitantly, a witness may not testify on matters which he or she merely learned from others either because said witness was told or read or heard those matters.19 Such testimony is considered hearsay and may not be received as proof of the truth of what the witness has learned. This is known as the hearsay rule.20 As discussed in D.M. Consunji, Inc. v. CA,21 "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." There are several exceptions to the hearsay rule under the Rules of Court, among which are entries in official records.22 Section 44, Rule 130 provides: Entries in official records made in the performance of his duty by a public officer of the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the facts therein stated. In Alvarez v. PICOP Resources,23 this Court reiterated the requisites for the admissibility in evidence, as an exception to the hearsay rule of entries in official records, thus: (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 or her 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 or her stated, which must have been acquired by the public officer or other person personally or through official information. Notably, the presentation of the police report itself is admissible as an exception to the hearsay rule even if the police investigator who prepared it was not presented in court, as long as the above requisites could be adequately proved.24 Here, there is no dispute that SPO1 Dungga, the on-the-spot investigator, prepared the report, and he did so in the performance of his duty. However, what is not clear is whether SPO1 Dungga had sufficient personal knowledge of the facts contained in his report. Thus, the third requisite is lacking. Respondents failed to make a timely objection to the police reports presentation in evidence; thus, they are deemed to have waived their right to do so.25 As a result, the police report is still admissible in evidence. Sufficiency of Evidence Malayan Insurance contends that since Reyes, the driver of the Fuzo Cargo truck, bumped the rear of the Mitsubishi Galant, he is presumed to be negligent unless proved otherwise. It further contends that respondents failed to present any evidence to overturn the presumption of negligence.26 Contrarily, respondents claim that since Malayan Insurance did not present any witness who shall affirm any negligent act of Reyes in driving the Fuzo Cargo truck before and after the incident, there is no evidence which would show negligence on the part of respondents.27 We agree with Malayan Insurance. Even if We consider the inadmissibility of the police report in evidence, still, respondents cannot evade liability by virtue of the res ipsa loquitur doctrine. The D.M. Consunji, Inc. case is quite elucidating: Petitioners 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. 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 defendants 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 defendants want of care. One of the theoretical bases for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. 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 defendants negligence is beyond plaintiffs power. Accordingly, some courts 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. The CA held that all the requisites of res ipsa loquitur are present in the case at bar:

There is no dispute that appellees husband fell down from the 14th floor of a building to the basement while he was working with appellants 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 appellees 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 appellants negligence arises. x x x. 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 respondents husband." Petitioner apparently misapprehends the procedural effect of the doctrine. As stated earlier, the defendants negligence is presumed or inferred 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. The presumption or inference may be rebutted or overcome by other evidence and, under appropriate circumstances a disputable presumption, such as that of due care or innocence, may outweigh the inference. 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.28 In the case at bar, aside from the statement in the police report, none of the parties disputes the fact that the Fuzo Cargo Truck hit the rear end of the Mitsubishi Galant, which, in turn, hit the rear end of the vehicle in front of it. Respondents, however, point

to the reckless driving of the Nissan Bus driver as the proximate cause of the collision, which allegation is totally unsupported by any evidence on record. And assuming that this allegation is, indeed, true, it is astonishing that respondents never even bothered to file a cross-claim against the owner or driver of the Nissan Bus. What is at once evident from the instant case, however, is the presence of all the requisites for the application of the rule of res ipsa loquitur. To reiterate, res ipsa loquitur is a rule of necessity which applies where evidence is absent or not readily available. As explained in D.M. Consunji, Inc., it is partly based 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. As mentioned above, the requisites for the application of the res ipsa loquitur rule are the following: (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.29 In the instant case, the Fuzo Cargo Truck would not have had hit the rear end of the Mitsubishi Galant unless someone is negligent. Also, the Fuzo Cargo Truck was under the exclusive control of its driver, Reyes. Even if respondents avert liability by putting the blame on the Nissan Bus driver, still, this allegation was self-serving and totally unfounded. Finally, no contributory negligence was attributed to the driver of the Mitsubishi Galant. Consequently, all the requisites for the application of the doctrine of res ipsa loquitur are present, thereby creating a reasonable presumption of negligence on the part of respondents. It is worth mentioning that just like any other disputable presumptions or inferences, the presumption of negligence may be rebutted or overcome by other evidence to the contrary. It is unfortunate, however, that respondents failed to present any evidence before the trial court. Thus, the presumption of negligence remains. Consequently, the CA erred in dismissing the complaint for Malayan Insurances adverted failure to prove negligence on the part of respondents. Validity of Subrogation Malayan Insurance contends that there was a valid subrogation in the instant case, as evidenced by the claim check voucher30 and the Release of Claim and Subrogation Receipt31 presented by it before the trial court. Respondents, however, claim that the documents presented by Malayan

Insurance do not indicate certain important details that would show proper subrogation. As noted by Malayan Insurance, respondents had all the opportunity, but failed to object to the presentation of its evidence. Thus, and as We have mentioned earlier, respondents are deemed to have waived their right to make an objection. As this Court held in Asian Construction and Development Corporation v. COMFAC Corporation: The rule is that failure to object to the offered evidence renders it admissible, and the court cannot, on its own, disregard such evidence. We note that ASIAKONSTRUCTs counsel of record before the trial court, Atty. Bernard Dy, who actively participated in the initial stages of the case stopped attending the hearings when COMFAC was about to end its presentation. Thus, ASIAKONSTRUCT could not object to COMFACs offer of evidence nor present evidence in its defense; ASIAKONSTRUCT was deemed by the trial court to have waived its chance to do so. Note also that when a party desires the court to reject the evidence offered, it must so state in the form of a timely objection and it cannot raise the objection to the evidence for the first time on appeal. Because of a partys failure to timely object, the evidence becomes part of the evidence in the case. Thereafter, all the parties are considered bound by any outcome arising from the offer of evidence properly presented.32 (Emphasis supplied.) Bearing in mind that the claim check voucher and the Release of Claim and Subrogation Receipt presented by Malayan Insurance are already part of the evidence on record, and since it is not disputed that the insurance company, indeed, paid PhP 700,000 to the assured, then there is a valid subrogation in the case at bar. As explained in Keppel Cebu Shipyard, Inc. v. Pioneer Insurance and Surety Corporation: Subrogation is the substitution of one person by another with reference to a lawful claim or right, so that he who is substituted succeeds to the rights of the other in relation to a debt or claim, including its remedies or securities. The principle covers a situation wherein an insurer has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy. It contemplates full substitution such that it places the party subrogated in the shoes of the creditor, and he may use all means that the creditor could employ to enforce payment.1wphi1 We have held that payment by the insurer to the insured operates as an equitable assignment to the insurer of all the remedies that the insured may have against the third party whose negligence or wrongful act caused the loss. The right of subrogation is not dependent upon, nor does it grow out of, any

privity of contract. It accrues simply upon payment by the insurance company of the insurance claim. The doctrine of subrogation has its roots in equity. It is designed to promote and to accomplish justice; and is the mode that equity adopts to compel the ultimate payment of a debt by one who, in justice, equity, and good conscience, ought to pay.33 Considering the above ruling, it is only but proper that Malayan Insurance be subrogated to the rights of the assured. WHEREFORE, the petition is hereby GRANTED. The CAs July 28, 2010 Decision and October 29, 2010 Resolution in CA-G.R. CV No. 93112 are hereby REVERSED and SET ASIDE. The Decision dated February 2, 2009 issued by the trial court in Civil Case No. 99-95885 is hereby REINSTATED. No pronouncement as to cost. SO ORDERED. PRESBITERO J. VELASCO, JR. Associate Justice G.R. No. 118231 July 5, 1996 DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs.COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G. VILLEGAS, respondents. DAVIDE, JR., J.:p Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already provided: "If a physician make a deep incision upon a man with his bronze lancet and cause the man's death, or operate on the eye socket of a man with his bronze lancet and destroy the man's eyes, they shall cut off his hand."2 Subsequently, Hippocrates 3 wrote what was to become part of the healer's oath: "I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot." At present, the primary objective of the medical profession if the preservation of life and maintenance of the health of the people. 4 Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

The petitioners appeal from the decision 5 of the Court of Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492. The facts, as found by the trial court, are as follows: Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital. Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's private patient sometime before September 21, 1988. In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses performed a simple caesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during which period of confinement she was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas checked out of the Hospital. . . and on that same day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as "professional fee". . . . Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines. . . which she had been taking up to December, 1988. In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on October 31, 1988. . . certifying to her physical fitness to return to her work on November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental. The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end despite the medications administered by Dr. Batiquin. When the pains became unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon examination she felt an abdominal mass one finger below the umbilicus which she suspected to be either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The results of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the latter agreed. When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber material on the right side of the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body" looked like a piece of a "rubber glove". . . and which is [sic] also "rubberdrain like". . . . It could have been a torn section of a surgeon's gloves or could have come from other sources. And this foreign body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988. 7 The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented in court, and although Dr. Ma. Salud Kho Testified that she sent it to a pathologist in Cebu City for examination, 8 it was not mentioned in the pathologist's Surgical Pathology Report. 9 Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber are a Medical Certificate, 10 a Progress Record, 11 an Anesthesia Record, 12 a Nurse's Record, 13 and a Physician's Discharge Summary. 14The trial court, however, regarded these documentary evidence as mere hearsay, "there being no showing that the person or persons who prepared them are deceased or unable to testify on the facts therein stated. . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature on some of them to express her agreement thereto. . . ." 15The trial court also refused to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may not have had first-hand knowledge" thereof, 16 as could be gleaned from her statement, thus: A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body that goes with the tissues but unluckily I don't know where the rubber was. 17

The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed but that she threw it away." 18 This statement, the trial court noted, was never denied nor disputed by Dr. Kho, leading it to conclude: There are now two different versions on the whereabouts of that offending "rubber" (1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs to reconcile these two different versions serve only to weaken their claim against Defendant Batiquin. 19 All told, the trial court held in favor of the petitioners herein. The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without admitting the private respondents' documentary evidence, deemed Dr. Kho's positive testimony to definitely establish that a piece of rubber was found near private respondent Villegas's uterus. Thus, the Court of Appeals reversed the decision of the trial court, holding: 4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of evidence. The trial court itself had narrated what happened to appellant Flotilde after the caesarean operation made by appellee doctor. . . . After the second operation, appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused by the infection due to the "rubber" that was left inside her abdomen. Both appellant; testified that after the operation made by appellee doctor, they did not go to any other doctor until they finally decided to see another doctor in January, 1989 when she was not getting any better under the care of appellee Dr. Batiquin. . . . Appellee Dr. Batiquin admitted on the witness stand that she alone decided when to close the operating area; that she examined the portion she operated on before closing the same. . . Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber and removed it before closing the operating area. 20 The appellate court then ruled: Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her life. For the miseries appellants endured for more than three (3) months, due to the negligence of appellee Dr. Batiquin they are entitled to moral damages in the amount of P100,000.00; exemplary damages in the

amount of P20,000.00 and attorney's fees in the amount of P25,000.00. The fact that appellant Flotilde can no longer bear children because her uterus and ovaries were removed by Dr. Kho is not taken into consideration as it is not shown that the removal of said organs were the direct result of the rubber left by appellee Dr. Batiquin near the uterus. What is established is that the rubber left by appellee caused infection, placed the life of appellant Flotilde in jeopardy and caused appellant fear, worry and anxiety. . . . WHEREFORE, the appealed judgment, dismissing the complaint for damages is REVERSED and SET ASIDE. Another judgment is hereby entered ordering defendants-appellees to pay plaintiffs-appellants the amounts of P17,000.00 as and for actual damages; P100,000.00 as and for moral damages; P20,000.00 as and for exemplary damages; and P25,000.00 as and for attorney's fees plus the costs of litigation. SO ORDERED. 21 From the above judgment, the petitioners appealed to this Court claiming that the appellate court: (1) committed grave abuse of discretion by resorting to findings of fact not supported by the evidence on record, and (2) exceeded its discretion, amounting to lack or excess of jurisdiction, when it gave credence to testimonies punctured with contradictions and falsities. The private respondents commented that the petition raised only questions of fact, which were not proper for review by this Court. While the rule is that only questions of law may be raised in a petition for review on certiorari, there are exceptions, among which are when the factual findings of the trial court and the appellate court conflict, when the appealed decision is clearly contradicted by the evidence on record, or when the appellate court misapprehended the facts.22 After deciphering the cryptic petition, we find that the focal point of the instant appeal is the appreciation of Dr. Kho's testimony. The petitioners contend that the Court of Appeals misappreciated the following portion of Dr. Kho's testimony: Q What is the purpose of the examination? A Just in case, I was just thinking at the back of my mind, just in case this would turn out to be a medico-legal case, I have heard somebody that [sic] says [sic] there is [sic] a foreign bodythat goes with the tissues but u

nluckily I don't know where the rubber was. It was not in the Lab, it was not in Cebu. 23 (emphasis supplied) The petitioners prefer the trial court's interpretation of the above testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of Appeals, on the other hand, concluded that the underscored phrase was taken out of context by the trial court. According to the Court of Appeals, the trial court should have likewise considered the other portions of Dr. Kho's testimony, especially the following: Q So you did actually conduct the operation on her? A Yes, I did. Q And what was the result? A Opening up her abdomen, there was whitish-yellow discharge inside the abdomen, there was an ovarian cyst on the left and side and there was also an ovarian cyst on the right which, on opening up or freeing it up from the uterus, turned out to be pus. Both ovaries turned out. . . to have pus. And then, cleaning up the uterus, at the back of the uterus it was very dirty, it was full of pus. And there was a [piece of] rubber, we found a [piece of] rubber on the right side. 24 We agree with the Court of Appeals. The phrase relied upon by the trial court does not negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas's abdomen, and that she sent it to a laboratory and then to Cebu City for examination by a pathologist. 25 Not even the Pathologist's Report, although devoid of any mention of a piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the piece of rubber could not be based on other than first-hand knowledge for, as she asserted before the trial court: Q But you are sure you have seen [the piece of rubber]? A Oh yes. I was not the only one who saw it. 26 The petitioners emphasize that the private respondents never reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter said that there was a piece of rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is admissible 27 but it carries no probative value. 28 Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the

fact that Dr. Kho found a piece of rubber near private respondent Villegas's uterus. And even if we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she threw it away or sent it to Cebu City, we are not justified in distrusting her as to her recovery of a piece of rubber from private respondent Villegas's abdomen. On this score, it is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve his testimony with respect to other facts. And it has been aptly said that even when a witness is found to have deliberately falsified in some material particulars, it is not required that the whole of his uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited. 29 It is here worth noting that the trial court paid heed to the following portions of Dr. Batiquin's testimony: that no rubber drain was used in the operation, 30 and that there was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her gloves. 31 Moreover, the trial court pointed out that the absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on private respondent Villegas. 32 But the trial court failed to recognize that the assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-settled is the rule that positive testimony is stronger than negative testimony. 33 Of course, as the petitioners advocate, such positive testimony must come from a credible source, which leads us to the second assigned error. While the petitioners claim that contradictions and falsities punctured Dr. Kho's testimony, a regarding of the said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34 The trial court's following declaration shows that while it was critical of the lack of care with which Dr. Kho handled the piece of rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting our appraisal of Dr. Kho's trustworthiness: This is not to say that she was less than honest when she testified about her findings, but it can also be said that she did not take the most appropriate precaution to preserve that "piece of rubber" as an eloquent evidence of what she would reveal should there be a "legal problem" which she claim[s] to have anticipated. 35 Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a piece of rubber was indeed found in private respondent Villega's abdomen] prevails over the negative testimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature and operation of this doctrine: This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen in those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." Or as Black's Law Dictionary puts it: Res ipsa loquitur. The thing speaks for itself. Rebuctable presumption or inference that defendant was negligent, which arises upon proof that [the] instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the] mere fact that [the] accident happened provided [the] character of [the] accident and circumstances attending it lead reasonably to belief that in [the] absence of negligence it would not have occurred and that thing which caused injury is shown to have been under [the] management and control of [the] alleged wrongdoer. . . . Under [this] doctrine . . . the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used. xxx xxx xxx The doctrine of [r]es ipsa loquitur as a rule of evidence 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. The doctrine is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of

culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. 36 In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the caesarean section were under the exclusive control of Dr. Batiquin. In this light, the private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas's body, which, needless to say, does not occur unless through the intersection of negligence. Second, since aside from the caesarean section, private respondent Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a byproduct of the caesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas's abdomen and for all the adverse effects thereof. As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, 37 and the State's compelling interest to enact measures to protect the public from "the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma." 38 Indeed, a physician is bound to serve the interest of his patients "with the greatest of solicitude, giving them always his best talent and skill." 39 Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession's rigid ethical code and in contravention of the legal standards set forth for professionals, in general, 40 and members of the medical profession, 41 in particular. WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto. Costs against the petitioners. SO ORDERED. Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur. G.R. No. L-24084 November 3, 1925 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee, vs.PEDRO RAMIREZ, defendant-appellant. VILLAMOR, J.:

The appellant was sentenced by the Court of First Instance of Ilocos Norte, for the crime of homicide, to the penalty of fourteen years, eight months and one day of reclusion temporal, to indemnify the mother of the deceased in the sum of P500 and to pay the costs. On the night of February 18, 1923, one Bartolome Quiaoit invited Pedro Ramirez, the accused herein, Victoriano Ranga, the deceased, and Agustin Menor to hunt in the mount Balitok of the municipality of Nueva Era, Province of Ilocos Norte. The three last named proceeded to hunt, leaving Bartolome Quiaoit in a hut approximately 1 kilometer from the place where the act complained of took place. Upon the hunters having arrived at a place in mount Balitok, Pedro Ramirez, who was carrying the shotgun of Bartolome Quiaoit with a lantern, happened to hunt a deer, and then he told his companions to stay there and watch over the prey while he entered the forest to get it. Thus Victoriano Ranga and Agusto Menor were waiting when suddenly the report of the shotgun was heard hitting Victoriano Ranga in the eye and the right temple, who thereafter died on that night as a result of the wounds. It does not appear that the matter was judicially investigated until the month of October, 1924, when the complaint was filed which initiated this proceedings. The only witness who could testify upon the act complained of is naturally Agustin Menor who was near the deceased when the latter was shot. According to Agustin Menor, the defendant, after having gotten the first prey, told his companions to stay there, while he (Pedro Ramirez) was leaving them to go on hunting , and "when he was far away, he fired the shotgun," hitting the deceased Victoriano Ranga. It must be noted that the witness Agustin Menor changed his first testimony that "when he was far away, he fired the shotgun," by saying afterwards, "When Pedro Ramirez was a little away, he turned toward us and fired." And to make it more specific, the defense moved that the translation of the testimony of the witness be corrected and the interpreter of the court caused it to be stated in the record that the true testimony of the witness was as follows: "Pedro Ramirez caused me and Victoriano Ranga to stay in the mount , telling us: 'Brothers, you stay here and I am going up to hunt with the lamp' and then after he has gone ways, he (Pedro Ramirez) turned toward us and fired." On the other hand the defendant, testifying as witness in his behalf, admits being the author of the shot which caused the death of Victoriano Ranga; that on that night after getting the first prey, he told his companions to stay there, watching over the prey, while he was going away looking for another; and so he did, because otherwise it would have been hard for them to find the prey, if no one would have been left there; that being far away from his companions, he seemed to have seen with his lantern something like the eyes of a deer about fifty meters from him and then he shot it; but much to his surprise, on approaching what he thought was a deer, it proved to be his companion Victoriano

Ranga. The same witness says that he did not expect to find his companions in that spot, for he had warned them not to leave, but they left, the place.lawph!1.net The testimony of the two witnesses as to the distance of the accused from them when he fired the gun for the second time is contradictory. On the other hand, there is not in the record any circumstances as to whether or not the deceased and the witness Agustin Menor were in the same place where they were left by the defendant, when the latter fired. The night being dark like that when the event took place, the hunter in the midst of a forest without paths is likely to get confused as to his relative situation; and after walking around, he may think having gone very far, when in fact he has not, from the point of departure. and so, judging the case from what the two witnesses Agustin Menor and Pedro Ramirez have testified to, and taking into account that there existed no motive whatever for resentment on the part of the defendant against the offended party, we are compelled to conclude that the act complained of constitutes homicide through reckless imprudence. The defendant, who was carrying a firearm to hunt at nighttime with the aid of a lantern, knowing that he had two companions, should have exercised all the necessary diligence to avoid every undesirable accident, such as the one that unfortunately occurred on the person of Victoriano Ranga. While the fact that the defendant, a few days after the event, has offered to the mother of the deceased a carabao and a horse by way of indemnity, indicates on the one hand that the defendant admitted the commission of the crime, on the other it shows that he performed that act without criminal intent and only through a real imprudence. The defense alleges that the trial court must have solved the reasonable doubt in favor of the defendant. After considering carefully the evidence and all the circumstances of the case, we are of the opinion and so hold that the defendant is guilty of the crime of homicide through reckless imprudence, and must be punished under paragraph 1 of article 568 of the Penal Code. Wherefore the penalty of one year and one day of prision correccional, with the accessories prescribed by the law, must be imposed upon him, and with modification, the judgment appealed from is affirmed in all other respects, with the costs against the appellant. So ordered. Avancea, C. J., Street, Malcolm, Ostrand, Johns, and VillaReal, JJ., concur.