Beruflich Dokumente
Kultur Dokumente
For the admission of the res gestae in evidence, the Finally, We do not agree that the taking of Ernesto de la
following requisites must be present: (1) that the Cruz' testimony was suppressed by the private
principal act, the res gestae, be a startling occurrence; respondents, thus, is presumed to be adverse to them
(2) that the statements were made before the pursuant to Section 5(e), Rule 131. For the application
of said Rule as against a party to a case, it is necessary the emergency situation brought about by the
that the evidence alleged to be suppressed is available typhoon.
only to said party (People vs. Tulale, L-7233, 18 May
1955, 97 Phil. 953). The presumption does not operate
if the evidence in question is equally available to both
parties (StaplesHowe Printing Co. vs. Bldg. and Loan
The lower court made a mistake in assuming that
Assn., 36 Phil. 421). It is clear from the records that
defendant's employees worked around the clock
petitioner could have called Ernesto de la Cruz to the
during the occurrence of the typhoon on the night
witness stand. This, precisely, was Linda Alonzo
of June 28 and until the early morning of June 29,
Estavillo's suggestion to petitioner's counsel when she
1967, Engr. Antonio Juan of the National Power
testified on cross examination:
Corporation affirmed that when he first set out on
an inspection trip between 6:00 and 6:30 A.M. on
Q. And that Erning de la Cruz, how far did he reach June 29, 1967, he saw grounded and disconnected
from the gate of the house? electric lines of the defendant but he saw
no INELCO lineman. The INELCO Office at the Life
A. Well, you can ask that matter from him sir theatre on Rizal Street was still closed. (pp. 63-64,
because he is here. (TSN, p. 30, 26 Sept. 1972) TSN, Oct. 24, 1972) Even the witnesses of
defendant contradict the finding of the lower court.
Conrado Asis, defendant's electrical engineer,
testified that he conducted a general inspection of
the franchise area of the INELCO only on June 30,
The foregoing shows that petitioner had the
1967, the day following the typhoon. The reason he
opportunity to verify the declarations of Ernesto de la
gave for the delay was that all their vehicles were
Cruz which, if truly adverse to private respondent,
submerged. (p. 337, TSN, July 20, 1973) According
would have helped its case. However, due to reasons
to Asis, he arrived at his office at 8:00 A.M. on June
known only to petitioner, the opportunity was not
30 and after briefing his men on what to do they
taken.
started out. (p. 338, lbid) One or two days after the
typhoon, the INELCO people heard "rumors that
someone was electrocuted" so he sent one of his
men to the place but his man reported back that
Coming now to the second issue, We tip the scales in there was no damaged wire. (p. 385, Id.) Loreto
the private respondents' favor. The respondent CA Abijero, chief lineman of defendant, corroborated
acted correctly in disposing the argument that Engr. Juan. He testified that at about 8:00 A.M. on
petitioner be exonerated from liability since typhoons June 29, 1967 Engr. Juan came to the INELCO plant
and floods are fortuitous events. While it is true that and asked the INELCO people to inspect their lines.
typhoons and floods are considered Acts of God for He went with Engr. Juan and their inspection lasted
which no person may be held responsible, it was not from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN,
said eventuality which directly caused the victim's Jan. 28, 1975) Fabico Abijero lineman of defendant,
death. It was through the intervention of petitioner's testified that at about 6:00 on June 29, 1967 the
negligence that death took place. We subscribe to the typhoon ceased. At that time, he was at the main
conclusions of the respondent CA when it found: building of the Divine Word College of Laoag where
he had taken his family for refuge. (pp. 510-
On the issue whether or not the defendant incurred 511, Ibid.)
liability for the electrocution and consequent death
of the late Isabel Lao Juan, defendant called to the
witness-stand its electrical engineer, chief lineman,
and lineman to show exercise of extraordinary In times of calamities such as the one which
diligence and to negate the charge of negligence. occurred in Laoag City on the night of June 28 until
The witnesses testified in a general way about their the early hours of June 29, 1967, extraordinary
duties and the measures which diligence requires a supplier of electricity to be
defendant usually adopts to prevent hazards to life in constant vigil to prevent or avoid any probable
and limb. From these testimonies, the lower court incident that might imperil life or limb. The
found "that the electric lines and other equipment evidence does not show that defendant did that.
of defendant corporation were properly maintained On the contrary, evidence discloses that there were
by a well-trained team of lineman, technicians and no men (linemen or otherwise) policing the area,
engineers working around the clock to insure that nor even manning its office. (CA Decision, pp. 24-
these equipments were in excellent condition at all 25, Rollo)
times." (P. 40, Record on Appeal) The finding of the
lower court, however, was based on what the
defendant's employees were supposed to do, not
on what they actually did or failed to do on the
date in question, and not on the occasion of Indeed, under the circumstances of the case, petitioner
was negligent in seeing to it that no harm is done to
the general public"... considering that electricity is an taken on the afternoon of June 29, 1967 (Exhs. "D" and
agency, subtle and deadly, the measure of care "E"), suggesting that said wires were just hooked to the
required of electric companies must be commensurate electric post (petitioner's Memorandum, p. 170, Rollo).
with or proportionate to the danger. The duty of However, as the CA properly held, "(t)he finding of the
exercising this high degree of diligence and care lower court ... was based on what the defendant's
extends to every place where persons have a right to employees were supposed to do, not on what they
be" (Astudillo vs. Manila Electric, 55 Phil. 427). The actually did or failed to do on the date in question, and
negligence of petitioner having been shown, it may not not on the occasion of the emergency situation brought
now absolve itself from liability by arguing that the about by the typhoon" (CA Decision, p. 25, Rollo). And
victim's death was solely due to a fortuitous event. as found by the CA, which We have already reiterated
"When an act of God combines or concurs with the above, petitioner was in fact negligent. In a like
negligence of the defendant to produce an injury, the manner, petitioner's denial of ownership of the several
defendant is liable if the injury would not have resulted wires cannot stand the logical conclusion reached by
but for his own negligent conduct or omission" (38 Am. the CA when it held that "(t)he nature of the wounds as
Jur., p. 649). described by the witnesses who saw them can lead to
no other conclusion than that they were 'burns', and
there was nothing else in the street where the victim
was wading thru which could cause a burn except the
dangling live wire of defendant company" (supra).
Likewise, the maxim "volenti non fit injuria" relied upon
by petitioner finds no application in the case at bar. It is
imperative to note the surrounding circumstances
which impelled the deceased to leave the comforts of a
roof and brave the subsiding typhoon. As testified by "When a storm occurs that is liable to prostrate the
Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) wires, due care requires prompt efforts to discover and
and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the repair broken lines" (Cooley on Torts, 4th ed., v. 3, p.
deceased, accompanied by the former two, were on 474). The fact is that when Engineer Antonio Juan of
their way to the latter's grocery store "to see to it that the National Power Corporation set out in the early
the goods were not flooded." As such, shall We punish morning of June 29, 1967 on an inspection tour, he saw
her for exercising her right to protect her property from grounded and disconnected lines hanging from posts to
the floods by imputing upon her the unfavorable the ground but did not see any INELCO lineman either
presumption that she assumed the risk of personal in the streets or at the INELCO office (vide, CA
injury? Definitely not. For it has been held that a person Decision, supra). The foregoing shows that petitioner's
is excused from the force of the rule, that when he duty to exercise extraordinary diligence under the
voluntarily assents to a known danger he must abide circumstance was not observed, confirming the
by the consequences, if an emergency is found to exist negligence of petitioner. To aggravate matters, the CA
or if the life or property of another is in peril (65A found:
C.S.C. Negligence(174(5), p. 301), or when he seeks to
rescue his endangered property (Harper and James, . . .even before June 28 the people in Laoag were
"The Law of Torts." Little, Brown and Co., 1956, v. 2, p. already alerted about the impending typhoon,
1167). Clearly, an emergency was at hand as the through radio announcements. Even the fire
deceased's property, a source of her livelihood, was department of the city announced the coming of
faced with an impending loss. Furthermore, the the big flood. (pp. 532-534, TSN, March 13, 1975)
deceased, at the time the fatal incident occurred, was At the INELCO irregularities in the flow of electric
at a place where she had a right to be without regard current were noted because "amperes of the switch
to petitioner's consent as she was on her way to volts were moving". And yet, despite these danger
protect her merchandise. Hence, private respondents, signals, INELCO had to wait for Engr. Juan to
as heirs, may not be barred from recovering damages request that defendant's switch be cut off but the
as a result of the death caused by petitioner's harm was done. Asked why the delay, Loreto
negligence (ibid., p. 1165, 1166). Abijero answered that he "was not the machine
tender of the electric plant to switch off the
current." (pp. 467-468, Ibid.) How very
characteristic of gross inefficiency! (CA Decision, p.
But petitioner assails the CA for having abused its 26, Rollo)
discretion in completely reversing the trial court's
findings of fact, pointing to the testimonies of three of
its employees its electrical engineer, collector-
inspector, lineman, and president-manager to the From the preceding, We find that the CA did not abuse
effect that it had exercised the degree of diligence its discretion in reversing the trial court's findings but
required of it in keeping its electric lines free from tediously considered the factual circumstances at hand
defects that may imperil life and limb. Likewise, the pursuant to its power to review questions of fact raised
said employees of petitioner categorically disowned from the decision of the Regional Trial Court, formerly
the fatal wires as they appear in two photographs the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent STREET, J.:
In this action the plaintiff, Amado Picart, seeks to
CA awarded the following in private respondent's favor:
recover of the defendant, Frank Smith, jr., the sum of
P30,229.45 in actual damages (i.e., P12,000 for the
P31,000, as damages alleged to have been caused by
victim's death and P18,229.45 for funeral expenses); an automobile driven by the defendant. From a
P50,000 in compensatory damages, computed in judgment of the Court of First Instance of the Province
accordance with the formula set in the Villa-Rey Transit of La Union absolving the defendant from liability the
case (31 SCRA 511) with the base of P15,000 as plaintiff has appealed.
average annual income of the deceased; P10,000 in
exemplary damages; P3,000 attorney's fees; and costs The occurrence which gave rise to the institution of this
of suit. Except for the award of P12,000 as action took place on December 12, 1912, on the
compensation for the victim's death, We affirm the Carlatan Bridge, at San Fernando, La Union. It appears
respondent CA's award for damages and attorney's that upon the occasion in question the plaintiff was
fees. Pusuant to recent jurisprudence (People vs. riding on his pony over said bridge. Before he had
Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA gotten half way across, the defendant approached from
the opposite direction in an automobile, going at the
381), We increase the said award of P12,000 to
rate of about ten or twelve miles per hour. As the
P30,000, thus, increasing the total actual damages to
defendant neared the bridge he saw a horseman on it
P48,229.45. and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge
he gave two more successive blasts, as it appeared to
him that the man on horseback before him was not
observing the rule of the road.
The exclusion of moral damages and attorney's fees
awarded by the lower court was properly made by the
The plaintiff, it appears, saw the automobile coming
respondent CA, the charge of malice and bad faith on and heard the warning signals. However, being
the part of respondents in instituting his case being a perturbed by the novelty of the apparition or the
mere product of wishful thinking and speculation. rapidity of the approach, he pulled the pony closely up
Award of damages and attorney's fees is unwarranted against the railing on the right side of the bridge
where the action was filed in good faith; there should instead of going to the left. He says that the reason he
be no penalty on the right to litigate (Espiritu vs. CA, did this was that he thought he did not have sufficient
137 SCRA 50). If damage results from a person's time to get over to the other side. The bridge is shown
exercising his legal rights, it is damnum absque to have a length of about 75 meters and a width of
injuria (Auyong Hian vs. CTA, 59 SCRA 110). 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the
proper side of the road for the machine. In so doing the
defendant assumed that the horseman would move to
the other side. The pony had not as yet exhibited
WHEREFORE, the questioned decision of the fright, and the rider had made no sign for the
respondent, except for the slight modification that automobile to stop. Seeing that the pony was
actual damages be increased to P48,229.45 is hereby apparently quiet, the defendant, instead of veering to
AFFIRMED. the right while yet some distance away or slowing
down, continued to approach directly toward the horse
without diminution of speed. When he had gotten quite
near, there being then no possibility of the horse
getting across to the other side, the defendant quickly
SO ORDERED. turned his car sufficiently to the right to escape hitting
the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in
such close proximity to the animal that it became
frightened and turned its body across the bridge with
Melencio-Herrera (Chairperson), Padilla, Sarmiento and its head toward the railing. In so doing, it as struck on
Regalado, JJ., concur. the hock of the left hind leg by the flange of the car
and the limb was broken. The horse fell and its rider
was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident
occurred the free space where the pony stood between
the automobile and the railing of the bridge was
probably less than one and one half meters. As a result
G.R. No. L-12219 March 15, 1918 of its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness
AMADO PICART, plaintiff-appellant, vs. FRANK and required medical attention for several days.
SMITH, JR., defendant-appellee.
The question presented for decision is whether or not
Alejo Mabanag for appellant. the defendant in maneuvering his car in the manner
G. E. Campbell for appellee. above described was guilty of negligence such as gives
rise to a civil obligation to repair the damage done; and warrant his foregoing conduct or guarding against its
we are of the opinion that he is so liable. As the consequences.
defendant started across the bridge, he had the right
to assume that the horse and the rider would pass over Applying this test to the conduct of the defendant in
to the proper side; but as he moved toward the center the present case we think that negligence is clearly
of the bridge it was demonstrated to his eyes that this established. A prudent man, placed in the position of
would not be done; and he must in a moment have the defendant, would in our opinion, have recognized
perceived that it was too late for the horse to cross that the course which he was pursuing was fraught
with safety in front of the moving vehicle. In the nature with risk, and would therefore have foreseen harm to
of things this change of situation occurred while the the horse and the rider as reasonable consequence of
automobile was yet some distance away; and from this that course. Under these circumstances the law
moment it was not longer within the power of the imposed on the defendant the duty to guard against
plaintiff to escape being run down by going to a place the threatened harm.
of greater safety. The control of the situation had then
passed entirely to the defendant; and it was his duty It goes without saying that the plaintiff himself was not
either to bring his car to an immediate stop or, seeing free from fault, for he was guilty of antecedent
that there were no other persons on the bridge, to take negligence in planting himself on the wrong side of the
the other side and pass sufficiently far away from the road. But as we have already stated, the defendant
horse to avoid the danger of collision. Instead of doing was also negligent; and in such case the problem
this, the defendant ran straight on until he was almost always is to discover which agent is immediately and
upon the horse. He was, we think, deceived into doing directly responsible. It will be noted that the negligent
this by the fact that the horse had not yet exhibited acts of the two parties were not contemporaneous,
fright. But in view of the known nature of horses, there since the negligence of the defendant succeeded the
was an appreciable risk that, if the animal in question negligence of the plaintiff by an appreciable interval.
was unacquainted with automobiles, he might get Under these circumstances the law is that the person
exited and jump under the conditions which here who has the last fair chance to avoid the impending
confronted him. When the defendant exposed the harm and fails to do so is chargeable with the
horse and rider to this danger he was, in our opinion, consequences, without reference to the prior
negligent in the eye of the law. negligence of the other party.
The test by which to determine the existence of The decision in the case of Rkes vs. Atlantic, Gulf and
negligence in a particular case may be stated as Pacific Co. (7 Phil. Rep., 359) should perhaps be
follows: Did the defendant in doing the alleged mentioned in this connection. This Court there held
negligent act use that person would have used in the that while contributory negligence on the part of the
same situation? If not, then he is guilty of negligence. person injured did not constitute a bar to recovery, it
The law here in effect adopts the standard supposed to could be received in evidence to reduce the damages
be supplied by the imaginary conduct of the discreet which would otherwise have been assessed wholly
paterfamilias of the Roman law. The existence of against the other party. The defendant company had
negligence in a given case is not determined by there employed the plaintiff, as a laborer, to assist in
reference to the personal judgment of the actor in the transporting iron rails from a barge in Manila harbor to
situation before him. The law considers what would be the company's yards located not far away. The rails
reckless, blameworthy, or negligent in the man of were conveyed upon cars which were hauled along a
ordinary intelligence and prudence and determines narrow track. At certain spot near the water's edge the
liability by that. track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed.
The question as to what would constitute the conduct The car was in consequence upset; the rails slid off;
of a prudent man in a given situation must of course be and the plaintiff's leg was caught and broken. It
always determined in the light of human experience appeared in evidence that the accident was due to the
and in view of the facts involved in the particular case. effects of the typhoon which had dislodged one of the
Abstract speculations cannot here be of much value supports of the track. The court found that the
but this much can be profitably said: Reasonable men defendant company was negligent in having failed to
govern their conduct by the circumstances which are repair the bed of the track and also that the plaintiff
before them or known to them. They are not, and are was, at the moment of the accident, guilty of
not supposed to be, omniscient of the future. Hence contributory negligence in walking at the side of the
they can be expected to take care only when there is car instead of being in front or behind. It was held that
something before them to suggest or warn of danger. while the defendant was liable to the plaintiff by reason
Could a prudent man, in the case under consideration, of its negligence in having failed to keep the track in
foresee harm as a result of the course actually proper repair nevertheless the amount of the damages
pursued? If so, it was the duty of the actor to take should be reduced on account of the contributory
precautions to guard against that harm. Reasonable negligence in the plaintiff. As will be seen the
foresight of harm, followed by ignoring of the defendant's negligence in that case consisted in an
suggestion born of this prevision, is always necessary omission only. The liability of the company arose from
before negligence can be held to exist. Stated in these its responsibility for the dangerous condition of its
terms, the proper criterion for determining the track. In a case like the one now before us, where the
existence of negligence in a given case is this: Conduct defendant was actually present and operating the
is said to be negligent when a prudent man in the automobile which caused the damage, we do not feel
position of the tortfeasor would have foreseen that an constrained to attempt to weigh the negligence of the
effect harmful to another was sufficiently probable to respective parties in order to apportion the damage
according to the degree of their relative fault. It is
enough to say that the negligence of the defendant
was in this case the immediate and determining cause
of the accident and that the antecedent negligence of G.R. No. 131588. March 27, 2001]
the plaintiff was a more remote factor in the case. PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. GLENN DE LOS SANTOS, accused-appellant.
A point of minor importance in the case is indicated in DECISION
the special defense pleaded in the defendant's answer, DAVIDE, JR., C.J.:
to the effect that the subject matter of the action had One may perhaps easily recall the gruesome and tragic
been previously adjudicated in the court of a justice of event in Cagayan de Oro City, reported over print and
the peace. In this connection it appears that soon after broadcast media, which claimed the lives of several
the accident in question occurred, the plaintiff caused members of the Philippine National Police (PNP) who
criminal proceedings to be instituted before a justice of were undergoing an endurance run as part of the
the peace charging the defendant with the infliction of Special Counter Insurgency Operation Unit
serious injuries (lesiones graves). At the preliminary Training. Not much effort was spared for the search of
investigation the defendant was discharged by the the one responsible therefor, as herein accused-
magistrate and the proceedings were dismissed. appellant Glenn de los Santos (hereafter GLENN)
Conceding that the acquittal of the defendant at the immediately surrendered to local authorities. GLENN
trial upon the merits in a criminal prosecution for the was then charged with the crimes of Multiple Murder,
offense mentioned would be res adjudicata upon the Multiple Frustrated Murder, and Multiple Attempted
question of his civil liability arising from negligence -- a Murder in an information filed with the Regional Trial
point upon which it is unnecessary to express an Court of Cagayan de Oro City. The information reads as
opinion -- the action of the justice of the peace in follows:
dismissing the criminal proceeding upon the That on or about October 05, 1995, in the early
preliminary hearing can have no effect. (See U. S. vs. morning, at Maitum Highway, within Barangay
Banzuela and Banzuela, 31 Phil. Rep., 564.) Puerto, Cagayan de Oro City, Philippines, and
within the jurisdiction of this Honorable Court, the
From what has been said it results that the judgment of above-named accused, with deliberate intent to
the lower court must be reversed, and judgment is her kill, taking advantage of his driven motor vehicle,
rendered that the plaintiff recover of the defendant the an Isuzu Elf, and with treachery, did then and there
sum of two hundred pesos (P200), with costs of other willfully, unlawfully and feloniously kill and inflict
instances. The sum here awarded is estimated to mortal wounds from behind in a sudden and
include the value of the horse, medical expenses of the unexpected manner with the use of said vehicle
plaintiff, the loss or damage occasioned to articles of members of the Philippine National Police (PNP),
his apparel, and lawful interest on the whole to the undergoing a Special Training Course (Scout Class
date of this recovery. The other damages claimed by 07-95), wearing black T-shirts and black short
the plaintiff are remote or otherwise of such character pants, performing an Endurance Run of 35
as not to be recoverable. So ordered. kilometers coming from their camp in Manolo
Fortich, Bukidnon, heading to Regional Training
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Headquarters in Camp Alagar, Cagayan de Oro
Fisher, JJ., concur. City, running in a column of 3, with a distance of
Johnson, J., reserves his vote. two feet, more or less, from one trainee to another,
thus forming a [sic] three lines, with a length of
Separate Opinions more or less 50 meters from the 1st man to the last
MALCOLM, J., concurring: man, unable to defend themselves, because the
After mature deliberation, I have finally decided to accused ran or moved his driven vehicle on the
concur with the judgment in this case. I do so because direction of the backs of the PNP joggers in spite of
of my understanding of the "last clear chance" rule of the continuous warning signals made by six of the
the law of negligence as particularly applied to joggers, namely: PO1 Allan Tabacon Espana,
automobile accidents. This rule cannot be invoked Waldon Sinda Sacro, Lemuel Ybanez Pangca,
where the negligence of the plaintiff is concurrent with Artemio Jamil Villaflor, Nardo Omasas Collantes and
that of the defendant. Again, if a traveler when he Joselito Buyser Escartin, who were at the rear
reaches the point of collision is in a situation to echelon of said run, acting as guards, by
extricate himself and avoid injury, his negligence at continuously waving their hands at the accused for
that point will prevent a recovery. But Justice Street him to take the left lane of the highway, going to
finds as a fact that the negligent act of the interval of the City proper, from a distance of 100 meters
time, and that at the moment the plaintiff had no away from the joggers rear portion, but which
opportunity to avoid the accident. Consequently, the accused failed and refused to heed; instead, he
"last clear chance" rule is applicable. In other words, proceeded to operate his driven vehicle (an Isuzu
when a traveler has reached a point where he cannot Elf) on high speed directly towards the joggers,
extricate himself and vigilance on his part will not avert thus forcing the rear guard[s] to throw themselves
the injury, his negligence in reaching that position to [a] nearby canal, to avoid injuries, then hitting,
becomes the condition and not the proximate cause of bumping, or ramming the first four (4) victims,
the injury and will not preclude a recovery. (Note causing the bodies to be thrown towards the
especially Aiken vs. Metcalf [1917], 102 Atl., 330.) windshields of said Isuzu Elf, breaking said
windshield, and upon being aware that bodies of
the victims flew on the windshield of his driven
vehicle, instead of applying his brake, continued to
travel on a high speed, this time putting off its Prosecution witnesses Lemuel Y. Pangca and Weldon
headlights, thus hitting the succeeding joggers on Sacro testified that they were assigned as rear guards
said 1st line, as a result thereof the following were of the first column. They recalled that from Alae to
killed on the spot: Maitum Highway, Puerto, Cagayan de Oro City, about
1. Vincent Labis Rosal 7. Antonio Flores Lasco 20 vehicles passed them, all of which slowed down and
2. Allan Amoguis Abis 8. Igmedio Salinas Lituanas took the left portion of the road when signaled to do so.
3. Jose Arden M. Atisa 9. Roberto Cabussao Loren [2]
While the following Police Officers I (POI) sustained The vehicle which we are now inspecting at the police
minor injuries, to wit: station is the same vehicle which [was] involved in the
1. Romanito Andrada 6. Romualdo Cotor Dacera October 5, 1995 incident, an Isuzu Elf vehicle colored
2. Richard Canoy Caday 7. Ramil Rivas Gaisano light blue with strips painting along the side colored
3. Rey Cayusa 8. Dibangkita Magandang orange and yellow as well as in front. We further
4. Avelino Chua 9. Martin Olivero Pelarion manifest that the windshield was totally damaged and
5. Henry Gadis Coubeta 10. Flordicante Martin 2/3 portion of the front just below the windshield was
Piligro heavily dented as a consequence of the impact. The
after which said accused thereafter escaped from lower portion was likewise damaged more particularly
the scene of the incident, leaving behind the in the radiator guard. The bumper of said vehicle was
victims afore-enumerated helpless. likewise heavily damaged in fact there is a cut of the
plastic used as a bumper; that the right side of the
Contrary to Article 248, in relation to Article 6 of the headlight was likewise totally damaged. The front
Revised Penal Code. signal light, right side was likewise damaged. The side
mirror was likewise totally damaged. The height of the
The evidence for the prosecution disclose that the truck from the ground to the lower portion of the
Special Counter Insurgency Operation Unit Training windshield is 5 ft. and the height of the truck on the
held at Camp Damilag, Manolo Fortich, Bukidnon, front level is 5 ft.[4]
started on 1 September 1995 and was to end on 15
October 1995. The last phase of the training was the PO3 Jose Cabugwas testified that he was assigned at
endurance run from said Camp to Camp Alagar, the Investigation Division at Precinct 6, Cagayan de Oro
Cagayan de Oro City. The run on 5 October 1995 City, and that at 4 a.m. of 5 October 1995, several
started at 2:20 a.m. The PNP trainees were divided into members of the PNP came to their station and reported
three columns: the first and second of which had 22 that they had been bumped by a certain
trainees each, and the third had 21. The trainees were vehicle. Immediately after receiving the report, he and
wearing black T-shirts, black short pants, and green two other policemen proceeded to the traffic scene to
and black combat shoes. At the start of the run, a conduct an ocular inspection. Only bloodstains and
Hummer vehicle tailed the jogging trainees. When they broken particles of the hit-and-run vehicle remained on
reached Alae, the driver of the Hummer vehicle was the highway. They did not see any brake marks on the
instructed to dispatch advanced security at strategic highway, which led him to conclude that the brakes of
locations in Carmen Hill. Since the jogging trainees the vehicle had not been applied. The policemen
were occupying the right lane of the highway, two rear measured the bloodstains and found them to be 70 ft.
security guards were assigned to each rear long.[5]
column. Their duty was to jog backwards facing the
oncoming vehicles and give hand signals for other GLENNs version of the events that transpired that
vehicles to take the left lane.[1] evening is as follows:
At about 10:30 p.m. of 4 October 1995, he was was astonished and afraid. He was trembling and
asked by his friend Enting Galindez and the latters could not see what were being bumped. At the
fellow band members to provide them with succeeding bumping thuds, he was not able to
transportation, if possible an Isuzu Forward, that pump the brake, nor did he notice that his foot was
would bring their band instruments, band utilities pushing the pedal. He returned to his senses only
and band members from Macasandig and Corrales, when one of his companions woke up and said to
Cagayan de Oro City, to Balingoan. From there, him: Gard, it seems we bumped on something. Just
they were supposed to be taken to Mambajao, relax, we might all die. Due to its momentum, the
Camiguin, to participate in the San Miguel- Elf continued on its track and was able to stop only
sponsored Sabado Nights of the Lanzones Festival when it was already very near the next curve.[10]
from 5-7 October 1995. It was the thirteenth time
that Enting had asked such a favor from him. GLENN could not distinguish in the darkness what
[6]
Since the arrangement was to fetch Galindez and he had hit, especially since the right headlights of
his group at 4:00 a.m. of 5 October 1995, GLENN the truck had been busted upon the first bumping
immediately went to Cugman, Cagayan de Oro thuds. In his confusion and fear, he immediately
City, to get his Isuzu Elf truck. After which, he proceeded home. GLENN did not report the incident
proceeded back to his house at Bugo, Cagayan de to the Puerto Police Station because he was not
Oro City, and told his wife that he would go to aware of what exactly he had hit. It was only when
Bukidnon to get his aunts Isuzu Forward truck he reached his house that he noticed that the grill
because the twenty band members and nine of the truck was broken; the side mirror and round
utilities and band instruments could not be mirror, missing; and the windshield, splintered. Two
accommodated in the Isuzu Elf truck. Three of his hours later, he heard on Bombo Radyo that an
friends asked to go along, namely, Roldan Paltonag, accident had occurred, and he realized that it was
Andot Pea, and a certain Akut.[7] the PNP group that he had hit. GLENN surrendered
that same day to Governor Emano.[11]
After leaving GLENNs house, the group decided to
stop at Celebrity Plaza Restaurant. GLENN saw The defense also presented Crescente Galindez, as well
his kumpare Danilo Cosin and the latters wife, and as Shirley Almazan of the PAG-ASA Office, Cagayan de
joined them at the table. GLENN finished three Oro City. The former testified that when he went to
bottles of pale pilsen beer. When the Cosin spouses GLENNs house at about 10:00 p.m. of 4 October 1995,
left, GLENN joined his travelling companions at there was heavy rain; and at 12:00 midnight, the rain
their table. The group left at 12:00 midnight for was moderate. He corroborated GLENNs testimony that
Bukidnon. The environment was dark and foggy, he (Crescente) went to GLENNs house that evening in
with occasional rains. It took them sometime order to hire a truck that would bring the band
looking for the Isuzu Forward truck. Finally, they instruments, band utilities and band members from
saw the truck in Agusan Canyon. Much to their Cagayan de Oro to Camiguin for the Lanzones Festival.
disappointment, the said truck had mechanical [12]
Almazan, on the other hand, testified that based on
problems. Hence, GLENN decided to go back to an observed weather report within the vicinity of
Cagayan de Oro City to tell Enting that they would Cagayan de Oro City, there was rain from 8:00 p.m. of
use the Isuzu Elf truck instead.[8] October 1995 to 2:00 a.m. the next day; and the sky
was overcast from 11:00 p.m. of 4 October 1995 to
GLENN drove slowly because the road was 5:00 a.m. of 5 October 1995. What she meant by
slippery. The vicinity was dark: there was no moon overcast is that there was no break in the sky; and,
or star; neither were there lampposts. From the definitely, the moon and stars could not be seen.[13]
Alae junction, he and his companions used the
national highway, traversing the right lane going to The prosecution presented rebuttal witness Danilo
Cagayan de Oro City. At the vicinity of Olarita whose house was just 100 meters away from
Mambatangan junction, as the Elf was negotiating the place where the incident occurred. He testified that
a left curve going slightly downward, GLENN saw a he was awakened on that fateful night by a series of
very bright and glaring light coming from the loud thuds. Thereafter, a man came to his house and
opposite direction of the national highway. GLENN asked for a glass of water, claiming to have been hit by
blinked his headlights as a signal for the other a vehicle. Danilo further stated that the weather at the
driver to switch his headlights from bright to time was fair, and that the soil was dry and not muddy.
dim. GLENN switched his own lights from bright to [14]
We are convinced that the incident, tragic though it GLENN, being then a young college graduate and an
was in light of the number of persons killed and experienced driver, should have known to apply the
seriously injured, was an accident and not an brakes or swerve to a safe place immediately upon
intentional felony. It is significant to note that there is hearing the first bumping thuds to avoid further hitting
no shred of evidence that GLENN had an axe to grind the other trainees. By his own testimony, it was
against the police trainees that would drive him into established that the road was slippery and slightly
deliberately hitting them with intent to kill. going downward; and, worse, the place of the incident
Although proof of motive is not indispensable to a was foggy and dark. He should have observed due care
conviction especially where the assailant is positively in accordance with the conduct of a reasonably prudent
identified, such proof is, nonetheless, important in man, such as by slackening his speed, applying his
determining which of two conflicting theories of the brakes, or turning to the left side even if it would mean
incident is more likely to be true.[20] Thus, in People v. entering the opposite lane (there being no evidence
Godinez,[21] this Court said that the existence of a that a vehicle was coming from the opposite
motive on the part of the accused becomes decisive in direction). It is highly probable that he was driving at
determining the probability or credibility of his version high speed at the time. And even if he was driving
that the shooting was purely accidental. within the speed limits, this did not mean that he was
exercising due care under the existing circumstances
Neither is there any showing of a political angle of a and conditions at the time.
leftist-sponsored massacre of police elements
disguised in a vehicular accident. [22] Even if there be Considering that the incident was not a product of a
such evidence, i.e., that the motive of the killing was in malicious intent but rather the result of a single act of
furtherance of a rebellion movement, GLENN cannot be reckless driving, GLENN should be held guilty of the
convicted because if such were the case, the proper complex crime of reckless imprudence resulting in
charge would be rebellion, and not murder.[23] multiple homicide with serious physical injuries and
less serious physical injuries.
GLENNs offense is in failing to apply the brakes, or to
swerve his vehicle to the left or to a safe place the Article 48 of the Revised Penal Code provides that
moment he heard and felt the first bumping thuds. Had when the single act constitutes two or more grave or
he done so, many trainees would have been spared. less grave felonies, or when an offense is a necessary
means for committing the other, the penalty for the
We have once said: most serious crime shall be imposed, the same to be
A man must use common sense, and exercise due applied in its maximum period. Since Article 48 speaks
reflection in all his acts; it is his duty to be of felonies, it is applicable to crimes through
cautious, careful, and prudent, if not from instinct, negligence in view of the definition of felonies in Article
then through fear of incurring punishment. He is 3 as acts or omissions punishable by law committed
responsible for such results as anyone might either by means of deceit (dolo) or fault (culpa).
foresee and for acts which no one would have [26]
In Reodica v. Court of Appeals,[27] we ruled that if a
performed except through culpable reckless, imprudent, or negligent act results in two or
abandon. Otherwise his own person, rights and more grave or less grave felonies, a complex crime is
property, and those of his fellow-beings, would ever committed. Thus, in Lapuz v. Court of Appeals,[28] the
be exposed to all manner of danger and injury.[24] accused was convicted, in conformity with Article 48 of
the Revised Penal Code, of the complex crime of
The test for determining whether a person is negligent homicide with serious physical injuries and damage to
in doing an act whereby injury or damage results to the property through reckless imprudence, and was
person or property of another is this: Could a prudent sentenced to a single penalty of imprisonment, instead
man, in the position of the person to whom negligence of the two penalties imposed by the trial court. Also,
is attributed, foresee harm to the person injured as a in Soriao v. Court of Appeals,[29] the accused was
reasonable consequence of the course actually convicted of the complex crime of multiple homicide
pursued? If so, the law imposes a duty on the actor to with damage to property through reckless imprudence
refrain from that course or to take precautions to guard for causing a motor boat to capsize, thereby drowning
against its mischievous results, and the failure to do so to death its twenty-eight passengers.
constitutes negligence. Reasonable foresight of harm,
followed by the ignoring of the admonition born of this The slight physical injuries caused by GLENN to the ten
prevision, is always necessary before negligence can other victims through reckless imprudence, would, had
be held to exist.[25] they been intentional, have constituted light
felonies. Being light felonies, which are not covered by
GLENN showed an inexcusable lack of Article 48, they should be treated and punished as
precaution. Article 365 of the Revised Penal Code separate offenses. Separate informations should have,
states that reckless imprudence consists in voluntarily, therefore, been filed.
but without malice, doing or failing to do an act from
It must be noted that only one information (for multiple circumstances. Hence, for the complex crime of
murder, multiple frustrated murder and multiple reckless imprudence resulting in multiple homicide with
attempted murder) was filed with the trial serious physical injuries and less serious physical
court. However, nothing appears in the record that injuries, qualified by his failure to render assistance to
GLENN objected to the multiplicity of the information in the victims, he may be sentenced to suffer an
a motion to quash before his arraignment. Hence, he is indeterminate penalty ranging from arresto mayor in
deemed to have waived such defect.[30] Under Section its maximum period to prision correccional in its
3, Rule 120 of the Rules of Court, when two or more medium period, as minimum, to prision mayor in its
offenses are charged in a single complaint or medium period, as maximum. As to the crimes of
information and the accused fails to object to it before reckless imprudence resulting in slight physical
trial, the court may convict the accused of as many injuries, since the maximum term for each count is only
offenses as are charged and proved, and impose on two months the Indeterminate Sentence Law will not
him the penalty for each of them. apply.
Now, we come to the penalty. Under Article 365 of the As far as the award of damages is concerned, we find a
Revised Penal Code, any person who, by reckless necessity to modify the same. Conformably with
imprudence, shall commit any act which, had it been current jurisprudence,[34] we reduce the trial courts
intentional, would constitute a grave felony shall suffer award of death indemnity from P75,000 to P50,000 for
the penalty of arresto mayor in its maximum period each group of heirs of the trainees killed. Likewise, for
to prision correccional in its medium period; and if it lack of factual basis, we delete the awards of P30,000
would have constituted a light felony, the penalty to each of those who suffered serious physical injuries
of arresto menor in its maximum period shall be and of P10,000 to each of those who suffered minor
imposed. The last paragraph thereof provides that the physical injuries.
penalty next higher in degree shall be imposed upon
the offender who fails to lend on the spot to the injured WHEREFORE, the decision of the Regional Trial Court,
parties such help as may be in his hand to give. This Branch 38, Cagayan de Oro City, is hereby SET ASIDE,
failure to render assistance to the victim, therefore, and another one is rendered holding herein accused-
constitutes a qualifying circumstance because the appellant GLENN DE LOS SANTOS guilty beyond
presence thereof raises the penalty by one degree. reasonable doubt of (1) the complex crime of reckless
[31]
Moreover, the fifth paragraph thereof provides that imprudence resulting in multiple homicide with serious
in the imposition of the penalty, the court shall exercise physical injuries and less serious physical injuries, and
its sound discretion without regard to the rules sentencing him to suffer an indeterminate penalty of
prescribed in Article 64. Elsewise stated, in felonies four (4) years of prision correccional, as minimum, to
through imprudence or negligence, modifying ten (10) years of prision mayor, as maximum; and (2)
circumstances need not be considered in the ten (10) counts of reckless imprudence resulting in
imposition of the penalty.[32] slight physical injuries and sentencing him, for each
count, to the penalty of two (2) months of arresto
In the case at bar, it has been alleged in the mayor. Furthermore, the awards of death indemnity for
information and proved during the trial that GLENN each group of heirs of the trainees killed are reduced to
escaped from the scene of the incident, leaving behind P50,000; and the awards in favor of the other victims
the victims. It being crystal clear that GLENN failed to are deleted. Costs against accused-appellant.
render aid to the victims, the penalty provided for
under Article 365 shall be raised by one degree. Hence, SO ORDERED.
for reckless imprudence resulting in multiple homicide
with serious physical injuries and less serious physical Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban,
injuries, the penalty would be prision correccional in its Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
maximum period to prision mayor in its medium Santiago, De Leon, Jr., and Sandoval-Gutierrez,
period. Applying Article 48, the maximum of said JJ., concur.
penalty, which is prision mayor in its medium period, Puno, J., abroad on official business.
should be imposed. For the separate offenses of
reckless imprudence resulting in slight physical
injuries, GLENN may be sentenced to suffer, for each
count, the penalty of arresto mayor in its minimum
period.
The CA reversed the Decision of the Regional Trial The CA further held as inadequately proven petitioners
Court (RTC) of Makati City (Branch 134), which had claim that the loss or the deterioration of the goods
disposed as follows: was due to pre-shipment damage.[9] It likewise opined
WHEREFORE, in view of the foregoing, that the notation metal envelopes rust stained and
judgment is hereby rendered, dismissing the slightly dented placed on the Bill of Lading had not
been the proximate cause of the damage to the four are delivered, actually or constructively, to the
(4) coils.[10] consignee or to the person who has a right to receive
them.[15]
As to the extent of petitioners liability, the CA held that
the package limitation under COGSA was not This strict requirement is justified by the fact that,
applicable, because the words L/C No. 90/02447 without a hand or a voice in the preparation of such
indicated that a higher valuation of the cargo had been contract, the riding public enters into a contract of
declared by the shipper. The CA, however, affirmed the transportation with common carriers. [16] Even if it wants
award of attorneys fees. to, it cannot submit its own stipulations for their
approval.[17] Hence, it merely adheres to the agreement
Hence, this Petition.[11] prepared by them.
This Courts Ruling That petitioners failed to rebut the prima facie
The Petition is partly meritorious. presumption of negligence is revealed in the case at
bar by a review of the records and more so by the
First Issue: evidence adduced by respondent.[25]
Proof of Negligence
Petitioners contend that the presumption of fault First, as stated in the Bill of Lading, petitioners received
imposed on common carriers should not be applied on the subject shipment in good order and condition in
the basis of the lone testimony offered by private Hamburg, Germany.[26]
respondent. The contention is untenable.
Second, prior to the unloading of the cargo, an
Well-settled is the rule that common carriers, from the Inspection Report[27] prepared and signed by
nature of their business and for reasons of public representatives of both parties showed the steel bands
policy, are bound to observe extraordinary broken, the metal envelopes rust-stained and heavily
diligence and vigilance with respect to the safety of the buckled, and the contents thereof exposed and rusty.
goods and the passengers they transport. [13] Thus,
common carriers are required to render service with Third, Bad Order Tally Sheet No. 154979[28] issued by
the greatest skill and foresight and to use all Jardine Davies Transport Services, Inc., stated that the
reason[a]ble means to ascertain the nature and four coils were in bad order and condition. Normally, a
characteristics of the goods tendered for shipment, and request for a bad order survey is made in case there is
to exercise due care in the handling and stowage, an apparent or a presumed loss or damage.[29]
including such methods as their nature requires. [14] The
extraordinary responsibility lasts from the time the Fourth, the Certificate of Analysis[30] stated that, based
goods are unconditionally placed in the possession of on the sample submitted and tested, the steel sheets
and received for transportation by the carrier until they found in bad order were wet with fresh water.
vessel should have known at the outset that metal
Fifth, petitioners -- in a letter[31] addressed to the envelopes in the said state would eventually
Philippine Steel Coating Corporation and dated October deteriorate when not properly stored while in transit.
12, 1990 -- admitted that they were aware of the [37]
Equipped with the proper knowledge of the nature
condition of the four coils found in bad order and of steel sheets in coils and of the proper way of
condition. transporting them, the master of the vessel and his
crew should have undertaken precautionary measures
These facts were confirmed by Ruperto Esmerio, head to avoid possible deterioration of the cargo. But none
checker of BM Santos Checkers Agency. Pertinent of these measures was taken.[38] Having failed to
portions of his testimony are reproduce hereunder: discharge the burden of proving that they have
Q. Mr. Esmerio, you mentioned that you are a Head exercised the extraordinary diligence required by law,
Checker. Will you inform the Honorable Court with petitioners cannot escape liability for the damage to
what company you are connected? the four coils.[39]
A. BM Santos Checkers Agency, sir.
Q. How is BM Santos Checkers Agency related or In their attempt to escape liability, petitioners further
connected with defendant Jardine Davies Transport contend that they are exempted from liability under
Services? Article 1734(4) of the Civil Code. They cite the notation
A. It is the company who contracts the checkers, metal envelopes rust stained and slightly dented
sir. printed on the Bill of Lading as evidence that the
Q. You mentioned that you are a Head Checker, will character of the goods or defect in the packing or the
you inform this Honorable Court your duties and containers was the proximate cause of the damage. We
responsibilities? are not convinced.
A. I am the representative of BM Santos on board From the evidence on record, it cannot be reasonably
the vessel, sir, to supervise the discharge of concluded that the damage to the four coils was due to
cargoes. the condition noted on the Bill of Lading. [40] The
xxxxxxxxx aforecited exception refers to cases when goods are
Q. On or about August 1, 1990, were you still lost or damaged while in transit as a result of the
connected or employed with BM Santos as a Head natural decay of perishable goods or the fermentation
Checker? or evaporation of substances liable therefor, the
A. Yes, sir. necessary and natural wear of goods in transport,
Q. And, on or about that date, do you recall having defects in packages in which they are shipped, or the
attended the discharging and inspection of cold natural propensities of animals. [41] None of these is
steel sheets in coil on board the MV/AN ANGEL present in the instant case.
SKY?
A. Yes, sir, I was there. Further, even if the fact of improper packing was
xxxxxxxxx known to the carrier or its crew or was apparent upon
Q. Based on your inspection since you were also ordinary observation, it is not relieved of liability for
present at that time, will you inform this Honorable loss or injury resulting therefrom, once it accepts the
Court the condition or the appearance of the bad goods notwithstanding such condition.[42] Thus,
order cargoes that were unloaded from the petitioners have not successfully proven the
MV/ANANGEL SKY? application of any of the aforecited exceptions in the
ATTY. MACAMAY: present case.[43]
Objection, Your Honor, I think the document itself
reflects the condition of the cold steel sheets and Second Issue:
the best evidence is the document itself, Your Notice of Loss
Honor that shows the condition of the steel sheets. Petitioners claim that pursuant to Section 3, paragraph
COURT: 6 of the Carriage of Goods by Sea Act [44] (COGSA),
Let the witness answer. respondent should have filed its Notice of Loss within
A. The scrap of the cargoes is broken already and three days from delivery. They assert that the cargo
the rope is loosen and the cargoes are dent on the was discharged on July 31, 1990, but that respondent
sides.[32] filed its Notice of Claim only on September 18, 1990. [45]
All these conclusively prove the fact of shipment in We are not persuaded. First, the above-cited provision
good order and condition and the consequent damage of COGSA provides that the notice of claim need not be
to the four coils while in the possession of petitioner, given if the state of the goods, at the time of their
[33]
who notably failed to explain why.[34] receipt, has been the subject of a joint inspection or
survey. As stated earlier, prior to unloading the cargo,
Further, petitioners failed to prove that they observed an Inspection Report[46] as to the condition of the goods
the extraordinary diligence and precaution which the was prepared and signed by representatives of both
law requires a common carrier to know and to follow, to parties.[47]
avoid damage to or destruction of the goods entrusted
to it for safe carriage and delivery.[35] Second, as stated in the same provision, a failure to file
a notice of claim within three days will not bar recovery
True, the words metal envelopes rust stained and if it is nonetheless filed within one year.[48] This one-
slightly dented were noted on the Bill of Lading; year prescriptive period also applies to the shipper, the
however, there is no showing that petitioners exercised consignee, the insurer of the goods or any legal holder
due diligence to forestall or lessen the loss. [36]Having of the bill of lading.[49]
been in the service for several years, the master of the
In Loadstar Shipping Co., Inc. v. Court of Appeals, [50] we be shipped. This fact notwithstanding, the insertion of
ruled that a claim is not barred by prescription as long the words L/C No. 90/02447 cannot be the basis for
as the one-year period has not lapsed. Thus, in the petitioners liability.
words of the ponente, Chief Justice Hilario G. Davide Jr.:
Inasmuch as the neither the Civil Code nor the First, a notation in the Bill of Lading which indicated the
Code of Commerce states a specific prescriptive amount of the Letter of Credit obtained by the shipper
period on the matter, the Carriage of Goods by Sea for the importation of steel sheets did not effect a
Act (COGSA)--which provides for a one-year period declaration of the value of the goods as required by the
of limitation on claims for loss of, or damage to, bill.[67] That notation was made only for the
cargoes sustained during transit--may be applied convenience of the shipper and the bank processing
suppletorily to the case at bar. the Letter of Credit.[68]
In the present case, the cargo was discharged on July Second, in Keng Hua Paper Products v. Court of
31, 1990, while the Complaint[51] was filed by Appeals,[69] we held that a bill of lading was separate
respondent on July 25, 1991, within the one-year from the Other Letter of Credit arrangements. We ruled
prescriptive period. thus:
(T)he contract of carriage, as stipulated in the bill
Third Issue: of lading in the present case, must be treated
Package Limitation independently of the contract of sale between the
Assuming arguendo they are liable for respondents seller and the buyer, and the contract of issuance
claims, petitioners contend that their liability should be of a letter of credit between the amount of goods
limited to US$500 per package as provided in the Bill of described in the commercial invoice in the contract
Lading and by Section 4(5)[52] of COGSA.[53] of sale and the amount allowed in the letter of
credit will not affect the validity and enforceability
On the other hand, respondent argues that Section 4(5) of the contract of carriage as embodied in the bill
of COGSA is inapplicable, because the value of the of lading. As the bank cannot be expected to look
subject shipment was declared by petitioners beyond the documents presented to it by the seller
beforehand, as evidenced by the reference to and the pursuant to the letter of credit, neither can the
insertion of the Letter of Credit or L/C No. 90/02447 in carrier be expected to go beyond the
the said Bill of Lading.[54] representations of the shipper in the bill of lading
A bill of lading serves two functions. First, it is a receipt and to verify their accuracy vis--vis the commercial
for the goods shipped.[55] Second, it is a contract by invoice and the letter of credit. Thus, the
which three parties -- namely, the shipper, the carrier, discrepancy between the amount of goods
and the consignee -- undertake specific responsibilities indicated in the invoice and the amount in the bill
and assume stipulated obligations.[56] In a nutshell, the of lading cannot negate petitioners obligation to
acceptance of the bill of lading by the shipper and the private respondent arising from the contract of
consignee, with full knowledge of its contents, gives transportation.[70]
rise to the presumption that it constituted a perfected
and binding contract.[57] In the light of the foregoing, petitioners liability should
be computed based on US$500 per package and not on
Further, a stipulation in the bill of lading limiting to a the per metric ton price declared in the Letter of Credit.
certain sum the common carriers liability for loss or [71]
In Eastern Shipping Lines, Inc. v. Intermediate
destruction of a cargo -- unless the shipper or owner Appellate Court[72] we explained the meaning
declares a greater value[58] -- is sanctioned by law. of package:
[59]
There are, however, two conditions to be satisfied: When what would ordinarily be considered
(1) the contract is reasonable and just under the packages are shipped in a container supplied by
circumstances, and (2) it has been fairly and freely the carrier and the number of such units is
agreed upon by the parties. [60] The rationale for, this disclosed in the shipping documents, each of those
rule is to bind the shippers by their agreement to the units and not the container constitutes the package
value (maximum valuation) of their goods.[61] referred to in the liability limitation provision of
Carriage of Goods by Sea Act.
It is to be noted, however, that the Civil Code does not
limit the liability of the common carrier to a fixed Considering, therefore, the ruling in Eastern Shipping
amount per package.[62] In all matters not regulated by Lines and the fact that the Bill of Lading clearly
the Civil Code, the right and the obligations of common disclosed the contents of the containers, the number of
carriers shall be governed by the Code of Commerce units, as well as the nature of the steel sheets, the four
and special laws.[63] Thus, the COGSA, which is damaged coils should be considered as the shipping
suppletory to the provisions of the Civil Code, unit subject to the US$500 limitation.
supplements the latter by establishing a statutory
provision limiting the carriers liability in the absence of WHEREFORE, the Petition is partly granted and the
a shippers declaration of a higher value in the bill of assailed Decision MODIFIED. Petitioners liability is
lading.[64] The provisions on limited liability are as much reduced to US$2,000 plus interest at the legal rate of
a part of the bill of lading as though physically in it and six percent from the time of the filing of the Complaint
as though placed there by agreement of the parties.[65] on July 25, 1991 until the finality of this Decision, and
12 percent thereafter until fully paid. No
In the case before us, there was no stipulation in the pronouncement as to costs.
Bill of Lading[66] limiting the carriers liability. Neither did
the shipper declare a higher valuation of the goods to SO ORDERED.
Sandoval-Gutierrez, and Carpio, JJ., concur. that the legal and proximate cause of his injuries was
Puno, J., (Chairman), abroad, on official leave. the negligent manner in which Carbonel had parked
the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand,
countered that the proximate cause of Dionisio's
injuries was his own recklessness in driving fast at the
time of the accident, while under the influence of
liquor, without his headlights on and without a curfew
pass. Phoenix also sought to establish that it had
exercised due rare in the selection and supervision of
G.R. No. L-65295 March 10, 1987 the dump truck driver.
Since it is not known how minor Ong came into the big
Ledesma, Guytingco, Veleasco & Associates for
swimming pool and it being apparent that he went
respondent Ernest E. Simke.
there without any companion in violation of one of the
regulations of appellee as regards the use of the pools,
and it appearing that lifeguard Aba__o responded to
the call for help as soon as his attention was called to it
and immediately after retrieving the body all efforts at CORTES, J.:
the disposal of appellee had been put into play in order
to bring him back to life, it is clear that there is no Assailed in this petition for review on certiorari is the
room for the application of the doctrine now invoked by decision of the Court of Appeals affirming the trial court
appellants to impute liability to appellee.. decision which reads as follows:
The last clear chance doctrine can never apply WHEREFORE, judgment is hereby rendered
where the party charged is required to act ordering defendant to pay plaintiff the amount of
instantaneously, and if the injury cannot be P15,589.55 as full reimbursement of his actual
avoided by the application of all means at hand medical and hospital expenses, with interest at the
after the peril is or should have been discovered; at legal rate from the commencement of the suit; the
least in cases in which any previous negligence of amount of P20,200.00 as consequential damages;
the party charged cannot be said to have the amount of P30,000.00 as moral damages; the
contributed to the injury. O'Mally vs. Eagan, 77 ALR amount of P40,000.00 as exemplary damages; the
further amount of P20,000.00 as attorney's fees
and the costs [Rollo, p. 24].
Petitioner now comes before this Court raising the
following assignment of errors:
The facts of the case are as follows: 1. The Court of Appeals gravely erred in not holding
that the present the CAA is really a suit against the
Private respondent is a naturalized Filipino citizen and Republic of the Philippines which cannot be sued
at the time of the incident was the Honorary Consul without its consent, which was not given in this
Geileral of Israel in the Philippines. case.
Private respondent then filed an action for damages Invoking the rule that the State cannot be sued without
based on quasi-delict with the Court of First Instance of its consent, petitioner contends that being an agency
Rizal, Branch VII against petitioner Civil Aeronautics of the government, it cannot be made a party-
Administration or CAA as the entity empowered "to defendant in this case.
administer, operate, manage, control, maintain and
develop the Manila International Airport ... ." [Sec. 32
(24), R.A. 776].
This Court has already held otherwise in the case
Said claim for damages included, aside from the of National Airports Corporation v. Teodoro, Sr. [91 Phil.
medical and hospital bills, consequential damages for 203 (1952)]. Petitioner contends that the said ruling
the expenses of two lawyers who had to go abroad in does not apply in this case because: First, in the
private respondent's stead to finalize certain business Teodoro case, the CAA was sued only in a substituted
transactions and for the publication of notices capacity, the National Airports Corporation being the
announcing the postponement of private respondent's original party. Second, in the Teodoro case, the cause
daughter's wedding which had to be cancelled because of action was contractual in nature while here, the
of his accident [Record on Appeal, p. 5]. cause of action is based on a quasi-delict. Third, there
is no specific provision in Republic Act No. 776, the law
governing the CAA, which would justify the conclusion
that petitioner was organized for business and not for
Judgment was rendered in private respondent's favor governmental purposes. [Rollo, pp. 94-97].
prompting petitioner to appeal to the Court of Appeals.
The latter affirmed the trial court's decision. Petitioner Such arguments are untenable.
then filed with the same court a Motion for,
Reconsideration but this was denied.
First, the Teodoro case, far from stressing the point that True, the law prevailing in 1952 when the Teodoro case
the CAA was only substituted for the National Airports was promulgated was Exec. Order 365 (Reorganizing
Corporation, in fact treated the CAA as the real party in the Civil Aeronautics Administration and Abolishing the
interest when it stated that: National Airports Corporation). Republic Act No. 776
(Civil Aeronautics Act of the Philippines), subsequently
xxx xxx xxx enacted on June 20, 1952, did not alter the character of
the CAA's objectives under Exec, Order 365. The
pertinent provisions cited in the Teodoro case,
... To all legal intents and practical purposes, the
particularly Secs. 3 and 4 of Exec. Order 365, which led
National Airports Corporation is dead and the Civil
the Court to consider the CAA in the category of a
Aeronautics Administration is its heir or legal
private entity were retained substantially in Republic
representative, acting by the law of its creation
Act 776, Sec. 32 (24) and (25). Said Act provides:
upon its own rights and in its own name. The better
practice there should have been to make the Civil
Aeronautics Administration the third party Sec. 32. Powers and Duties of the Administrator.
defendant instead of the National Airports Subject to the general control and supervision of
Corporation. [National Airports Corp. v. Teodoro, the Department Head, the Administrator shall have
supra, p. 208.] among others, the following powers and duties:
The Civil Aeronautics Administration comes under From the foregoing, it can be seen that the CAA is
the category of a private entity. Although not a tasked with private or non-governmental functions
body corporate it was created, like the National which operate to remove it from the purview of the rule
Airports Corporation, not to maintain a necessary on State immunity from suit. For the correct rule as set
function of government, but to run what is forth in the Tedoro case states:
essentially a business, even if revenues be not its
prime objective but rather the promotion of travel xxx xxx xxx
and the convenience of the travelling public. It is
engaged in an enterprise which, far from being the Not all government entities, whether corporate or
exclusive prerogative of state, may, more than the non-corporate, are immune from suits. Immunity
construction of public roads, be undertaken by functions suits is determined by the character of
private concerns. [National Airports Corp. v. the objects for which the entity was organized. The
Teodoro, supra, p. 207.] rule is thus stated in Corpus Juris:
This doctrine has been reaffirmed in the recent case The Court of Appeals further noted that:
of Malong v. Philippine National Railways [G.R. No. L-
49930, August 7, 1985, 138 SCRA 631, where it was The inclination itself is an architectural anomaly for
held that the Philippine National Railways, although as stated by the said witness, it is neither a ramp
owned and operated by the government, was not because a ramp is an inclined surface in such a
immune from suit as it does not exercise sovereign but way that it will prevent people or pedestrians from
purely proprietary and business functions. Accordingly, sliding. But if, it is a step then it will not serve its
as the CAA was created to undertake the management purpose, for pedestrian purposes. (tsn, p. 35, Id.)
of airport operations which primarily involve [rollo, p. 29.]
proprietary functions, it cannot avail of the immunity
from suit accorded to government agencies performing
strictly governmental functions.
Art. 2199. Except as provided by law or by Gross negligence which, according to the Court, is
stipulation, one are entitled to an adequate equivalent to the term "notorious negligence" and
compensation only for such pecuniary loss suffered consists in the failure to exercise even slight care
by him as he has duly proved. Such compensation [Caunan v. Compania General de Tabacos, 56 Phil. 542
is referred to as actual on compensatory damages (1932)] can be attributed to the CAA for its failure to
[New Civil Code]. remedy the dangerous condition of the questioned
elevation or to even post a warning sign directing the
attention of the viewers to the change in the elevation
of the floorings notwithstanding its knowledge of the
hazard posed by such elevation [Rollo, pp. 28-29;
Private respondent claims P15,589.55 representing
Record oil Appeal, p. 57]. The wanton disregard by the
medical and hospitalization bills. This Court finds the
CAA of the safety of the people using the viewing deck,
same to have been duly proven through the testimony
who are charged an admission fee, including the
of Dr. Ambrosio Tangco, the physician who attended to
petitioner who paid the entrance fees to get inside the
private respondent (Rollo, p. 26) and who Identified
vantage place [CA decision, p. 2; Rollo, p. 25] and are,
Exh. "H" which was his bill for professional services
therefore, entitled to expect a facility that is properly
[Rollo, p. 31].
and safely maintained justifies the award of
exemplary damages against the CAA, as a deterrent
and by way of example or correction for the public
good. The award of P40,000.00 by the trial court as
Concerning the P20,200.00 alleged to have been spent exemplary damages appropriately underscores the
for other expenses such as the transportation of the point that as an entity changed with providing service
two lawyers who had to represent private respondent to the public, the CAA. like all other entities serving the
abroad and the publication of the postponement public. has the obligation to provide the public with
notices of the wedding, the Court holds that the same reasonably safe service.
had also been duly proven. Private respondent had
adequately shown the existence of such losses and the
amount thereof in the testimonies before the trial court
[CA decision, p. 81. At any rate, the findings of the
Finally, the award of attorney's fees is also upheld
Court of Appeals with respect to this are findings of
considering that under Art. 2208 (1) of the Civil Code,
facts [One Heart Sporting Club, Inc. v. Court of Appeals,
the same may be awarded whenever exemplary
G.R. Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161
damages are awarded, as in this case, and,at any rate,
which, as had been held time and again, are, as a
under Art. 2208 (11), the Court has the discretion to
general rule, conclusive before this Court [Sese v.
grant the same when it is just and equitable.
Intermediate Appellate Court, G.R. No. 66186, July 31,
1987,152 SCRA 585].
After Gavino noticed that the anchor did not take hold,
[G.R. No. 130068. October 1, 1998]
he ordered the engines half-astern. Abellana, who was
then on the pier apron, noticed that the vessel was
FAR EASTERN SHIPPING COMPANY, petitioner,
approaching the pier fast.Kavankov likewise noticed
vs. COURT OF APPELAS and PHILIPPINE
that the anchor did not take hold. Gavino thereafter
PORTS AUTHORITY, respondents.
gave the full-astern code. Before the right anchor and
additional shackles could be dropped, the bow of the
[G.R. No. 130150. October 1, 1998]
vessel rammed into the apron of the pier causing
MANILA PILOTS ASSOCIATION, petitioner,
considerable damage to the pier. The vessel sustained
vs. PHILIPPINE PORTS AUTHORITY and
damage too. (Exhibit 7-Far Eastern Shipping). Kavankov
FAR EASTERN SHIPPING
filed his sea protest (Exhibit 1-Vessel). Gavino
COMPANY, respondents.
submitted his report to the Chief Pilot (Exhibit 1-Pilot)
who referred the report to the Philippine Ports Authority
DECISION
(Exhibit 2-Pilot) Abellana likewise submitted his report
REGALADO, J.: of the incident (Exhibit B).
These consolidated petitions for review
on certiorari seek in unison to annul and set aside the Per contract and supplemental contract of the
decision[1] of respondent Court of Appeals of November Philippine Ports Authority and the contractor for the
15, 1996 and its resolution[2]dated July 31, 1997 in CA- rehabilitation of the damaged pier, the same cost the
G.R. CV No. 24072, entitled Philippine Ports Authority, Philippine Ports Authority the amount of P1,126,132.25
Plaintiff-Appellee vs. Far Eastern Shipping Company, (Exhibits D and E).[3]
Senen C. Gavino and Manila Pilots
Association.Defendants-Appellants, which affirmed with
On January 10, 1983, the Philippine Ports Authority
modification the judgment of the trial court holding the
(PPA, for brevity), through the Solicitor General, filed
defendants-appellants therein solidarily liable for
before the Regional Trial Court of Manila, Branch 39, a
damages in favor of herein private respondent.
complaint for a sum of money against Far Eastern
There is no dispute about the facts as found by the Shipping Co., Capt. Senen C. Gavino and the Manila
appellate court, thus -- Pilots Association, docketed as Civil Case No. 83-14958,
[4]
praying that the defendants therein be held jointly
x x x On June 20, 1980, the M/V PAVLODAR, flying and severally liable to pay the plaintiff actual and
under the flagship of the USSR, owned and operated by exemplary damages plus costs of suit. In a decision
the Far Eastern Shipping Company (FESC for brevitys dated August 1, 1985, the trial court ordered the
sake), arrived at the Port of Manila from Vancouver, defendants therein jointly and severally to pay the PPA
British Columbia at about 7:00 oclock in the the amount of P1,053,300.00 representing actual
morning. The vessel was assigned Berth 4 of the Manila damages and the cost of suit.[5]
International Port, as its berthing space. Captain
Roberto Abellana was tasked by the Philippine Port The defendants appealed to the Court of Appeals
Authority to supervise the berthing of the and raised the following issues: (1) Is the pilot of a
vessel. Appellant Senen Gavino was assigned by the commercial vessel, under compulsory pilotage,
appellant Manila Pilots Association (MPA for brevitys solely liable for the damage caused by the vessel to
sake) to conduct docking maneuvers for the safe the pier, at the port of destination, for his
berthing of the vessel to Berth No. 4. negligence? And (2) Would the owner of the vessel be
liable likewise if the damage is caused by the
concurrent negligence of the master of vessel and the
Gavino boarded the vessel at the quarantine pilot under a compulsory pilotage?
anchorage and stationed himself in the bridge, with the
As stated at the outset, respondent appellate Respondent PPA, in its comment, predictably in full
court affirmed the findings of the court a quo except agreement with the ruling of respondent court on the
that it found no employer-employee relationship solidary liability of FESC, MPA and Capt. Gavino,
existing between herein private respondents Manila stresses the concurrent negligence of Capt. Gavino, the
Pilots Association (MPA, for short) and Capt. Gavino. harbor pilot, and Capt. Viktor Kabankov,* shipmaster of
[6]
This being so, it ruled instead that the liability of MPA MV Pavlodar, as the basis of their solidary liability for
is anchored, not on Article 2180 of the Civil Code, but damages sustained by PPA. It posits that the vessel
on the provisions of Customs Administrative Order No. was being piloted by Capt. Gavino with Capt. Kabankov
15-65,[7] and accordingly modified said decision of the beside him all the while on the bridge of the vessel, as
trial court by holding MPA, along with its co-defendants the former took over the helm of MV Pavlodar when it
therein, still solidarily liable to PPA but entitled MPA to rammed and damaged the apron of the pier of Berth
reimbursement from Capt. Gavino for such amount of No. 4 of the Manila International Port. Their concurrent
the adjudged pecuniary liability in excess of the negligence was the immediate and proximate cause of
amount equivalent to seventy-five percent (75%) of its the collision between the vessel and the pier - Capt.
prescribed reserve fund.[8] Gavino, for his negligence in the conduct of docking
maneuvers for the safe berthing of the vessel; and
Neither Far Eastern Shipping Co. (briefly, FESC) Capt. Kabankov, for failing to countermand the orders
nor MPA was happy with the decision of the Court of of the harbor pilot and to take over and steer the
Appeals and both of them elevated their respective vessel himself in the face of imminent danger, as well
plaints to us via separate petitions for review as for merely relying on Capt. Gavino during the
on certiorari. berthing procedure.[11]
In G.R. No. 130068, which was assigned to the On the other hand, in G.R. No. 130150, originally
Second Division of this Court, FESC imputed that the assigned to the Court's First Division and later
Court of Appeals seriously erred: transferred to the Third Division, MPA, now as
1. in not holding Senen C. Gavino and the Manila Pilots petitioner in this case, avers the respondent court's
Association as the parties solely responsible for the errors consisted in disregarding and misinterpreting
resulting damages sustained by the pier deliberately Customs Administrative Order No. 15-65 which limits
ignoring the established jurisprudence on the matter. the liability of MPA. Said pilots' association asseverates
that it should not be held solidarily liable with Capt.
Gavino who, as held by respondent court, is only a
2. in holding that the master had not exercised the member, not an employee, thereof. There being no
required diligence demanded from him by the employer-employee relationship, neither can MPA be
circumstances at the time the incident happened; held liable for any vicarious liability for the respective
exercise of profession by its members nor be
3. in affirming the amount of damages sustained by the considered a joint tortfeasor as to be held jointly and
respondent Philippine Ports Authority despite a strong severally liable.[12] It further argues that there was
and convincing evidence that the amount is clearly erroneous reliance on Customs Administrative Order
exorbitant and unreasonable; No. 15-65 and the constitution and by-laws of MPA,
instead of the provisions of the Civil Code on damages
4. in not awarding any amount of counterclaim prayed which, being a substantive law, is higher in category
for by the petitioner in its answer; and than the aforesaid constitution and by-laws of a
professional organization or an administrative order
which bears no provision classifying the nature of the
5. in not granting herein petitioner's claim against pilot liability of MPA for the negligence its member pilots. [13]
Senen C. Gavino and Manila Pilots' Association in the
event that it be held liable.[9] As for Capt. Gavino, counsel for MPA states that
the former had retired from active pilotage services
Petitioner asserts that since the MV PAVLODAR since July 28, 1994 and has ceased to be a member of
was under compulsory pilotage at the time of the petitioner pilots' association. He is not joined as a
incident, it was a compulsory pilot, Capt. Gavino, who petitioner in this case since his whereabouts are
was in command and had complete control in the unknown.[14]
navigation and docking of the vessel. It is the pilot who FESC's comment thereto relied on the competence
supersedes the master for the time being in the of the Court of Appeals in construing provisions of law
command and navigation of a ship and his orders must or administrative orders as basis for ascertaining the
be obeyed in all respects connected with her liability of MPA, and expressed full accord with the
navigation. Consequently, he was solely responsible for appellate court's holding of solidary liability among
the damage caused upon the pier apron, and not the itself, MPA and Capt. Gavino. It further avers that the
owners of the vessel. It claims that the master of the disputed provisions of Customs Administrative Order
boat did not commit any act of negligence when he No. 15-65 clearly established MPA's solidary liability. [15]
failed to countermand or overrule the orders of the
pilot because he did not see any justifiable reason to On the other hand, public respondent PPA, likewise
do so. In other words, the master cannot be faulted for through representations by the Solicitor General,
relying absolutely on the competence of the assumes the same supportive stance it took in G.R. No.
compulsory pilot. If the master does not observe that a 130068 in declaring its total accord with the ruling of
compulsory pilot is incompetent or physically the Court of Appeals that MPA is solidarily liable with
incapacitated, the master is justified in relying on the Capt. Gavino and FESC for damages, and in its
pilot.[10] application to the fullest extent of the provisions of
Customs Administrative Order No. 15-65 in relation to (30) days from August 28, 1997 or until September 27,
MPA's constitution and by-laws which spell out the 1997.[20] Said motion contained the following
conditions of and govern their respective certification against forum shopping[21] signed by Atty.
liabilities. These provisions are clear and ambiguous as Herbert A. Tria as affiant:
regards MPA's liability without need for interpretation
or construction. Although Customs Administrative CERTIFICATION
Order No. 15-65 is a mere regulation issued by an AGAINST FORUM SHOPPING
administrative agency pursuant to delegated I/we hereby certify that I/we have not commenced any
legislative authority to fix details to implement the law, other action or proceeding involving the same issues in
it is legally binding and has the same statutory force as the Supreme Court, the Court of Appeals, or any other
any valid statute.[16] tribunal or agency; that to the best of my own
Upon motion[17] by FESC dated April 24, 1998 in knowledge, no such action or proceeding is pending in
G.R. No. 130150, said case was consolidated with G.R. the Supreme Court, the Court of Appeals, or any other
No. 130068.[18] tribunal or agency; that if I/we should thereafter learn
that a similar action or proceeding has been filed or is
Prefatorily, on matters of compliance with pending before the Supreme Court, the Court of
procedural requirements, it must be mentioned that Appeals, or any other tribunal or agency, I/we
the conduct of the respective counsel for FESC and PPA undertake to report that fact within five (5) days
leaves much to be desired, to the displeasure and therefrom to this Honorable Court.
disappointment of this Court.
Section 2, Rule 42 of the 1997 Rules of Civil This motion having been granted, FESC subsequently
Procedure[19] incorporates the former Circular No. 28-91 filed its petition on September 26, 1997, this time
which provided for what has come to be known as the bearing a "verification and certification against forum-
certification against forum shopping as an additional shopping" executed by one Teodoro P. Lopez on
requisite for petitions filed with the Supreme Court and September 24, 1997,[22] to wit:
the Court of Appeals, aside from the other VERIFICATION AND CERTIFICATION
requirements contained in pertinent provisions of the AGAINST FORUM SHOPPING
Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving in compliance with Section 4(e), Rule 45 in relation to
the same issues in the Supreme Court, Court of Section 2, Rule 42 of the Revised Rules of Civil
Appeals or different divisions thereof or any other Procedure
tribunal or agency. I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
More particularly, the second paragraph of Section 1. That I am the Manager, Claims Department of Filsov
2, Rule 42 provides: Shipping Company, the local agent of petitioner in this
xxxxxxxxx case.
2. That I have caused the preparation of this Petition
The petitioner shall also submit together with the for Review on Certiorari.
petition a certification under oath that he has not 3. That I have read the same and the allegations
therefore commenced any other action involving the therein contained are true and correct based on the
same issues in the Supreme Court, the Court of records of this case.
Appeals or different divisions thereof, or any other 4. That I certify that petitioner has not commenced any
tribunal or agency; if there is such other action or other action or proceeding involving the same issues in
proceeding, he must state the status of the same; and the Supreme Court or Court of Appeals, or any other
if he should thereafter learn that a similar action or tribunal or agency, that to the best of my own
proceeding has been filed or is pending before the knowledge, no such action or proceeding is pending in
Supreme Court, the Court of Appeals or different the Supreme Court, the Court of Appeals or any other
divisions thereof, or any other tribunal or agency, he tribunal or agency, that I should thereafter learn that a
undertakes to promptly inform the aforesaid courts similar action or proceeding has been filed or is
and other tribunal or agency thereof within five (5) pending before the Supreme Court, the Court of
days therefrom. (Italics supplied.) Appeals, or any other tribunal or agency, I undertake to
report the fact within five (5) days therefrom to this
For petitions for review filed before the Supreme Court, Honorable Court. (Italics supplied for emphasis.)
Section 4(e), Rule 45 specifically requires that such Reviewing the records, we find that the petition
petition shall contain a sworn certification against filed by MPA in G.R. No. 130150 then pending with the
forum shopping as provided in the last paragraph of Third Division was duly filed on August 29, 1997 with a
Section 2, Rule 42. copy thereof furnished on the same date by registered
mail to counsel for FESC.[23] Counsel of record for MPA,
The records show that the law firm of Del Rosario Atty. Jesus P. Amparo, in his verification accompanying
and Del Rosario through its associate, Atty. Herbert A. said petition dutifully revealed to the Court that--
Tria, is the counsel of record for FESC in both G.R. No. xxxxxxxxx
130068 and G.R. No. 130150.
3. Petitioner has not commenced any other action or
G.R. No. 130068, which is assigned to the Court's proceeding involving the same issues in his Honorable
Second Division, commenced with the filing by FESC Court, the Court of Appeals or different Divisions
through counsel on August 22, 1997 of a verified thereof, or any other tribunal or agency, but to the
motion for extension of time to file its petition for thirty best of his knowledge, there is an action or proceeding
pending in this Honorable Court, entitled Far Eastern every effort and consider it his duty to assist in the
Shipping Co., Petitioner, vs. Philippine Ports Authority speedy and efficient administration of justice. [31] Being
and Court of Appeals with a Motion for Extension of an officer of the court, a lawyer has a responsibility in
time to file Petition for Review by Certiorari filed the proper administration of justice. Like the court
sometime on August 18, 1997. If undersigned counsel itself, he is an instrument to advance its ends -- the
will come to know of any other pending action or claim speedy, efficient, impartial, correct and inexpensive
filed or pending he undertakes to report such fact adjudication of cases and the prompt satisfaction of
within five (5) days to this Honorable Court. [24] (Italics final judgments. A lawyer should not only help attain
supplied.) these objectives but should likewise avoid any
unethical or improper practices that impede, obstruct
Inasmuch as MPA's petition in G.R. No. 130150 or prevent their realization, charged as he is with the
was posted by registered mail on August 29, 1997 and primary task of assisting in the speedy and efficient
taking judicial notice of the average period of time it administration of justice.[32]
takes local mail to reach its destination, by reasonable
estimation it would be fair to conclude that when FESC Sad to say, the members of said law firm sorely
filed its petition in G.R. No. 130068 on September 26, failed to observe their duties as responsible members
1997, it would already have received a copy of the of the Bar. Their actuations are indicative of their
former and would then have knowledge of the predisposition to take lightly the avowed duties of
pendency of the other petition initially filed with the officers of the Court to promote respect for law and for
First Division. It was therefore incumbent upon FESC to legal processes.[33] We cannot allow this state of things
inform the Court of that fact through its certification to pass judicial muster.
against forum shopping. For failure to make such
disclosure, it would appear that the aforequoted In view of the fact that at around the time these
certification accompanying the petition in G.R. No. petitions were commenced, the 1997 Rules of Civil
130068 is defective and could have been a ground for Procedure had just taken effect, the Court treated
dismissal thereof. infractions of the new Rules then with relative liberality
in evaluating full compliance therewith. Nevertheless, it
Even assuming that FESC has not yet received its would do well to remind all concerned that the penal
copy of MPA's petition at the time it filed its own provisions of Circular No. 28-91 which remain operative
petition and executed said certification, its signatory provides, inter alia:
did state "that if I should thereafter learn that a similar 3. Penalties.-
action or proceeding has been filed or is pending xxxxxxxxx
before the Supreme Court, the Court of Appeals or any
other tribunal or agency, I undertake to report the fact (c) The submission of a false certification under Par. 2
within five (5) days therefrom in this Honorable of the Circular shall likewise constitute contempt of
Court."[25] Scouring the records page by page in this court, without prejudice to the filing of criminal action
case, we find that no manifestation concordant with against the guilty party. The lawyer may also be
such undertaking was then or at any other time subjected to disciplinary proceedings.
thereafter ever filed by FESC nor was there any
attempt to bring such matter to the attention of the It must be stressed that the certification against
Court. Moreover, it cannot feign non-knowledge of the forum shopping ordained under the Rules is to be
existence of such other petition because FESC itself executed by the petitioner, and not by
filed the motion for consolidation in G.R. No. 130150 of counsel. Obviously it is the petitioner, and not always
these two cases on April 24, 1998. the counsel whose professional services have been
retained for a particular case, who is in the best
It is disturbing to note that counsel for FESC, the position to know whether he or it actually filed or
law firm of Del Rosario and Del Rosario, displays an caused the filing of a petition in that case. Hence, a
unprofessional tendency of taking the Rules for certification against forum shopping by counsel is a
granted, in this instance exemplified by its pro defective certification. It is clearly equivalent to non-
forma compliance therewith but apparently without full compliance with the requirement under Section 2, Rule
comprehension of and with less than faithful 42 in relation to Section 4, Rule 45, and constitutes a
commitment to its undertakings to this Court in the valid cause for dismissal of the petition.
interest of just, speedy and orderly administration of
court proceedings. Hence, the initial certification appended to the
motion for extension of time to file petition n G.R. No.
As between the lawyer and the courts, a lawyer 130068 executed in behalf of FESC by Atty. Tria is
owes candor, fairness and good faith to the court. [26] He procedurally deficient. But considering that it was a
is an officer of the court exercising a privilege which is superfluity at that stage of the proceeding, it being
indispensable in the administration of justice. unnecessary to file such a certification with a mere
[27]
Candidness, especially towards the courts, is motion for extension, we shall disregard such error.
essential for the expeditious administration of Besides, the certification subsequently executed by
justice. Courts are entitled to expect only complete Teodoro P. Lopez in behalf of FESC cures that defect to
honesty from lawyers appearing and pleading before a certain extent, despite the inaccuracies earlier
them.[28] Candor in all dealings is the very essence of pointed out. In the same vein, we shall consider the
honorable membership in the legal profession. [29] More verification signed in behalf of MPA by its counsel, Atty.
specifically, a lawyer is obliged to observe the rules of Amparo, in G.R. No. 130150 as substantial compliance
procedure and not to misuse them to defeat the ends inasmuch as it served the purpose of the Rules of
of justice.[30] It behooves a lawyer, therefore, to exert
informing the Court of the pendency of another action Besides, in G.R. 130068, it prefaces its discussions
or proceeding involving the same issues. thus --
Incidentally, the Manila Pilots' Association (MPA), one of
It bears stressing that procedural rules are the defendants-appellants in the case before the
instruments in the speedy and efficient administration respondent Court of Appeals, has taken a separate
of justice. They should be used to achieve such end appeal from the said decision to this Honorable Court,
and not to derail it.[34] which was docketed as G.R. No. 130150 and entitled
"Manila Pilots' Association, Petitioner, versus Philippine
Counsel for PPA did not make matters any Ports Authority and Far Eastern Shipping Co.,
better. Despite the fact that, save for the Solicitor Respondents.[41]
General at the time, the same legal team of the Office
of the Solicitor General (OSG, for short) composed of Similarly, in G.R. No. 130150, it states -
Assistant Solicitor General Roman G. Del Rosario and Incidentally, respondent Far Eastern Shipping Co.
Solicitor Luis F. Simon, with the addition of Assistant (FESC) had also taken an appeal from the said decision
Solicitor General Pio C. Guerrero very much later in the to this Honorable Court, docketed as G.R. No. 130068,
proceedings, represented PPA throughout the appellate entitled "Far Eastern Shipping Co. vs. Court of Appeals
proceedings in both G.R. No. 130068 and G.R. No. and Philippine Ports Authority."[42]
130150 and was presumably fully acquainted with the
facts and issues of the case, it took the OSG an We find here a lackadaisical attitude and
inordinately and almost unreasonably long period of complacency on the part of the OSG in the handling of
time to file its comment, thus unduly delaying the its cases and an almost reflexive propensity to move
resolution of these cases. It took several changes of for countless extensions, as if to test the patience of
leadership in the OSG -- from Silvestre H. Bello III to the Court, before favoring it with the timely submission
Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- of required pleadings.
before the comment in behalf of PPA was finally filed.
It must be emphasized that the Court can resolve
In G.R. No. 130068, it took eight (8) motions for cases only as fast as the respective parties in a case
extension of time totaling 210 days, a warning that no file the necessary pleadings. The OSG, be needlessly
further extensions shall be granted, and personal extending the pendency of these cases through its
service on the Solicitor General himself of the numerous motions for extension, came very close to
resolution requiring the filing of such comment before exhausting this Court's forbearance and has
the OSG indulged the Court with the long required regrettably fallen short of its duties as the People's
comment on July 10, 1998. [35] This, despite the fact that Tribune.
said office was required to file its comment way back
on November 12, 1997.[36] A closer scrutiny of the The OSG is reminded that just like other members
records likewise indicates that petitioner FESC was not of the Bar, the canons under the Code of Professional
even furnished a copy of said comment as required by Responsibility apply with equal force on lawyers in
Section 5, Rule 42. Instead, a copy thereof was government service in the discharge of their official
inadvertently furnished to MPA which, from the point of tasks.[43] These ethical duties are rendered even more
view of G.R. No. 130068, was a non-party. [37] The OSG exacting as to them because, as government counsel,
fared slightly better in G.R. No. 130150 in that it took they have the added duty to abide by the policy of the
only six (6) extensions, or a total of 180 days, before State to promote a high standard of ethics in public
the comment was finally filed.[38] And while it properly service.[44] Furthermore, it is incumbent upon the OSG,
furnished petitioner MPA with a copy of its comment, it as part of the government bureaucracy, to perform and
would have been more desirable and expedient in this discharge its duties with the highest degree of
case to have furnished its therein co-respondent FESC professionalism, intelligence and skill [45] and to extend
with a copy thereof, if only as a matter of professional prompt, courteous and adequate service to the public.
[46]
courtesy.[39]
Now, on the merits of the case. After a judicious
This undeniably dilatory disinclination of the OSG examination of the records of this case, the pleadings
to seasonably file required pleadings constitutes filed, and the evidence presented by the parties in the
deplorable disservice to the tax-paying public and can two petitions, we find no cogent reason to reverse and
only be categorized as censurable inefficiency on the set aside the questioned decision. While not entirely a
part of the government law office. This is most case of first impression, we shall discuss the
certainly professionally unbecoming of the OSG. issues seriatim and, correlatively by way of a judicial
once-over, inasmuch as the matters raised in both
Another thing that baffles the Court is why the petitions beg for validation and updating of well worn
OSG did not take the initiative of filing a motion for maritime jurisprudence. Thereby, we shall write finis to
consolidation in either G.R. No. 130068 or G.R. No. the endless finger-pointing in this shipping mishap
130150, considering its familiarity with the background which has been stretched beyond the limits of judicial
of the case and if only to make its job easier by having tolerance.
to prepare and file only one comment. It could not have
been unaware of the pendency of one or the other The Port of Manila is within the Manila Pilotage
petition because, being counsel for respondent in both District which is under compulsory pilotage pursuant to
cases, petitioner is required to furnish it with a copy of Section 8, Article III of Philippine Ports Authority
the petition under pain of dismissal of the petition for Administrative Order No. 03-85,[47] which provides that:
failure otherwise.[40]
SEC. 8. Compulsory Pilotage Service.- For entering a I. G.R. No. 130068
harbor and anchoring thereat, or passing through rivers
or straits within a pilotage district, as well as docking Petitioner FESC faults the respondent court with
and undocking at any pier/wharf, or shifting from one serious error in not holding MPA and Capt. Gavino
berth or another, every vessel engaged in coastwise solely responsible for the damages caused to the
and foreign trade shall be under compulsory pilotage. x pier. It avers that since the vessel was under
xx compulsory pilotage at the time with Capt. Gavino in
command and having exclusive control of the vessel
during the docking maneuvers, then the latter should
In case of compulsory pilotage, the respective be responsible for damages caused to the pier. [48] It
duties and responsibilities of the compulsory pilot and likewise holds the appellate court in error for holding
the master have been specified by the same regulation that the master of the ship, Capt. Kabankov, did not
in this wise: exercise the required diligence demanded by the
SEC. 11. Control of vessels and liability for damage. circumstances.[49]
- On compulsory pilotage grounds, the Harbor Pilot, We start our discussion of the successive issues
providing the service to a vessel shall be responsible bearing in mind the evidentiary rule in American
for the damage caused to a vessel or to life and jurisprudence that there is a presumption of fault
property at ports due to his negligence or fault. He can against a moving vessel that strikes a stationary object
only be absolved from liability if the accident is caused such as a dock or navigational aid. In admiralty, this
by force majeure or natural calamities provided he has presumption does more than merely require the ship to
exercised prudence and extra diligence to prevent or go forward and produce some evidence on the
minimize damage. presumptive matter. The moving vessel must show that
it was without fault or that the collision was occasioned
The Master shall retain overall command of the vessel by the fault of the stationary object or was the result of
even on pilotage grounds whereby he can inevitable accident. It has been held that such vessel
countermand or overrule the order or command of the must exhaust every reasonable possibility which the
Harbor Pilot on board. In such event, any damage circumstances admit and show that in each, they did
caused to a vessel or to life and property at ports by all that reasonable care required. [50] In the absence of
reason of the fault or negligence of the Master shall be sufficient proof in rebuttal, the presumption of fault
the responsibility and liability of the registered owner attaches to a moving vessel which collides with a fixed
of the vessel concerned without prejudice to recourse object and makes a prima facie case of fault against
against said Master. the vessel.[51] Logic and experience support this
presumption:
Such liability of the owner or Master of the vessel or its The common sense behind the rule makes the burden
pilots shall be determined by competent authority in a heavy one. Such accidents simply do not occur in the
appropriate proceedings in the light of the facts and ordinary course of things unless the vessel has been
circumstances of each particular case. mismanaged in some way. It is not sufficient for the
respondent to produce witnesses who testify that as
SEC. 32. Duties and responsibilities of the Pilot or soon as the danger became apparent
Pilots' Association. - The duties and responsibilities of everything possible was done to avoid an accident. The
the Harbor Pilot shall be as follows: question remains, How then did the collision
occur? The answer must be either that, in spite of the
xxxxxxxxx testimony of the witnesses, what was done was too
little or too late or, if not, then the vessel was at fault
f) a pilot shall be held responsible for the direction of a for being in a position in which an unavoidable collision
vessel from the time he assumes his work as a pilot would occur.[52]
thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at The task, therefore, in these cases is to pinpoint who
the moment the Master neglects or refuses to carry out was negligent - the master of the ship, the harbor pilot
his order. or both.
Customs Administrative Order No. 15-65 issued A pilot, in maritime law, is a person duly qualified,
twenty years earlier likewise provided in Chapter I and licensed, to conduct a vessel into or out of ports,
thereof for the responsibilities of pilots: or in certain waters. In a broad sense, the term "pilot"
includes both (1) those whose duty it is to guide
Par. XXXIX. - A Pilot shall be held responsible for the vessels into or out of ports, or in particular waters and
direction of a vessel from the time he assumes control (2) those entrusted with the navigation of vessels on
thereof until he leaves it anchored free from shoal; the high seas.[53] However, the term "pilot" is more
Provided, That his responsibility shall cease at the generally understood as a person taken on board at a
moment the master neglects or refuses to carry out his particular place for the purpose of conducting a ship
instructions. through a river, road or channel, or from a port.[54]
Under English and American authorities, generally
xxxxxxxxx speaking, the pilot supersedes the master for the time
Par. XLIV. - Pilots shall properly and safely secure or being in the command and navigation of the ship, and
anchor vessels under their control when requested to his orders must be obeyed in all matters connected
do so by the master of such vessels. with her navigation. He becomes the master pro hac
vice and should give all directions as to speed, course, towns, its landings, its houses and trees, are all
stopping and reversing, anchoring, towing and the landmarks by which he steers his vessel. The compass
like. And when a licensed pilot is employed in a place is of little use to him. He must know where the
where pilotage is compulsory, it is his duty to insist on navigable channel is, in its relation to all these external
having effective control of the vessel, or to decline to objects, especially in the night. He must also be
act as pilot. Under certain systems of foreign law, the familiar with all dangers that are permanently located
pilot does not take entire charge of the vessel, but is in the course of the river, as sand-bars, snags, sunken
deemed merely the adviser of the master, who retains rocks or trees or abandoned vessels or barges. All this
command and control of the navigation even on he must know and remember and avoid. To do this, he
localities where pilotage is compulsory.[55] must be constantly informed of the changes in the
current of the river, of the sand-bars newly made, of
It is quite common for states and localities to logs or snags, or other objects newly presented,
provide for compulsory pilotage, and safety laws have against which his vessel might be injured.
been enacted requiring vessels approaching their
ports, with certain exceptions, to take on board pilots
duly licensed under local law. The purpose of these xxxxxxxxx
laws is to create a body of seamen thoroughly It may be said that this is exacting a very high
acquainted with the harbor, to pilot vessels seeking to order of ability in a pilot. But when we consider the
enter or depart, and thus protect life and property from value of the lives and property committed to their
the dangers of navigation.[56] control, for in this they are absolute masters, the high
In line with such established doctrines, Chapter II compensation they receive, the care which Congress
of Customs Administrative Order No. 15-65 prescribes has taken to secure by rigid and frequent examinations
the rules of compulsory pilotage in the covered and renewal of licenses, this very class of skill, we do
pilotage districts, among which is the Manila Pilotage not think we fix the standard too high.
District, viz. --
Tested thereby, we affirm respondent court's
PARAGRAPH I. - Pilotage for entering a harbor and finding that Capt. Gavino failed to measure up to such
anchoring thereat, as well as docking and undocking in strict standard of care and diligence required of pilots
any pier or shifting from one berth to another shall be in the performance of their duties. Witness this
compulsory, except Government vessels and vessels of testimony of Capt. Gavino:
foreign governments entitled to courtesy, and other
vessels engaged solely in river or harbor work, or in a Court:
daily ferry service between ports which shall be
exempt from compulsory pilotage provisions of these You have testified before that the reason why
regulations: provided, however, that compulsory the vessel bumped the pier was because the
pilotage shall not apply in pilotage districts whose anchor was not released immediately or as
optional pilotage is allowed under these regulations. soon as you have given the order. Do you
remember having stated that?
Pursuant thereto, Capt. Gavino was assigned to A Yes, your Honor.
pilot MV Pavlodar into Berth 4 of the Manila
International Port. Upon assuming such office as Q And you gave this order to the captain of the
compulsory pilot, Capt. Gavino is held to the vessel?
universally accepted high standards of care and A Yes, your Honor.
diligence required of a pilot, whereby he assumes to
have skill and knowledge in respect to navigation in the Q By that testimony, you are leading the Court to
particular waters over which his license extends understand that is that anchor was released
superior to and more to be trusted than that of the immediately at the time you gave the order,
master.[57] A pilot should have a thorough knowledge of the incident would not have happened. Is that
general and local regulations and physical conditions correct?
affecting the vessel in his charge and the waters for
which he is licensed, such as a particular harbor or A Yes, sir, but actually it was only a presumption on
river. He is not held to the highest possible degree of my part because there was a commotion
skill and care, but must have and exercise the ordinary between the officers who are in charge of the
skill and care demanded by the circumstances, and dropping of the anchor and the captain. I could
usually shown by an expert in his profession. Under not understand their language, it was in
extraordinary circumstances, a pilot must exercise Russian, so I presumed the anchor was not
extraordinary care.[58] dropped on time.
In Atlee vs. The Northwestern Union Packet Q So, you are not sure whether it was really
Company,[59] Mr. Justice Miller spelled out in great detail dropped on time or not?
the duties of a pilot:
A I am not sure, your Honor.
x x x (T)he pilot of a river steamer, like the harbor
xxxxxxxxx
pilot, is selected for his personal knowledge of the
topography through which he steers his vessel. In the Q You are not even sure what could have caused the
long course of a thousand miles in one of these rivers, incident. What factor could have caused the
he must be familiar with the appearance of the shore incident?
on each side of the river as he goes along. Its banks,
A Well, in this case now, because either the anchor x x x As can be gleaned from the logbook, Gavino
was not dropped on time or the anchor did not ordered the left anchor and two (2) shackles dropped
hold, that was the cause of the incident, your at 8:30 o'clock in the morning. He ordered the engines
Honor.[60] of the vessel stopped at 8:31 o'clock. By then, Gavino
must have realized that the anchor did not hit a hard
It is disconcertingly riddled with too much object and was not clawed so as to reduce the
incertitude and manifests a seeming indifference for momentum of the vessel. In point of fact, the vessel
the possibly injurious consequences his commands as continued travelling towards the pier at the same
pilot may have. Prudence required that he, as pilot, speed. Gavino failed to react. At 8:32 o'clock, the two
should have made sure that his directions were (2) tugboats began to push the stern part of the vessel
promptly and strictly followed. As correctly noted by from the port side but the momentum of the vessel
the trial court - was not contained. Still, Gavino did not react. He did
Moreover, assuming that he did indeed give the not even order the other anchor and two (2) more
command to drop the anchor on time, as pilot he shackles dropped to arrest the momentum of the
should have seen to it that the order was carried out, vessel. Neither did he order full-astern. It was only at
and he could have done this in a number of ways, one 8:34 o'clock, or four (4) minutes, after the anchor was
of which was to inspect the bow of the vessel where dropped that Gavino reacted. But his reaction was even
the anchor mechanism was installed. Of course, (haphazard) because instead of arresting fully the
Captain Gavino makes reference to a commotion momentum of the vessel with the help of the tugboats,
among the crew members which supposedly caused Gavino ordered merely "half-astern". It took Gavino
the delay in the execution of the command. This another minute to order a "full-astern". By then, it was
account was reflected in the pilot's report prepared too late.The vessel's momentum could no longer be
four hours later, but Capt. Kavankov, while not arrested and, barely a minute thereafter, the bow of
admitting whether or not such a commotion occurred, the vessel hit the apron of the pier. Patently, Gavino
maintained that the command to drop anchor was miscalculated. He failed to react and undertake
followed "immediately and precisely." Hence, the Court adequate measures to arrest fully the momentum of
cannot give much weight or consideration to this the vessel after the anchor failed to claw to the
portion of Gavino's testimony."[61] seabed. When he reacted, the same was even
(haphazard). Gavino failed to reckon the bulk of the
vessel, its size and its cargo. He erroneously believed
An act may be negligent if it is done without the that only one (1) anchor would suffice and even when
competence that a reasonable person in the position of the anchor failed to claw into the seabed or against a
the actor would recognize as necessary to prevent it hard object in the seabed, Gavino failed to order the
from creating an unreasonable risk of harm to another. other anchor dropped immediately. His claim that the
[62]
Those who undertake any work calling for special anchor was dropped when the vessel was only 1,000
skills are required not only to exercise reasonable care feet from the pier is but a belated attempt to extricate
in what they do but also possess a standard minimum himself from the quagmire of his own insouciance and
of special knowledge and ability.[63] negligence. In sum, then, Appellants' claim that the
Every man who offers his services to another, and incident was caused by "force majeure" is barren of
is employed, assumes to exercise in the employment factual basis.
such skills he possesses, with a reasonable degree of
diligence. In all these employments where peculiar skill xxxxxxxxx
is requisite, if one offers his services he is understood
as holding himself out to the public as possessing the The harbor pilots are especially trained for this
degree of skill commonly possessed by others in the job. In the Philippines, one may not be a harbor pilot
same employment, and if his pretensions are unless he passed the required examination and training
unfounded he commits a species of fraud on every conducted then by the Bureau of Custom, under
man who employs him in reliance on his public Customs Administrative Order No. 15-65, now under
profession.[64] the Philippine Ports Authority under PPA Administrative
Order 63-85. Paragraph XXXIX of the Customs
Furthermore, there is an obligation on all persons Administrative Order No. 15-65 provides that "the pilot
to take the care which, under ordinary circumstances of shall be held responsible for the direction of the vessel
the case, a reasonable and prudent man would take, from the time he assumes control thereof, until he
and the omission of that care constitutes negligence. leaves it anchored free from shoal: Provided, that his
[65]
Generally, the degree of care required is graduated responsibility shall cease at the moment the master
according to the danger a person or property attendant neglects or refuse(s) to carry out his instructions." The
upon the activity which the actor pursues or the overall direction regarding the procedure for docking
instrumentality which he uses. The greater the danger and undocking the vessel emanates from the harbor
the greater the degree of care required. What is pilot. In the present recourse, Gavino failed to live up
ordinary under extraordinary of conditions is dictated to his responsibilities and exercise reasonable care or
by those conditions; extraordinary risk demands that degree of care required by the exigencies of the
extraordinary care. Similarly, the more imminent the occasion. Failure on his part to exercise the degree of
danger, the higher the degree of care.[66] care demanded by the circumstances is negligence
(Reese versus Philadelphia & RR Co. 239 US 463, 60 L
We give our imprimatur to the bases for the ed. 384, 57 Am Jur. 2d 12age 418).[67]
conclusion of the Court of Appeals that Capt. Gavino
was indeed negligent in the performance of his duties:
This affirms the findings of the trial court
xxxxxxxxx regarding Capt. Gavino's negligence:
This discussion should not however, divert the xxxxxxxxx
court from the fact that negligence in manuevering the
vessel must be attributed to Capt. Senen Gavino. He Atty. Del Rosario (to the witness)
was an experienced pilot and by this time should have Q Mr. Witness, what happened, if any, or was there
long familiarized himself with the depth of the port and anything unusual that happened during the
the distance he could keep between the vessel and docking?
port in order to berth safely.[68]
A Yes sir, our ship touched the pier and the pier was
The negligence on the part of Capt. Gavino is damaged.
evident; but Capt. Kabankov is no less responsible for Court (to the witness)
the allision. His unconcerned lethargy as master of the
ship in the face of troublous exigence constitutes Q When you said touched the pier, are you leading
negligence. the court to understand that your ship bumped
the pier?
While it is indubitable that in exercising his
functions a pilot-is in sole command of the ship[69] and A I believe that my vessel only touched the pier but
supersedes the master for the time being in the the impact was very weak.
command and navigation of a ship and that he
becomes master pro hac vice of a vessel piloted by Q Do you know whether the pier was damaged as a
him,[70] there is overwhelming authority to the effect result of that slight or weak impact?
that the master does not surrender his vessel to the
A Yes sir, after the pier was damaged.
pilot and the pilot is not the master. The master is still
in command of the vessel notwithstanding the xxxxxxxxx
presence of a pilot. There are occasions when the
master may and should interfere and even displace the Q Being most concerned with the safety of your
pilot, as when the pilot is obviously incompetent or vessel, in the maneuvering of your vessel, to
intoxicated and the circumstances may require the the port, did you observe anything irregular in
master to displace a compulsory pilot because of the maneuvering by Capt. Gavino at the time
incompetency or physical incapacity. If, however, the he was trying to cause the vessel to be docked
master does not observe that a compulsory pilot is at the pier?
incompetent or physically incapacitated, the master is
A You mean the action of Capt. Gavino or his
justified in relying on the pilot, but not blindly.[71]
condition?
The master is not wholly absolved from his duties
Court:
while a pilot is on board his vessel, and may advise
with or offer suggestions to him. He is still in command Q Not the actuation that conform to the safety
of the vessel, except so far as her navigation is maneuver of the ship to the harbor?
concerned, and must cause the ordinary work of the
vessel to be properly carried on and the usual A No sir, it was a usual docking.
precaution taken. Thus, in particular, he is bound to
see that there is sufficient watch on deck, and that the Q By that statement of yours, you are leading the
men are attentive to their duties, also that engines are court to understand that there was nothing
stopped, towlines cast off, and the anchors clear and irregular in the docking of the ship?
ready to go at the pilot's order.[72] A Yes sir, during the initial period, of the docking,
A perusal of Capt. Kabankov's testimony makes it there was nothing unusual that happened.
apparent that he was remiss in the discharge of his Q What about in the last portion of the docking of
duties as master of the ship, leaving the entire docking the ship, was there anything unusual or
procedure up to the pilot, instead of maintaining abnormal that happened?
watchful vigilance over this risky maneuver:
A None Your Honor, I believe that Capt. Gavino
Q Will you please tell us whether you have the right thought that the anchor could keep or hold the
to intervene in docking of your ship in the vessel.
harbor?
Q You want us to understand, Mr. Witness, that the
A No sir, I have no right to intervene in time of dropping of the anchor of the vessel was not
docking, only in case there is imminent danger timely?
to the vessel and to the pier.
A I don't know the depth of this port but I think, if
Q Did you ever intervene during the time that your the anchor was dropped earlier and with more
ship was being docked by Capt. Gavino? shackles, there could not have been an
A No sir, I did not intervene at the time when the incident.
pilot was docking my ship. Q So you could not precisely tell the court that the
Q Up to the time it was actually docked at the pier, dropping of the anchor was timely because you
is that correct'? are not well aware of the seabed, is that
correct?
A No sir, I did not intervene up to the very moment
when the vessel was docked. A Yes sir, that, is right.
xxxxxxxxx A That is right.
Q Alright, Capt. Kavankov, did you come to know Q Now, you said that when the command to lower
later whether the anchor held its ground so the anchor was given, it was obeyed, is that
much so that the vessel could not travel? right?
A It is difficult for me to say definitely. I believe that A This command was executed by the third mate
the anchor did not hold the ship. and boatswain.
Q You mean you don't know whether the anchor Court (to the witness)
blades stuck to the ground to stop the ship
from further moving? Q Mr. Witness, earlier in today's hearing, you said
that you did not intervene with the duties of
A Yes sir, it is possible. the pilot and that, in your opinion, you can only
intervene if the ship is placed in imminent
Q What is possible? danger, is that correct?
A I think, the 2 shackles were not enough to hold A That is right, I did say that.
the vessel.
Q In your observation before the incident actually
Q Did you know that the 2 shackles were dropped? happened, did you observe whether or not the
A Yes sir, I knew that. ship, before the actual incident, the ship was
placed in imminent danger?.
Q If you knew that the shackles were not enough to
hold the ship, did you not make any protest to A No sir, I did not observe.
the pilot? Q By that answer, are you leading the court to
A No sir, after the incident, that was my understand that because you did not intervene
assumption. and because you believed that it was your duty
to intervene when the vessel is placed in
Q Did you come to know later whether that imminent danger to which you did not observe
presumption is correct? any imminent danger thereof, you have not
intervened in any manner to the command of
A I still don't know the ground in the harbor or the the pilot?
depths.
A That is right, sir.
Q So from the beginning, you were not competent
whether the 2 shackles were also dropped to xxxxxxxxx
hold the ship?
Q Assuming that you disagreed with the pilot
A No sir, at the beginning, I did not doubt it because regarding the step being taken by the pilot in
I believe Capt. Gavino to be an experienced maneuvering the vessel. whose command will
pilot and he should be more aware as to the prevail, in case of imminent danger to the
depths of the harbor and the ground and I was vessel?
confident in his actions.
A I did not consider the situation as having an
xxxxxxxxx imminent danger. I believed that the vessel will
dock alongside the pier.
Solicitor Abad (to the witness)
Q You want us to understand that you did not see an
Q Now, you were standing with the pilot on the imminent danger to your ship, is that what you
bridge of the vessel before the incident mean?
happened, were you not?
A Yes sir, up to the very last moment, I believed that
A Yes sir, all the time, I was standing with the pilot. there was no imminent danger.
Q And so whatever the pilot saw, you could also see Q Because of that, did you ever intervene in the
from that point of view? command of the pilot?
A That is right. A Yes sir, I did not intervene because I believed that
the command of the pilot to be correct.
Q Whatever the pilot can read from the panel of the
bridge, you also could read, is that correct? Solicitor Abad (to the witness)
A What is the meaning of panel'? Q As a captain of M/V Pavlodar, you consider
docking maneuvers a serious matter, is it not?
Q All indications necessary for men on the bridge to
be informed of the movements of the ship? A Yes sir, that is right.
A That is right. Q Since it affects not only the safety of the port or
pier, but also the safety of the vessel and the
Q And whatever sound the captain... Capt. Gavino
cargo, is it not?
would hear from the bridge, you could also
hear? A That is right.
Q So that, I assume that you were watching Capt. Q And that is the same alertness when the anchor
Gavino very closely at the time he was making did not hold onto the ground, is that correct?
his commands?
A Yes sir, me and Capt. Gavino (thought) that the
A I was close to him, I was hearing his command anchor will hold the ground.
and being executed.
Q Since, as you said that you agreed all the while
Q And that you were also alert for any possible with the orders of Capt. Gavino, you also
mistakes he might commit in the maneuvering therefore agreed with him in his failure to take
of the vessel? necessary precaution against the eventuality
that the anchor will not hold as expected?
A Yes sir, that is right.
Atty. Del Rosario:
Q But at no time during the maneuver did you issue
order contrary to the orders Capt. Gavino May I ask that the question ...
made?
Solicitor Abad:
A No sir.
Never mind, I will reform the question.
Q So that you were in full accord with all of
Capt. Gavino's orders? xxxxxxxxx
Q Because, otherwise, you would have issued order Q Is it not a fact that the vessel bumped the pier?
that would supersede his own order? A That is right, it bumped the pier.
A In that case, I should take him away from his Q For the main reason that the anchor of the vessel
command or remove the command from him. did not hold the ground as expected?
Court (to the witness) A Yes sir, that is my opinion.[73]
Q You were in full accord with the steps being taken Further, on redirect examination, Capt. Kabankov
by Capt. Gavino because you relied on his fortified his apathetic assessment of the situation:
knowledge, on his familiarity of the seabed and
shoals and other surroundings or conditions Q Now, after the anchor was dropped, was there
under the sea, is that correct? any point in time that you felt that the vessel
was in imminent danger.
A Yes sir, that is right.
A No, at that time, the vessel was not in imminent
xxxxxxxxx danger, sir."[74]
Solicitor Abad (to the witness) This cavalier appraisal of the event by
Q And so after the anchors were ordered dropped Capt. Kabankov is disturbingly antipodal to
and they did not take hold of the seabed, you Capt. Gavino's anxious assessment of the situation:
were alerted that there was danger already on Q When a pilot is on board a vessel, it is the pilot's
hand? command which should be followed-at that
A No sir, there was no imminent danger to the moment until the vessel is, or goes to port or
vessel. reaches port?
Q Do you mean to tell us that even if the anchor A Yes, your Honor, but it does not take away from
was supposed to take hold of the bottom and it the Captain his prerogative to countermand the
did not, there was no danger to the ship? pilot.
In fact, the Master of the vessel testified here It is apparent that Gavino was negligent but Far
that he was all along in conformity with the Eastern's employee Capt. Kavankov was no less
orders you gave to him, and, as matter of fact, responsible for as master of the vessel he stood by the
as he said, he obeyed all your orders. Can you pilot during the man(eu)vering procedures and was
tell, if in the course of giving such normal privy to every move the latter made, as well as the
orders for the saf(e) docking of the MV vessel's response to each of the commands. His choice
Pavlodar, do you remember of any instance to rely blindly upon the pilot's skills, to the point that
that the Master of the vessel did not obey your despite being appraised of a notice of alert he
command for the safety docking of the MV continued to relinquish control of the vessel to Gavino,
Pavlodar? shows indubitably that he was not performing his
duties with the diligence required of him and therefore
Atty. del Rosario: may be charged with negligence along with defendant
Gavino.[76]
Already answered, he already said yes sir.
Court: As correctly affirmed by the Court of Appeals -
Yes, he has just answered yes sir to the Court We are in full accord with the findings and
that there was no disagreement insofar as the disquisitions of the Court a quo.
bringing of the vessel safely to the port.
In the present recourse, Captain Viktor Kavankov
Atty. Catris:
had been a mariner for thirty-two years before the
But in this instance of docking of the MV incident. When Gavino was (in) the command of the
Pavlodar, do you remember of a time during vessel, Kavankov was beside Gavino, relaying the
the course of the docking that the MV Pavlodar commands or orders of Gavino to the crewmembers-
was in imminent danger of bumping the pier? officers of the vessel concerned. He was thus fully
aware of the docking maneuvers and procedure Gavino
A When we were about more than one thousand undertook to dock the vessel. Irrefragably, Kavankov
meters from the pier. I think, the anchor was was fully aware of the bulk and size of the vessel and
not holding, so I immediately ordered to push its cargo as well as the weight of the vessel. Kavankov
the bow at a fourth quarter, at the back of the categorically admitted that, when the anchor and two
vessel in order to swing the bow away from the (2) shackles were dropped to the sea floor, the claws of
pier and at the same time, I ordered for a full the anchor did not hitch on to any hard object in the
astern of the engine."[75] seabed. The momentum of the vessel was not
arrested. The use of the two (2) tugboats was
These conflicting reactions can only imply, at the very
insufficient. The momentum of the vessel, although a
least, unmindful disregard or, worse, neglectful
little bit arrested, continued (sic) the vessel going
relinquishment of duty by the shipmaster, tantamount
straightforward with its bow towards the port (Exhibit
to negligence.
"A-1"). There was thus a need for the vessel to move
The findings of the trial court on this aspect is "full-astern" and to drop the other anchor with another
noteworthy: shackle or two '(2), for the vessel to avoid hitting the
pier.Kavankov refused to act even as Gavino failed to
For, while the pilot Gavino may indeed have been act. Even as Gavino gave mere "half-astern" order,
charged with the task of docking the vessel in the Kavankov supinely stood by. The vessel was already
berthing space, it is undisputed that the master of the about twenty (20) meters away from the pier when
vessel had the corresponding duty to countermand any Gavino gave the 'full-astern" order. Even then,
of the orders made by the pilot, aid even maneuver the Kavankov did nothing to prevent the vessel from hitting
vessel himself, in case of imminent danger to the the pier simply because he relied on the competence
vessel and the port. and plan of Gavino. While the "full-astern" maneuver
momentarily arrested the momentum of the vessel, it
In fact, in his testimony, Capt. Kavankov admitted was, by then, too late. All along, Kavankov stood
that all throughout the man(eu)vering procedures he supinely beside Gavino, doing nothing but relay the
did not notice anything was going wrong, and even commands of Gavino. Inscrutably, then, Kavankov was
observed that the order given to drop the anchor, was negligent.
done at the proper time. He even ventured the opinion
that the accident occurred because the anchor failed to xxxxxxxxx
take hold but that this did not alarm him because there
was still time to drop a second anchor. The stark incompetence of Kavankov is competent
evidence to prove the unseaworthiness of the vessel. It
has been held that the incompetence of the navigator, pilot's intoxication or manifest incapacity, in cases of
the master of the vessel or its crew makes the vessel danger which he does not foresee, and in all cases of
unseaworthy (Tug Ocean Prince versus United States of great necessity . The master has the same power to
America, 584 F. 2nd, page 1151). Hence, the Appellant displace the pilot that he has to remove any
FESC is likewise liable for the damage sustained by the subordinate officer of the vessel. He may exercise it, or
Appellee."[77] not, according to his discretion. There was evidence to
support findings that plaintiff's injury was due to the
We find strong and well-reasoned support in time- negligent operation of the Atenas, and that the master
tested American maritime jurisprudence, on which of that vessel was negligent in failing to take action to
much of our laws and jurisprudence on the matter are avoid endangering a vessel situated as the City of
based, for the conclusions of the Court of Appeals Canton was and persons or property thereon.
adjudging both Capt. Gavino and Capt. Kabankov
negligent. A phase of the evidence furnished support for the
inferences x x x that he negligently failed to suggest to
As early as 1869, the U.S. Supreme Court the pilot the danger which was disclosed, and means of
declared, through Mr. Justice Swayne, in The Steamship avoiding such danger; and that the master's
China vs. Walsh,[78] that it is the duty of the master to negligence in failing to give timely admonition to the
interfere in cases of the pilot's intoxication or manifest pilot proximately contributed to the injury complained
incapacity, in cases of danger which he does not of. We are of opinion that the evidence mentioned
foresee, and in all cases of great necessity. The master tended to prove conduct of the pilot, known to the
has the same power to displace the pilot that he has to master, giving rise to a case of danger or great
remove any subordinate officer of the vessel, at his necessity, calling for the intervention of the master. A
discretion. master of a vessel is not Without fault in acquiescing in
In 1895, the U.S. Supreme Court, this time conduct of a pilot which involves apparent and
through Mr. Justice Brown, emphatically ruled that: avoidable danger, whether such danger is to the vessel
upon which the pilot is, or to another vessel, or persons
Nor are we satisfied with the conduct of the or property thereon or on shore. (Italics ours.)
master in leaving the pilot in sole charge of the
vessel. While the pilot doubtless supersedes the Still in another case involving a nearly identical setting,
master for the time being in the command and the captain of a vessel alongside the compulsory pilot
navigation of the ship, and his orders must be obeyed was deemed to be negligent, since, in the words of the
in all matters connected with her navigation, the court, "he was in a position to exercise his superior
master is not wholly absolved from his duties while the authority if he had deemed the speed excessive on the
pilot is on board, and may advise with him, and even occasion in question. I think it was clearly negligent of
displace him in case he is intoxicated or manifestly him not to have recognized the danger to any craft
incompetent. He is still in command of the vessel, moored at Gravell Dock and that he should have
except so far as her navigation is concerned, and directed the pilot to reduce his speed as required by
bound to see that there is a sufficient watch on deck, the local governmental regulations. His failure
and that the men are attentive to their duties. amounted to negligence and renders the respondent
liable."[81] (Italics supplied.) Though a compulsory pilot
xxx (N)otwithstanding the pilot has charge, it is might be regarded as an independent contractor, he is
the duty of the master to prevent accident, and not to at all times subject to the ultimate control of the ship's
abandon the vessel entirely to the pilot; but that there master.[82]
are certain duties he has to discharge (notwithstanding
there is a pilot on board) for the benefit of the owners. In sum, where a compulsory pilot is in charge of a
x x x that in well conducted ships the master does ship, the master being required to permit him to
not regard the presence of a duly licensed pilot in navigate it, if the master observes that the pilot is
compulsory pilot waters as freeing him from every incompetent or physically incapable, then it is the duty
obligation to attend to the safety of the vessel; but of the master to refuse to permit the pilot to act. But if
that, while the master sees that his officers and crew no such reasons are present, then the master is
duly attend to the pilot's orders, he himself is bound to justified in relying upon the pilot, but not blindly. Under
keep a vigilant eye on the navigation of the vessel, the circumstances of this case, if a situation arose
and, when exceptional circumstances exist, not only to where the master, exercising that reasonable vigilance
urge upon the pilot to use every precaution, but to which the master of a ship should exercise, observed,
insist upon, such being taken."[79] (Italics for emphasis.) or should have observed, that the pilot was so
navigating the vessel that she was going, or was likely
to go, into danger, and there was in the exercise of
In Jure vs. United Fruit Co.,[80] which, like the reasonable care and vigilance an opportunity for the
present petitions, involved compulsory pilotage, with a master to intervene so as to save the ship from danger,
similar scenario where at and prior to the time of the master should have acted accordingly. [83] The
injury, the vessel was in the charge of a pilot with the master of a vessel must exercise a degree of vigilance
master on the bridge of the vessel beside said pilot, commensurate with the circumstances.[84]
the court therein ruled:
Inasmuch as the matter of negligence is a
The authority of the master of a vessel is not in question of fact,[85] we defer to the findings of the trial
complete abeyance while a pilot, who is required by court, especially as this is affirmed by the Court of
law to be accepted, is in discharge of his functions. x x Appeals.[86] But even beyond that, our own evaluation
x It is the duty of the master to interfere in cases of the is that Capt. Kabankov's shared liability is due mainly
to the fact that he failed to act when the perilous contributed thereto, the owners are liable.[92] But the
situation should have spurred him into quick and liability of the ship in rem does not release the pilot
decisive action as master of the ship. In the face of from the consequences of his own negligence. [93] The
imminent or actual danger, he did not have to wait for rationale for this rule is that the master is not entirely
the happenstance to occur before countermanding or absolved of responsibility with respect to navigation
overruling the pilot. By his own admission, Capt. when a compulsory pilot is in charge. [94]
Kabankov concurred with Capt. Gavino's decisions, and
this is precisely the reason why he decided not to By way of validation and in light of the aforecited
countermand any of the latter's orders. Inasmuch as guidepost rulings in American maritime cases, we
both lower courts found Capt. Gavino negligent, by declare that our rulings during the early years of this
expressing full agreement therewith Capt. Kabankov century in City of Manila vs.Gambe, [95] China
was just as negligent as Capt. Gavino. Navigation Co., Ltd. vs. Vidal,[96] and Yap Tico & Co. vs.
Anderson, et al.[97] have withstood the proverbial test of
In general, a pilot is personally liable for damages time and remain good and relevant case law to this
caused by his own negligence or default to the owners day.
of the vessel, and to third parties for damages
sustained in a collision. Such negligence of the pilot in City of Manila stands for the doctrine that the pilot
the performance of duty constitutes a maritime tort. who was in command and complete control of a vessel,
[87]
At common law, a shipowner is not liable for injuries and not the owners, must be held responsible for an
inflicted exclusively by the negligence of a pilot accident which was solely the result of the mistake of
accepted by a vessel compulsorily. [88] The exemption the pilot in not giving proper orders, and which did not
from liability for such negligence shall apply if the pilot result from the failure of the owners to equip the vessel
is actually in charge and solely in fault. Since, a pilot is with the most modern and improved machinery. In
responsible only for his own personal negligence, he China Navigation Co., the pilot deviated from the
cannot be held accountable for damages proximately ordinary and safe course, without heeding the warnings
caused by the default of others, [89] or, if there be of the ship captain. It was this careless deviation that
anything which concurred with the fault of the pilot in caused the vessel to collide with a pinnacle rock which,
producing the accident, the vessel master and owners though uncharted, was known to pilots and local
are liable. navigators. Obviously, the captain was blameless. It
was the negligence of the pilot alone which was the
Since the colliding vessel is prima proximate cause of the collision. The Court could not
facie responsible, the burden of proof is upon the party but then rule that -
claiming benefit of the exemption from liability. It must
be shown affirmatively that the pilot was at fault, and The pilot in the case at bar having deviated from
that there was no fault on the part of the officers or the usual and ordinary course followed by navigators in
crew, which might have been conducive to the passing through the strait in question, without a
damage. The fact that the law compelled the master to substantial reason, was guilty of negligence, and that
take the pilot does not exonerate the vessel from negligence having been the proximate cause of the
liability. The parties who suffer are entitled to have damages, he is liable for such damages as usually and
their remedy against the vessel that occasioned the naturally flow therefrom. x x x.
damage, and are not under necessity to look to the
pilot from whom redress is not always had for x x x (T)he defendant should have known of the
compensation. The owners of the vessel are existence and location of the rock upon which the
responsible to the injured party for the acts of the pilot, vessel struck while under his control and management.
and they must be left to recover the amount as well as x x x.
they can against him. It cannot be maintained that the
circumstance of having a pilot on board, and acting in Consistent with the pronouncements in these two
conformity to his directions operate as a discharge of earlier cases, but on a slightly different tack, the Court
responsibility of the owners. [90] Except insofar as their in Yap Tico & Co. exonerated the pilot from liability for
liability is limited or exempted by statute, the vessel or the accident where the order's of the pilot in the
her owner are liable for all damages caused by the handling of the ship were disregarded by the officers
negligence or other wrongs of the owners or those in and crew of the ship. According to the Court, a pilot is
charge of the vessel. Where the pilot of a vessel is not "x x x responsible for a full knowledge of the channel
a compulsory one in the sense that the owner or and the navigation only so far as he can accomplish it
master of the vessel are bound to accept him, but is through the officers and crew of the ship, and I don't
employed voluntarily, the owners of the vessel are, all see that he can be held responsible for damage when
the more, liable for his negligent act.[91] the evidence shows, as it does in this case, that the
In the United States, the owners of a vessel are officers and crew of the ship failed to obey his orders."
not personally liable for the negligent acts of a Nonetheless, it is possible for a compulsory pilot and
compulsory pilot, but by admiralty law, the fault or the master of the vessel to be concurrently negligent
negligence of a compulsory pilot is imputable to the and thus share the blame for the resulting damage as
vessel and it may be held liable therefor in rem. Where, Joint tortfeasors,[98] but only under the circumstances
however, by the provisions of the statute the pilot is obtaining in and demonstrated by the instant petitions.
compulsory only in the sense that his fee must be paid, It may be said, as a general rule, that negligence
and is not in compulsory charge of the vessel, there is in order to render a person liable need not be the sole
no exemption from liability. Even though the pilot is cause of an injury. It is sufficient that his negligence,
compulsory, if his negligence was not the sole cause of concurring with one or more efficient causes other than
the injury, but the negligence of the master or crew plaintiff's, is the proximate cause of the
injury. Accordingly, where several causes combine to A It was increased.
produce injuries, a person is not relieved from liability
because he is responsible for only one of them, it being Q Why was it increased?
sufficient that the negligence of the person charged A The original was 48 and the actual was 46.
with injury is an efficient cause without which the injury
would not have resulted to as great an extent, and that Q Now, the damage was somewhere in 1980. It took
such cause is not attributable to the person injured. It place in 1980 and you started the repair and
is no defense to one of the concurrent tortfeasors that reconstruction in 1982, that took almost two
the injury would not have resulted from his negligence years?
alone, without the negligence or wrongful acts of the
other concurrent tortfeasor.[99] Where several causes A Yes sir.
producing an injury are concurrent and each is an Q May it not happen that by natural factors, the
efficient cause without which the injury would not have existing damage in 1980 was aggravated for
happened, the injury may be attributed to all or any of the 2 year period that the damage portion was
the causes and recovery may be had against any or all not repaired?
of the responsible persons although under the
circumstances of the case, it may appear that one of A I don't think so because that area was at once
them was more culpable, and that the duty owed by marked and no vehicles can park, it was
them to the injured person was not the same. No closed.
actor's negligence ceases to be a proximate cause
merely because it does not exceed the negligence of Q Even if or even natural elements cannot affect the
other actors. Each wrongdoer is responsible for the damage?
entire result and is liable as though his acts were the
A Cannot, sir.
sole cause of the injury.[100]
xxxxxxxxx
There is no contribution between joint tortfeasors
whose liability is solidary since both of them are liable Q You said in the cross-examination that there were
for the total damage. Where the concurrent or six piles damaged by the accident, but that in
successive negligent acts or omissions of two or more the reconstruction of the pier, PPA drove and
persons, although acting independently, are in constructed 8 piles. Will you explain to us why
combination the direct and proximate cause of a single there was change in the number of piles from
injury to a third person, it is impossible to determine in the original number?
what proportion each contributed to the injury and
either of them is responsible for the whole A In piers where the piles are withdrawn or pulled
injury. Where their concurring negligence resulted in out, you cannot re-drive or drive piles at the
injury or damage to a third party, they become joint same point. You have to redesign the driving of
tortfeasors and are solidarity liable for the resulting the piles. We cannot drive the piles at the same
damage under Article 2194[101] of the Civil Code.[102] point where the piles are broken or damaged or
pulled out. We have to redesign, and you will
As for the amount of damages awarded by the note that in the reconstruction, we redesigned
trial court, we find the same to be reasonable. The such that it necessitated 8 piles.
testimony of Mr. Pascual Barral, witness for PPA, on
cross and redirect examination, appears to be Q Why not, why could you not drive the same
grounded on practical considerations: number of piles and on the same spot?
Q So that the cost of the two additional piles as well A The original location was already disturbed. We
as the (two) square meters is already included cannot get required bearing capacity. The area
in this -P1,300,999.77. is already disturbed.
A Yes sir, everything. It is (the) final cost already. Q Nonetheless, if you drove the original number of
piles, six, on different places, would not that
Q For the eight piles. have sustained the same load?
A Including the reduced areas and other reductions. A It will not suffice, sir."[103]
Q (A)nd the two square meters. We quote the findings of the lower court with
approval:
A Yes sir.
With regards to the amount of damages that is to be
Q In other words, this P1,300,999.77 does not
awarded to plaintiff, the Court finds that the amount
represent only for the six piles that was
of P1,053,300.00 is justified. Firstly, the doctrine of res
damaged as well as the corresponding two
ipsa loquitur best expounded upon in the landmark
piles.
case of Republic vs. Luzon Stevedoring Corp. (21 SCRA
A The area was corresponding, was increased by 279) establishes the presumption that in the ordinary
almost two in the actual payment. That was course of events the ramming of the dock would not
why the contract was decreased, the real have occurred if proper care was used.
amount was P1,124,627.40 and the final one
is P1300,999.77. Secondly, the various estimates and plans justify the
cost of the port construction price. The new structure
Q Yes, but that P1,300,999.77 included the
constructed not only replaced the damaged one but
additional two new posts.
was built of stronger materials to forestall the PAR. XXXI.-- If a payment is made from the reserve
possibility of any similar accidents in the future. fund of an association on account of damages caused
by a member thereof, and he shall have been found at
The Court inevitably finds that the plaintiff is entitled to fault, such member shall reimburse the association in
an award of P1,053,300.00 which represents actual the amount so paid as soon as practicable; and for this
damages caused by the damage to Berth 4 of the purpose, not less than twenty-five per centum of his
Manila International Port. Co-defendants Far Eastern dividends shall be retained each month until the full
Shipping, Capt. Senen Gavino and Manila Pilots amount has been returned to the reserve fund.
Association are solidarity liable to pay this amount to
plaintiff.[104] PAR. XXXIV. - Nothing in these regulations shall relieve
any pilots' association or members thereof, individually
The Solicitor General rightly commented that the or collectively, from civil responsibility for damages to
adjudicated amount of damages represents the life or property resulting from the acts of members in
proportional cost of repair and rehabilitation of the the performance of their duties.
damaged section of the pier.[105]
Correlatively, the relevant provisions of PPA
Except insofar as their liability is limited or Administrative Order No. 03-85, which timely amended
exempted by statute, the vessel or her owners are this applicable maritime regulation, state:
liable for all damages caused by the negligence or
other wrongs of the owners or those in charge of the Article IV
vessel. As a general rule, the owners or those in
possession and control of a vessel and the vessel are
liable for all natural and proximate damages caused to SEC. 17. Pilots' Association -- The Pilots in a Pilotage
persons or property by reason of her negligent District shall organize themselves into a Pilots'
management or navigation.[106] Association or firm, the members of which shall
promulgate their own By-Laws not in conflict with the
FESC's imputation of PPA's failure to provide a safe rules and regulations promulgated by the
and reliable berthing place is obtuse, not only because Authority. These By-Laws shall be submitted not later
it appears to be a mere afterthought, being tardily than one (1) month after the organization of the Pilots'
raised only in this petition, but also because there is no Association for approval by the General Manager of the
allegation or evidence on record about Berth No. 4 Authority. Subsequent amendments thereto shall
being unsafe and unreliable, although perhaps it is a likewise be submitted for approval.
modest pier by international standards. There was,
therefore, no error on the part of the Court of Appeals
in dismissing FESC's counterclaim. SEC. 25. Indemnity Insurance and Reserve Fund--
II. G.R. No. 130150 a) Each Pilots' Association shall collectively insure
its membership at the rate of P50,000.00 each
member to cover in whole or in part any
This consolidated case treats on whether the Court liability arising from any accident resulting in
of Appeals erred in holding MPA jointly and solidarity damage to vessel(s), port facilities and other
liable with its member pilot, Capt. Gavino, in the properties and/or injury to persons or death
absence of employer-employee relationship and in which any member may have caused in the
applying Customs Administrative Order No. 15-65, as course of his performance of pilotage duties. x
basis for the adjudged solidary liability of MPA and x x.
Capt. Gavino.
The pertinent provisions in Chapter I of Customs b) The Pilotage Association shall likewise set up
Administrative Order No. 15-65 are: and maintain a reserve fund which shall answer
for any part of the liability referred to in the
"PAR. XXVII.-- In all pilotage districts where pilotage is immediately preceding paragraph which is left
compulsory, there shall be created and maintained by unsatisfied by the insurance proceeds, in the
the pilots or pilots' association, in the manner following manner:
hereinafter prescribed, a reserve fund equal
to P1,000.00 for each pilot thereof for the purpose of
paying claims for damages to vessels or property 1) Each pilot in the Association shall contribute
caused through acts or omissions of its members while from his own account an amount of P4,000.00
rendered in compulsory pilotage service. In Manila, the (P6,000.00 in the Manila Pilotage District) to
reserve fund shall be P2,000.00 for each pilot. the reserve fund. This fund shall not be
considered part of the capital of the Association
nor charged as an expense thereof.
PAR. XXVIII.-- A pilots' association shall not be liable
under these regulations for damage to any vessel, or
other property, resulting from acts of a member of an 2) Seventy-five percent (75%) of the reserve fund
association in the actual performance of his duty for a shall be set aside for use, in the payment of
greater amount than seventy-five per centum (75%) of damages referred to above incurred in the
its prescribed reserve fund; it being understood that if actual performance of pilots' duties and the
the association is held liable for an amount greater excess shall be paid from the personal funds of
than the amount above-stated, the excess shall be paid the member concerned.
by the personal funds of the member concerned.
xxxxxxxxx members. They are not the employer of their members
and exercise no control over them once they take the
5) If payment is made from the reserve fund of an helm of the vessel. They are also not partnerships
Association on account of damage caused by a because the members do not function as agents for the
member thereof who is found at fault, he shall association or for each other. Pilots' associations are
reimburse the Association in the amount so also not liable for negligently assuring, the competence
paid as soon as practicable; and for this of their members because as professional associations
purpose, not less than twenty-five percentum they made no guarantee of the professional conduct of
(25%) of his dividend shall be retained each their members to the general public. [109]
month until the full amount has been returned
to the reserve fund. Thereafter, the pilot
involved shall be entitled to his full dividend. Where under local statutes and regulations, pilot
associations lack the necessary legal incidents of
responsibility, they have been held not liable for
6) When the reimbursement has been completed damages caused by the default of a member pilot.
as prescribed in the preceding paragraph, the [110]
Whether or not the members of a pilots' association
ten percentum (10%) and the interest withheld are in legal effect a copartnership depends wholly on
from the shares of the other pilots in the powers and duties of the members in relation to
accordance with paragraph (4) hereof shall be one another under the provisions of the governing
returned to them. statutes and regulations. The relation of a pilot to his
association is not that of a servant to the master, but
c) Liability of Pilots' Association -- Nothing in these of an associate assisting and participating in a common
regulations shall relieve any Pilots' Association purpose. Ultimately, the rights and liabilities between a
or members thereof, individually or collectively, pilots' association and an individual member depend
from any civil, administrative and/or criminal largely upon the constitution, articles or by-laws of the
responsibility for damages to life or property association, subject to appropriate government
resulting from the individual acts of its regulations.[111]
members as well as those of the Association's
employees and crew in the performance of No reliance can be placed by MPA on the cited
their duties. American rulings as to immunity from liability of a
pilots' association in light of existing positive regulation
under Philippine law. The Court of Appeals properly
The Court of Appeals, while affirming the trial applied the clear and unequivocal provisions of
court's finding of solidary liability on the part of FESC, Customs Administrative Order No. 15-65. In doing so, it
MPA and Capt. Gavino, correctly based MPA's liability was just being consistent with its finding of the non-
not on the concept of employer-employee relationship existence of employer-employee relationship between
between Capt. Gavino and itself, but on the provisions MPA and Capt. Gavino precludes the application of
of Customs Administrative Order No. 15-65: Article 2180 of the Civil Code.
The Appellant MPA avers that, contrary to the findings True, Customs Administrative Order No. 15-65
and disquisitions of the Court a quo, the Appellant does not categorically characterize or label MPA's
Gavino was not and has never been an employee of liability as solidary in nature. Nevertheless, a careful
the MPA but was only a member thereof. The Court a reading and proper analysis of the correlated provisions
quo, it is noteworthy,, did not state the factual basis on lead to the conclusion that MPA is solidarity liable for
which it anchored its finding that Gavino was the the negligence of its member pilots, without prejudice
employee of MPA. We are in accord with MPA's to subsequent reimbursement from the pilot at fault.
pose.Case law teaches Us that, for an employer-
employee relationship to exist the confluence of the Article 1207 of the Civil Code provides that there
following elements must be established: (1) selection is solidary liability only when the obligation expressly
and engagement of employees; (2) the payment of so states, or when the law or the nature of the
wages; (3) the power of dismissal; (4) the employer's obligation requires solidarity.Plainly, Customs
power to control the employees with respect to the Administrative Order No. 15-65, which as an
means and method by which the work is to be implementing rule has the force and effect of law, can
performed (Ruga versus NLRC, 181SCRA 266). validly provide for solidary liability. We note the
Solicitor General's comment hereon, to wit:
xxxxxxxxx x x x Customs Administrative Order No. 15-65 may be a
The liability of MPA for damages is not anchored on mere rule and regulation issued by an administrative
Article 2180 of the New Civil Code as erroneously found agency pursuant to a delegated authority to fix "the
and declared by the Court a quo but under the details" in the execution or enforcement of a policy set
provisions of Customs Administrative Order No. 15-65, out in the law itself. Nonetheless, said administrative
supra, in tandem with the by-laws of the MPA." [107] order, which adds to the procedural or enforcing
provisions of substantive law, is legally binding and
receives the same statutory force upon going into
There being no employer-employee relationship, effect. In that sense, it has equal, not lower, statutory
clearly Article 2180[108] of the Civil Code is inapplicable force and effect as a regular statute passed by the
since there is no vicarious liability of an employer to legislature."[112]
speak of. It is so stated in American law, as follows:
The well-established rule is that pilot associations are MPA's prayer for modification of the appellate court's
immune to vicarious liability for the tort of their decision under review by exculpating petitioner MPA
"from liability beyond seventy-five percent (75%) of
Reserve Fund" is unnecessary because the liability of
MPA under Par. XXVIII of Customs Administrative Order
No. 15-65 is in fact limited to seventy-five percent
(75%) of its prescribed reserve fund, any amount of
liability beyond that being for the personal account of
the erring pilot and subject to reimbursement in case of
a finding of fault by the member concerned. This is
clarified by the Solicitor General:
Plaintiff appears to have rested his case, as did the We agree with counsel for appellant that under the Civil
trial judge his decision in plaintiff's favor, upon the Code, as under the generally accepted doctrine in the
provisions of article 1089 of the Civil Code read United States, the plaintiff in an action such as that
together with articles 1902, 1903, and 1908 of that under consideration, in order to establish his right to a
code. recovery, must establish by competent evidence:
ART. 1089 Obligations are created by law, by (1) Damages to the plaintiff.
contracts, by quasi-contracts, and illicit acts and
(2) Negligence by act or omission of which In these, and in great variety of similar cases, the great
defendant personally, or some person for whose weight of authority holds the owner of the premises
acts it must respond, was guilty. liable.
(3) The connection of cause and effect between the As laid down in Railroad Co. vs. Stout (17 Wall. (84 U.
negligence and the damage. S.), 657), wherein the principal question was whether a
railroad company was liable for in injury received by an
These proposition are, of course, elementary, and do infant while upon its premises, from idle curiosity, or
not admit of discussion, the real difficulty arising in the for purposes of amusement, if such injury was, under
application of these principles to the particular facts circumstances, attributable to the negligence of the
developed in the case under consideration. 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
It is clear that the accident could not have happened
are unlawfully upon its premises that it owes to
and not the fulminating caps been left exposed at the
passengers conveyed by it, it is not exempt from
point where they were found, or if their owner had
responsibility to such strangers for injuries arising from
exercised due care in keeping them in an appropriate
its negligence or from its tortious acts;" and that "the
place; but it is equally clear that plaintiff would not
conduct of an infant of tender years is not to be judged
have been injured had he not, for his own pleasure and
by the same rule which governs that of adult. While it
convenience, entered upon the defendant's premises,
is the general rule in regard to an adult that to entitle
and strolled around thereon without the express
him to recover damages for an injury resulting from the
permission of the defendant, and had he not picked up
fault or negligence of another he must himself have
and carried away the property of the defendant which
been free from fault, such is not the rule in regard to an
he found on its premises, and had he not thereafter
infant of tender years. The care and caution required of
deliberately cut open one of the caps and applied a
a child is according to his maturity and capacity only,
match to its contents.
and this is to be determined in each case by the
circumstances of the case."
But counsel for plaintiff contends that because of
plaintiff's youth and inexperience, his entry upon
The doctrine of the case of Railroad Company vs.
defendant company's premises, and the intervention of
Stout was vigorously controverted and sharply
his action between the negligent act of defendant in
criticized in several state courts, and the supreme
leaving the caps exposed on its premises and the
court of Michigan in the case of Ryan vs. Towar (128
accident which resulted in his injury should not be held
Mich., 463) formally repudiated and disapproved the
to have contributed in any wise to the accident, which
doctrine of the Turntable cases, especially that laid
should be deemed to be the direct result of defendant's
down in Railroad Company vs. Stout, in a very able
negligence in leaving the caps exposed at the place
decision wherein it held, in the language of the
where they were found by the plaintiff, and this latter
syllabus: (1) That the owner of the land is not liable to
the proximate cause of the accident which occasioned
trespassers thereon for injuries sustained by them, not
the injuries sustained by him.
due to his wanton or willful acts; (2) that no exception
to this rule exists in favor of children who are injured by
In support of his contention, counsel for plaintiff relies dangerous machinery naturally calculated to attract
on the doctrine laid down in many of the courts of last them to the premises; (3) that an invitation or license
resort in the United States in the cases known as the to cross the premises of another can not be predicated
"Torpedo" and "Turntable" cases, and the cases based on the mere fact that no steps have been taken to
thereon. interfere with such practice; (4) that there is no
difference between children and adults as to the
In a typical cases, the question involved has been circumstances that will warrant the inference of an
whether a railroad company is liable for an injury invitation or a license to enter upon another's
received by an infant of tender years, who from mere premises.
idle curiosity, or for the purposes of amusement, enters
upon the railroad company's premises, at a place Similar criticisms of the opinion in the case of Railroad
where the railroad company knew, or had good reason Company vs. Stout were indulged in by the courts in
to suppose, children would be likely to come, and there Connecticut and Massachusetts. (Nolan vs. Railroad
found explosive signal torpedoes left unexposed by the Co., 53 Conn., 461; 154 Mass., 349). And the doctrine
railroad company's employees, one of which when has been questioned in Wisconsin, Pennsylvania, New
carried away by the visitor, exploded and injured him; Hampshire, and perhaps in other States.
or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such
On the other hand, many if not most of the courts of
condition as to make it probable that children in
last resort in the United States, citing and approving
playing with it would be exposed to accident or injury
the doctrine laid down in England in the leading case
therefrom and where the infant did in fact suffer injury
of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the
in playing with such machine.
rule in these cases in accord with that announced in
the Railroad Company vs. Stout (supra), and the plaintiff, a mere lad, moved by curiosity to see the
Supreme Court of the United States, in a unanimous mine, in the vicinity of the slack pit, was a
opinion delivered by Justice Harlan in the case of Union trespasser, to whom it owed no duty, or for whose
Pacific Railway Co. vs. McDonal and reconsidered the protection it was under no obligation to make
doctrine laid down in Railroad Co. vs. Stout, and after provisions.
an exhaustive and critical analysis and review of many
of the adjudged cases, both English and American, In Townsend vs. Wathen (9 East, 277, 281) it was
formally declared that it adhered "to the principles held that if a man dangerous traps, baited with
announced in the case of Railroad Co. vs. Stout." flesh, in his own ground, so near to a highway, or
to the premises of another, that dogs passing along
In the case of Union Pacific Railway Co. vs. the highway, or kept in his neighbors premises,
MacDonald (supra) the facts were as follows: The would probably be attracted by their instinct into
plaintiff, a boy 12 years of age, out of curiosity and for the traps, and in consequence of such act his
his own pleasure, entered upon and visited the neighbor's dogs be so attracted and thereby
defendant's premises, without defendant's express injured, an action on the case would lie. "What
permission or invitation, and while there, was by difference," said Lord Ellenborough, C.J., "is there in
accident injured by falling into a burning slack pile of reason between drawing the animal into the trap
whose existence he had no knowledge, but which had by means of his instinct which he can not resist,
been left by defendant on its premises without any and putting him there by manual force?" What
fence around it or anything to give warning of its difference, in reason we may observe in this case,
dangerous condition, although defendant knew or had is there between an express license to the children
reason the interest or curiosity of passers-by. On these of this village to visit the defendant's coal mine, in
facts the court held that the plaintiff could not be the vicinity of its slack pile, and an implied license,
regarded as a mere trespasser, for whose safety and resulting from the habit of the defendant to permit
protection while on the premises in question, against them, without objection or warning, to do so at will,
the unseen danger referred to, the defendant was for purposes of curiosity or pleasure? Referring it
under no obligation to make provision. the case of Townsend vs. Wathen, Judge Thompson,
in his work on the Law of Negligence, volume 1,
We quote at length from the discussion by the court of page 305, note, well says: "It would be a barbarous
the application of the principles involved to the facts in rule of law that would make the owner of land
that case, because what is said there is strikingly liable for setting a trap thereon, baited with
applicable in the case at bar, and would seem to stinking meat, so that his neighbor's dog attracted
dispose of defendant's contention that, the plaintiff in by his natural instinct, might run into it and be
this case being a trespasser, the defendant company killed, and which would exempt him from liability
owed him no duty, and in no case could be held liable for the consequence of leaving exposed and
for injuries which would not have resulted but for the unguarded on his land a dangerous machine, so
entry of plaintiff on defendant's premises. 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."
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 Chief Justice Cooley, voicing the opinion of the supreme
defendant was guilty of negligence in leaving court of Michigan, in the case of Powers vs. Harlow (53
unguarded the slack pile, made by it in the vicinity Mich., 507), said that (p. 515):
of its depot building. It could have forbidden all
persons from coming to its coal mine for purposes Children, wherever they go, must be expected to
merely of curiosity and pleasure. But it did not do act upon childlike instincts and impulses; and
so. On the contrary, it permitted all, without regard others who are chargeable with a duty of care and
to age, to visit its mine, and witness its operation. caution toward them must calculate upon this, and
It knew that the usual approach to the mine was by take precautions accordingly. If they leave exposed
a narrow path skirting its slack pit, close to its to the observation of children anything which
depot building, at which the people of the village, would be tempting to them, and which they in their
old and young, would often assemble. It knew that immature judgment might naturally suppose they
children were in the habit of frequenting that were at liberty to handle or play with, they should
locality and playing around the shaft house in the expect that liberty to be taken.
immediate vicinity of the slack pit. The slightest
regard for the safety of these children would have And the same eminent jurist in his treatise or torts,
suggested that they were in danger from being so alluding to the doctrine of implied invitation to visit the
near a pit, beneath the surface of which was premises of another, says:
concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a
In the case of young children, and other persons
child might accidentally fall and be burned to
not fully sui juris, an implied license might
death. Under all the circumstances, the railroad
sometimes arise when it would not on behalf of
company ought not to be heard to say that the
others. Thus leaving a tempting thing for children S. vs. Toribio,1 No. 5060, decided January 26, 1910),
to play with exposed, where they would be likely to and except as to infants of very tender years it would
gather for that purpose, may be equivalent to an be absurd and unreasonable in a community organized
invitation to them to make use of it; and, perhaps, as is that in which we lived to hold that parents or
if one were to throw away upon his premises, near guardian are guilty of negligence or imprudence in
the common way, things tempting to children, the every case wherein they permit growing boys and girls
same implication should arise. (Chap. 10, p. 303.) to leave the parental roof unattended, even if in the
event of accident to the child the negligence of the
The reasoning which led the Supreme Court of the parent could in any event be imputed to the child so as
United States to its conclusion in the cases of Railroad to deprive it a right to recover in such cases a point
Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. which we neither discuss nor decide.
McDonald (supra) is not less cogent and convincing in
this jurisdiction than in that wherein those cases But while we hold that the entry of the plaintiff upon
originated. Children here are actuated by similar defendant's property without defendant's express
childish instincts and impulses. Drawn by curiosity and invitation or permission would not have relieved
impelled by the restless spirit of youth, boys here as defendant from responsibility for injuries incurred there
well as there will usually be found whenever the public by plaintiff, without other fault on his part, if such
is permitted to congregate. The movement of injury were attributable to the negligence of the
machinery, and indeed anything which arouses the defendant, we are of opinion that under all the
attention of the young and inquiring mind, will draw circumstances of this case the negligence of the
them to the neighborhood as inevitably as does the defendant in leaving the caps exposed on its premises
magnet draw the iron which comes within the range of was not the proximate cause of the injury received by
its magnetic influence. The owners of premises, the plaintiff, which therefore was not, properly
therefore, whereon things attractive to children are speaking, "attributable to the negligence of the
exposed, or upon which the public are expressly or defendant," and, on the other hand, we are satisfied
impliedly permitted to enter or upon which the owner that plaintiffs action in cutting open the detonating cap
knows or ought to know children are likely to roam and putting match to its contents was the proximate
about for pastime and in play, " must calculate upon cause of the explosion and of the resultant injuries
this, and take precautions accordingly." In such cases inflicted upon the plaintiff, and that the defendant,
the owner of the premises can not be heard to say that therefore is not civilly responsible for the injuries thus
because the child has entered upon his premises incurred.
without his express permission he is a trespasser to
whom the owner owes no duty or obligation whatever. Plaintiff contends, upon the authority of the Turntable
The owner's failure to take reasonable precautions to and Torpedo cases, that because of plaintiff's youth the
prevent the child from entering his premises at a place intervention of his action between the negligent act of
where he knows or ought to know that children are the defendant in leaving the caps exposed on its
accustomed to roam about of to which their childish premises and the explosion which resulted in his injury
instincts and impulses are likely to attract them is at should not be held to have contributed in any wise to
least equivalent to an implied license to enter, and the accident; and it is because we can not agree with
where the child does enter under such conditions the this proposition, although we accept the doctrine of the
owner's failure to take reasonable precautions to guard Turntable and Torpedo cases, that we have thought
the child against injury from unknown or unseen proper to discuss and to consider that doctrine at
dangers, placed upon such premises by the owner, is length in this decision. As was said in case of Railroad
clearly a breach of duty, responsible, if the child is Co. vs. Stout (supra), "While it is the general rule in
actually injured, without other fault on its part than regard to an adult that to entitle him to recover
that it had entered on the premises of a stranger damages for an injury resulting from the fault or
without his express invitation or permission. To hold negligence of another he must himself have been free
otherwise would be expose all the children in the from fault, such is not the rule in regard to an infant of
community to unknown perils and unnecessary danger tender years. The care and caution required of a child
at the whim of the owners or occupants of land upon is according to his maturity and capacity only, and this
which they might naturally and reasonably be expected is to be determined in each case by the circumstances
to enter. of the case." As we think we have shown, under the
reasoning on which rests the doctrine of the Turntable
This conclusion is founded on reason, justice, and and Torpedo cases, no fault which would relieve
necessity, and neither is contention that a man has a defendant of responsibility for injuries resulting from its
right to do what will with his own property or that negligence can be attributed to the plaintiff, a well-
children should be kept under the care of their parents grown boy of 15 years of age, because of his entry
or guardians, so as to prevent their entering on the upon defendant's uninclosed premises without express
premises of others is of sufficient weight to put in permission or invitation' but it is wholly different
doubt. In this jurisdiction as well as in the United States question whether such youth can be said to have been
all private property is acquired and held under the tacit free from fault when he willfully and deliberately cut
condition that it shall not be so used as to injure the open the detonating cap, and placed a match to the
equal rights and interests of the community (see U. contents, knowing, as he undoubtedly did, that his
action would result in an explosion. On this point, which necessarily depends of his own acts and their
must be determined by "the particular circumstances consequences; and at the age at which a minor can be
of this case," the doctrine laid down in the Turntable said to have such ability will necessarily vary in
and Torpedo cases lends us no direct aid, although it is accordance with the varying nature of the infinite
worthy of observation that in all of the "Torpedo" and variety of acts which may be done by him. But some
analogous cases which our attention has been directed, idea of the presumed capacity of infants under the laws
the record discloses that the plaintiffs, in whose favor in force in these Islands may be gathered from an
judgments have been affirmed, were of such tender examination of the varying ages fixed by our laws at
years that they were held not to have the capacity to which minors are conclusively presumed to be capable
understand the nature or character of the explosive of exercising certain rights and incurring certain
instruments which fell into their hands. responsibilities, though it can not be said that these
provisions of law are of much practical assistance in
In the case at bar, plaintiff at the time of the accident cases such as that at bar, except so far as they
was a well-grown youth of 15, more mature both illustrate the rule that the capacity of a minor to
mentally and physically than the average boy of his become responsible for his own acts varies with the
age; he had been to sea as a cabin boy; was able to varying circumstances of each case. Under the
earn P2.50 a day as a mechanical draftsman thirty provisions of the Penal Code a minor over fifteen years
days after the injury was incurred; and the record of age is presumed to be capable of committing a
discloses throughout that he was exceptionally well crime and is to held criminally responsible therefore,
qualified to take care of himself. The evidence of record although the fact that he is less than eighteen years of
leaves no room for doubt that, despite his denials on age will be taken into consideration as an extenuating
the witness stand, he well knew the explosive circumstance (Penal Code, arts. 8 and 9). At 10 years of
character of the cap with which he was amusing age a child may, under certain circumstances, choose
himself. The series of experiments made by him in his which parent it prefers to live with (Code of Civil
attempt to produce an explosion, as described by the Procedure, sec. 771). At 14 may petition for the
little girl who was present, admit of no other appointment of a guardian (Id., sec. 551), and may
explanation. His attempt to discharge the cap by the consent or refuse to be adopted (Id., sec. 765). And
use of electricity, followed by his efforts to explode it males of 14 and females of 12 are capable of
with a stone or a hammer, and the final success of his contracting a legal marriage (Civil Code, art. 83; G. O.,
endeavors brought about by the application of a match No. 68, sec. 1).
to the contents of the caps, show clearly that he knew
what he was about. Nor can there be any reasonable We are satisfied that the plaintiff in this case had
doubt that he had reason to anticipate that the sufficient capacity and understanding to be sensible of
explosion might be dangerous, in view of the fact that the danger to which he exposed himself when he put
the little girl, 9 years of age, who was within him at the the match to the contents of the cap; that he was sui
time when he put the match to the contents of the cap, juris in the sense that his age and his experience
became frightened and ran away. qualified him to understand and appreciate the
necessity for the exercise of that degree of caution
True, he may not have known and probably did not which would have avoided the injury which resulted
know the precise nature of the explosion which might from his own deliberate act; and that the injury
be expected from the ignition of the contents of the incurred by him must be held to have been the direct
cap, and of course he did not anticipate the resultant and immediate result of his own willful and reckless
injuries which he incurred; but he well knew that a act, so that while it may be true that these injuries
more or less dangerous explosion might be expected would not have been incurred but for the negligence
from his act, and yet he willfully, recklessly, and act of the defendant in leaving the caps exposed on its
knowingly produced the explosion. It would be going premises, nevertheless plaintiff's own act was the
far to say that "according to his maturity and capacity" proximate and principal cause of the accident which
he exercised such and "care and caution" as might inflicted the injury.
reasonably be required of him, or that defendant or
anyone else should be held civilly responsible for The rule of the Roman law was: Quod quis ex culpa sua
injuries incurred by him under such circumstances. damnum sentit, non intelligitur sentire. (Digest, book
50, tit. 17 rule 203.)
The law fixes no arbitrary age at which a minor can be
said to have the necessary capacity to understand and The Patidas contain the following provisions:
appreciate the nature and consequences of his own
acts, so as to make it negligence on his part to fail to The just thing is that a man should suffer the
exercise due care and precaution in the commission of damage which comes to him through his own fault,
such acts; and indeed it would be impracticable and and that he can not demand reparation therefor
perhaps impossible so to do, for in the very nature of from another. (Law 25, tit. 5, Partida 3.)
things the question of negligence necessarily depends
on the ability of the minor to understand the character
And they even said that when a man received an
of his own acts and their consequences; and the age at
injury through his own acts the grievance should be
which a minor can be said to have such ability will
against himself and not against another. (Law 2, tit. it is apparent that it is duty of him who shall claim
7, Partida 2.) damages to establish their existence. The decisions
of April 9, 1896, and March 18, July, and September
According to ancient sages, when a man received 27, 1898, have especially supported the principle,
an injury through his own acts the grievance should the first setting forth in detail the necessary points
be against himself and not against another. (Law 2, of the proof, which are two: An act or omission on
tit. 7 Partida 2.) the part of the person who is to be charged with
the liability, and the production of the damage by
said act or omission.
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, This includes, by inference, the establishment of a
nevertheless, the interpretation placed upon its relation of cause or effect between the act or
provisions by the supreme court of Spain, and by this omission and the damage; the latter must be the
court in the case of Rakes vs. Atlantic, Gulf and Pacific direct result of one of the first two. As the decision
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in of March 22, 1881, said, it is necessary that the
the case at bar the right to recover damages from the damages result immediately and directly from an
defendant, in whole or in part, for the injuries sustained act performed culpably and wrongfully;
by him. "necessarily presupposing a legal ground for
imputability." (Decision of October 29, 1887.)
The judgment of the supreme court of Spain of the 7th
of March, 1902 (93 Jurisprudencia Civil, 391), is directly Negligence is not presumed, but must be proven
in point. In that case the court said: by him who alleges it. (Scavoela, Jurisprudencia del
Codigo Civil, vol. 6, pp. 551-552.)
According to the doctrine expressed in article 1902
of the Civil Code, fault or negligence is a source of (Cf. decisions of supreme court of Spain of June 12,
obligation when between such negligence and the 1900, and June 23, 1900.)
injury there exists the relation of cause and effect;
but if the injury produced should not be the result Finally we think the doctrine in this jurisdiction
of acts or omissions of a third party, the latter has applicable to the case at bar was definitely settled in
no obligation to repair the same, although such this court in the maturely considered case of Rakes vs.
acts or omission were imprudent or unlawful, and Atlantic, Gulf and Pacific Co. (supra), wherein we held
much less when it is shown that the immediate that while "There are many cases (personal injury
cause of the injury was the negligence of the cases) was exonerated," on the ground that "the
injured party himself. negligence of the plaintiff was the immediate cause of
the casualty" (decisions of the 15th of January, the
The same court, in its decision of June 12, 1900, said 19th of February, and the 7th of March, 1902, stated in
that "the existence of the alleged fault or negligence is Alcubilla's Index of that year); none of the cases
not sufficient without proof that it, and no other cause, decided by the supreme court of Spain "define the
gave rise to the damage." 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
See also judgment of October 21, 1903.
countries;" and in such cases we declared that law in
this jurisdiction to require the application of "the
To similar effect Scaevola, the learned Spanish principle of proportional damages," but expressly and
writer, writing under that title in his Jurisprudencia definitely denied the right of recovery when the acts of
del Codigo Civil (1902 Anuario, p. 455), the injured party were the immediate causes of the
commenting on the decision of March 7, 1902 of accident.
the Civil Code, fault or negligence gives rise to an
obligation when between it and the damage there
The doctrine as laid down in that case is as follows:
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 Difficulty seems to be apprehended in deciding
to make good upon the latter, even though such which acts of the injured party shall be considered
acts or omissions be imprudent or illegal, and immediate causes of the accident. The test is
much less so when it is shown that the immediate simple. Distinction must be made between the
cause of the damage has been the recklessness of accident and the injury, between the event itself,
the injured party himself. 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
And again
proper hurt. For instance, the cause of the accident
under review was the displacement of the
In accordance with the fundamental principle of crosspiece or the failure to replace it. This produces
proof, that the burden thereof is upon the plaintiff, the event giving occasion for damagesthat is, the
sinking of the track and the sliding of the iron rails. William A. Kincaid and Thomas L. Hartigan for
To this event, the act of the plaintiff in walking by appellant.
the side of the car did not contribute, although it Acting Attorney-General Zaragoza for appellee.
was an element of the damage which came to
himself. Had the crosspiece been out of place CARSON, J.:
wholly or partly through his act or omission of duty, The appellant in this case was charged in the court
that would have been one of the determining below with homicidio por imprudencia
causes of the event or accident, for which he would temeraria (homicide committed with reckless
have been responsible. Where he contributes to negligence), and was convicted of homicidio committed
the principal occurrence, as one of its determining with simple negligence and sentenced to four months
and one day of arresto mayor and to pay the costs of
factors, he can not recover. Where, in conjunction
the proceedings.
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 The information charges the commission of the offense
such injury, less a sum deemed a suitable as follows:
equivalent for his own imprudence.
On or about the 31st day of October of the present
year, 1913, in the barrio of Santa Rita of the
We think it is quite clear that under the doctrine thus
municipality of Batangas, Batangas, the accused,
stated, the immediate cause of the explosion, the being an engineer and while conducting the freight
accident which resulted in plaintiff's injury, was in his train which was going to the municipality of Bauan,
own act in putting a match to the contents of the cap, at about 10 o'clock in the morning of the said day
and that having "contributed to the principal saw that Eligio Castillo, a deaf-mute, was traveling
occurrence, as one of its determining factors, he can along the railroad track, and as the said Castillo did
not recover." not get off of the said track in spite of the whistle
or warnings given by the accused, the accused did
We have not deemed it necessary to examine the maliciously and criminally cause the said train to
run over the said Castillo, thereby killing him
effect of plaintiff's action in picking up upon
instantly; an act committed with violation of law.
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 On the 31st of October, 1913, Eligio Castillo, a deaf-
mute, was run down and killed, while attempting to
defendant in leaving the caps exposed on its premises
cross the railroad track in the barrio of Santa Rita,
and the injuries inflicted upon the plaintiff by the
Batangas, by an engine on which the accused was
explosion of one of these caps. Under the doctrine of employed as engineer. The deaf-mute stepped out on
the Torpedo cases, such action on the part of an infant the track from an adjoining field shortly before the
of very tender years would have no effect in relieving accident, walked along one side of the track for some
defendant of responsibility, but whether in view of the little distance and was killed as he attempted, for some
well-known fact admitted in defendant's brief that unknown reason, to cross over to the other side.
"boys are snappers-up of unconsidered trifles," a youth
of the age and maturity of plaintiff should be deemed When the accused engineer first saw the deceased, he
without fault in picking up the caps in question under was walking near the track, in the same direction as
all the circumstances of this case, we neither discuss that in which the train was running. The train, a heavy
nor decide. freight train, had just rounded a curve, and the man in
front was about 175 meters ahead of the engine. The
Twenty days after the date of this decision let judgment engineer immediately blew his whistle twice, and
noticing, a few moments afterwards, that the man in
be entered reversing the judgment of the court below,
front did not respond to the warning by stepping aside
without costs to either party in this instance, and ten
from the track, he tried to slow down the engine, but
days thereafter let the record be returned to the court did not succeed in stopping in time to avoid running
wherein it originated, where the judgment will be down the pedestrian. He did not attempt to stop his
entered in favor of the defendant for the costs in first engine when he first saw the man walking along the
instance and the complaint dismissed without day. So side of the track; but he claims that he did all in his
ordered. power to slow down a few moments afterwards, that is
to say after he had blown his whistle without
Arellano, C.J., Torres and Moreland, JJ., concur. apparently attracting the attention of the pedestrian,
Johnson, J., concurs in the result. who, about that time, turned and attempted to cross
the track.
Any person who, while violating any regulation, See also the recent decision of the Tribunal Supremo
shall, by any act of imprudence or negligence not de Espaa dated July 11, 1906, wherein the doctrine is
amounting to reckless imprudence, commit an reaffirmed in a case involving the alleged negligence of
offense, shall suffer the penalty of arresto mayor in certain railroad employees in handling railroad cars.
its medium and maximum degrees.
Doubtless a presumption of negligence will frequently
This does not mean that in every case in which one arise from the very fact that an accident occurred at
accidentally injures or kills another he is criminally the time when the accused was violating a regulation;
liable therefor, if at the moment he happens to be especially if the regulation has for its object the
guilty of a violation of some petty regulation avoidance of such an accident. But this presumption
(reglamento). The injury or death must have resulted may, of course, be rebutted in criminal as well as in
from some "imprudence or negligence" (imprudencia o civil cases by competent evidence. In the Federal Court
negligencia) on his part. True it need only be slight of the United States the rule is stated as follows:
negligence, if accompanied by a violation of the
regulations, but the relation of cause and effect must Where a ship at the time of collision is in actual
exist between the negligence or imprudence of the violation of a statutory rule intended to prevent
accused and the injury inflicted. If it appears that the collisions the burden is upon her of showing that
injury in no wise resulted from the violation of the her fault could not have been a contributory cause
regulations, or the negligent conduct of the accused, of the collision. (7 Cyc., 370 and numerous other
he incurs no criminal liability under the provisions of cases there cited.)
this article.
The evidence of record in the case at bar clearly and
Viada, in his commentaries on this article of the Penal satisfactorily discloses that even if the train was
Code (vol. 3, p. 685), sets out the following question running at a speed slightly in excess of the maximum
and answer which clearly discloses that a conviction speed prescribed in the regulations, that fact had no
thereunder cannot be maintained, unless there was causal relation to the accident and in no wise
culpable negligence in the violation of a duly contributed to it.
prescribed regulation; and unless, further, the latter
was the proximate and immediate cause of the injury The judgment convicting and sentencing the appellant
inflicted: in this case should be reversed, and the accused
acquitted of the offense with which he is charged in the
information, and his bail bond exonerated, with the the UERM Medical Memorial Center where she was
costs of both instances de officio. So ordered. found to have a traumatic amputation, leg, left up to
distal thigh (above knee). She was confined in the
Arellano, C. J., Johnson, Trent, and Araullo, JJ., concur. hospital for twenty (20) days and was eventually fitted
with an artificial leg. The expenses for the hospital
confinement (P 120,000.00) and the cost of the
Separate Opinions
artificial leg (P27,000.00) were paid by defendants
TORRES, J., dissenting:
from the car insurance.
The writer is of the opinion that the defendant should
be sentenced for the crime of reckless negligence to
eight months of prision correccional, the accessories, In her complaint, plaintiff prayed for moral damages in
indemnity and costs with subsidiary imprisonment. the amount of P1 million, exemplary damages in the
amount of P100,000.00 and other medical and related
expenses amounting to a total of P180,000.00,
including loss of expected earnings.
[G.R. No. 115024. February 7, 1996]
MA. LOURDES VALENZUELA, petitioner, Defendant Richard Li denied that he was negligent. He
vs. COURT OF APPEALS, RICHARD LI and was on his way home, travelling at 55 kph; considering
ALEXANDER COMMERCIAL, that it was raining, visibility was affected and the road
INC., respondents. was wet. Traffic was light. He testified that he was
driving along the inner portion of the right lane of
[G.R. No. 117944. February 7, 1996] Aurora Blvd. towards the direction of Araneta Avenue,
RICHARD LI, petitioner, vs. COURT OF APPEALS when he was suddenly confronted, in the vicinity of A.
and MA. LOURDES Lake Street, San Juan, with a car coming from the
VALENZUELA, respondents. opposite direction, travelling at 80 kph, with full bright
lights. Temporarily blinded, he instinctively swerved to
DECISION the right to avoid colliding with the oncoming vehicle,
KAPUNAN, J.: and bumped plaintiffs car, which he did not see
These two petitions for review on certiorari under because it was midnight blue in color, with no parking
Rule 45 of the Revised Rules of Court stem from an lights or early warning device, and the area was poorly
action to recover damages by petitioner Lourdes lighted. He alleged in his defense that the left rear
Valenzuela in the Regional Trial Court of Quezon City for portion of plaintiffs car was protruding as it was then at
injuries sustained by her in a vehicular accident in the a standstill diagonally on the outer portion of the right
early morning of June 24, 1990. The facts found by the lane towards Araneta Avenue (par. 18, Answer). He
trial court are succinctly summarized by the Court of confirmed the testimony of plaintiffs witness that after
Appeals below: being bumped the car of the plaintiff swerved to the
right and hit another car parked on the sidewalk.
This is an action to recover damages based on quasi- Defendants counterclaimed for damages, alleging that
delict, for serious physical injuries sustained in a plaintiff was reckless or negligent, as she was not a
vehicular accident. licensed driver.
Plaintiffs version of the accident is as follows: At The police investigator, Pfc. Felic Ramos, who prepared
around 2:00 in the morning of June 24, 1990, plaintiff the vehicular accident report and the sketch of the
Ma. Lourdes Valenzuela was driving a blue Mitsubishi three cars involved in the accident, testified that the
lancer with Plate No. FFU 542 from her restaurant at plaintiffs car was near the sidewalk; this witness did
Marcos highway to her home at Palanza Street, Araneta not remember whether the hazard lights of plaintiffs
Avenue. She was travelling along Aurora Blvd. with a car were on, and did not notice if there was an early
companion, Cecilia Ramon, heading towards the warning device; there was a street light at the corner of
direction of Manila. Before reaching A. Lake Street, she Aurora Blvd. and F. Roman, about 100 meters away. It
noticed something wrong with her tires; she stopped at was not mostly dark, i.e. things can be seen (p. 16, tsn,
a lighted place where there were people, to verify Oct. 28, 1991).
whether she had a flat tire and to solicit help if needed.
Having been told by the people present that her rear
right tire was flat and that she cannot reach her home A witness for the plaintiff, Rogelio Rodriguez, testified
in that cars condition, she parked along the sidewalk, that after plaintiff alighted from her car and opened the
about 1 feet away, put on her emergency lights, trunk compartment, defendants car came approaching
alighted from the car, and went to the rear to open the very fast ten meters from the scene; the car was
trunk. She was standing at the left side of the rear of zigzagging. The rear left side of plaintiffs car was
her car pointing to the tools to a man who will help her bumped by the front right portion of defendants car; as
fix the tire when she was suddenly bumped by a 1987 a consequence, the plaintiffs car swerved to the right
Mitsubishi Lancer driven by defendant Richard Li and and hit the parked car on the sidewalk. Plaintiff was
registered in the name of defendant Alexander thrown to the windshield of defendants car, which was
Commercial, Inc. Because of the impact plaintiff was destroyed, and landed under the car. He stated that
thrown against the windshield of the car of the defendant was under the influence of liquor as he could
defendant, which was destroyed, and then fell to the smell it very well (pp. 43, 79, tsn., June 17, 1991).
ground. She was pulled out from under defendants car.
Plaintiffs left leg was severed up to the middle of her After trial, the lower court sustained the plaintiffs
thigh, with only some skin and sucle connected to the submissions and found defendant Richard Li guilty of
rest of the body. She was brought to
gross negligence and liable for damages under Article hurting words to Richard Li because he noticed that the
2176 of the Civil Code. The trial court likewise held latter was under the influence of liquor, because he
Alexander Commercial, Inc., Lis employer, jointly and could smell it very well (p. 36, et. seq., tsn, June 17,
severally liable for damages pursuant to Article 2180. It 1991). He knew that plaintiff owned a beerhouse in Sta.
ordered the defendants to jointly and severally pay the Mesa in the 1970s, but did not know either plaintiff or
following amounts: defendant Li before the accident.
1. P41,840.00, as actual damages, representing the
miscellaneous expenses of the plaintiff as a result of In agreeing with the trial court that the defendant
her severed left leg; Li was liable for the injuries sustained by the plaintiff,
the Court of Appeals, in its decision, however, absolved
the Lis employer, Alexander Commercial, Inc. from any
2. The sums of (a) P37,500.00, for the unrealized liability towards petitioner Lourdes Valenzuela and
profits because of the stoppage of plaintiffs Bistro La reduced the amount of moral damages to P500,000.00.
Conga restaurant three (3) weeks after the accident on Finding justification for exemplary damages, the
June 24, 1990; (b) P20,000.00, a month, as unrealized respondent court allowed an award of P50,000.00 for
profits of the plaintiff in her Bistro La Conga restaurant, the same, in addition to costs, attorneys fees and the
from August, 1990 until the date of this judgment; and other damages. The Court of Appeals, likewise,
(c) P30,000.00, a month, for unrealized profits in dismissed the defendants counterclaims.[3]
plaintiffs two (2) beauty salons from July, 1990 until the
date of this decision; Consequently, both parties assail the respondent
courts decision by filing two separate petitions before
3. P1,000,000.00, in moral damages; this Court. Richard Li, in G.R. No. 117944, contends
that he should not be held liable for damages because
the proximate cause of the accident was Ma. Lourdes
4. P50,000.00, as exemplary damages, Valenzuelas own negligence. Alternatively, he argues
that in the event that this Court finds him negligent,
5. P60,000.00, as reasonable attorneys fees; and such negligence ought to be mitigated by the
contributory negligence of Valenzuela.
6. Costs. On the other hand, in G.R. No. 115024, Ma.
Lourdes Valenzuela assails the respondent courts
As a result of the trial courts decision, defendants decision insofar as it absolves Alexander Commercial,
filed an Omnibus Motion for New Trial and for Inc. from liability as the owner of the car driven by
Reconsideration, citing testimony in Criminal Case O.C. Richard Li and insofar as it reduces the amount of the
No. 804367 (People vs. Richard Li), tending to show actual and moral damages awarded by the trial court.[4]
that the point of impact, as depicted by the pieces of
glass/debris from the parties cars, appeared to be at As the issues are intimately related, both petitions
the center of the right lane of Aurora Blvd. The trial are hereby consolidated. It is plainly evident that the
court denied the motion. Defendants forthwith filed an petition for review in G.R. No. 117944 raises no
appeal with the respondent Court of Appeals. In a substantial questions of law. What it, in effect, attempts
Decision rendered March 30, 1994, the Court of to have this Court review are factual findings of the
Appeals found that there was ample basis from the trial court, as sustained by the Court of Appeals finding
evidence of record for the trial courts finding that the Richard Li grossly negligent in driving the Mitsubishi
plaintiffs car was properly parked at the right, beside Lancer provided by his company in the early morning
the sidewalk when it was bumped by defendants car. hours of June 24, 1990. This we will not do. As a
[1]Dismissing the defendants argument that the general rule, findings of fact of the Court of Appeals are
plaintiffs car was improperly parked, almost at the binding and conclusive upon us, and this Court will not
center of the road, the respondent court noted that normally disturb such factual findings unless the
evidence which was supposed to prove that the car findings of fact of the said court are palpably
was at or near center of the right lane was never unsupported by the evidence on record or unless the
presented during the trial of the case.[2] The respondent judgment itself is based on a misapprehension of facts.
[5]
court furthermore observed that:
Defendant Lis testimony that he was driving at a safe In the first place, Valenzuelas version of the
speed of 55 km./hour is self serving; it was not incident was fully corroborated by an uninterested
corroborated. It was in fact contradicted by eyewitness witness, Rogelio Rodriguez, the owner-operator of an
Rodriguez who stated that he was outside his establishment located just across the scene of the
beerhouse located at Aurora Boulevard after A. Lake accident. On trial, he testified that he observed a car
Street, at or about 2:00 a.m. of June 24, 1990 when his being driven at a very fast speed, racing towards the
attention was caught by a beautiful lady (referring to general direction of Araneta Avenue.[6] Rodriguez
the plaintiff) alighting from her car and opening the further added that he was standing in front of his
trunk compartment; he noticed the car of Richard Li establishment, just ten to twenty feet away from the
approaching very fast ten (10) meters away from the scene of the accident, when he saw the car hit
scene; defendants car was zigzagging, although there Valenzuela, hurtling her against the windshield of the
were no holes and hazards on the street, and bumped defendants Mitsubishi Lancer, from where she
the leg of the plaintiff who was thrown against the eventually fell under the defendants car.
windshield of defendants car, causing its destruction. Spontaneously reacting to the incident, he crossed the
He came to the rescue of the plaintiff, who was pulled street, noting that a man reeking with the smell of
out from under defendants car and was able to say liquor had alighted from the offending vehicle in order
to survey the incident.[7] Equally important, Rodriguez that his version of the accident was merely adroitly
declared that he observed Valenzuelas car parked crafted to provide a version, obviously self-serving,
parallel and very near the sidewalk, [8] contrary to Lis which would exculpate him from any and all liability in
allegation that Valenzuelas car was close to the center the incident. Against Valenzuelas corroborated claims,
of the right lane. We agree that as between Lis self- his allegations were neither backed up by other
serving asseverations and the observations of a witnesses nor by the circumstances proven in the
witness who did not even know the accident victim course of trial. He claimed that he was driving merely
personally and who immediately gave a statement of at a speed of 55 kph. when out of nowhere he saw a
the incident similar to his testimony to the investigator dark maroon lancer right in front of him, which was
immediately after the incident, the latters testimony (the) plaintiffs car. He alleged that upon seeing this
deserves greater weight. As the court emphasized: sudden apparition he put on his brakes to no avail as
the road was slippery.[9]
The issue is one of credibility and from Our own
examination of the transcript, We are not prepared to One will have to suspend disbelief in order to give
set aside the trial courts reliance on the testimony of credence to Lis disingenuous and patently self-serving
Rodriguez negating defendants assertion that he was asseverations. The average motorist alert to road
driving at a safe speed. While Rodriguez drives only a conditions will have no difficulty applying the brakes to
motorcycle, his perception of speed is not necessarily a car traveling at the speed claimed by Li. Given a light
impaired. He was subjected to cross-examination and rainfall, the visibility of the street, and the road
no attempt was made to question his competence or conditions on a principal metropolitan thoroughfare
the accuracy of his statement that defendant was like Aurora Boulevard, Li would have had ample time to
driving very fast. This was the same statement he gave react to the changing conditions of the road if he were
to the police investigator after the incident, as told to a alert - as every driver should be - to those conditions.
newspaper report (Exh. P). We see no compelling basis Driving exacts a more than usual toll on the senses.
for disregarding his testimony. Physiological fight or flight[10] mechanisms are at work,
provided such mechanisms were not dulled by drugs,
The alleged inconsistencies in Rodriguez testimony are alcohol, exhaustion, drowsiness, etc. [11] Lis failure to
not borne out by an examination of the testimony. react in a manner which would have avoided the
Rodriguez testified that the scene of the accident was accident could therefore have been only due to either
across the street where his beerhouse is located about or both of the two factors: 1) that he was driving at a
ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). very fast speed as testified by Rodriquez; and 2) that
He did not state that the accident transpired he was under the influence of alcohol. [12] Either factor
immediately in front of his establishment. The working independently would have diminished his
ownership of the Lambingan sa Kambingan is not responsiveness to road conditions, since normally he
material; the business is registered in the name of his would have slowed down prior to reaching Valenzuelas
mother, but he explained that he owns the car, rather than be in a situation forcing him to
establishment (p. 5, tsn., June 20, 1991). suddenly apply his brakes. As the trial court noted
(quoted with approval by respondent court):
Moreover, the testimony that the streetlights on his Secondly, as narrated by defendant Richard Li to the
side of Aurora Boulevard were on the night the San Juan Police immediately after the incident, he said
accident transpired (p. 8) is not necessarily that while driving along Aurora Blvd., out of nowhere
contradictory to the testimony of Pfc. Ramos that there he saw a dark maroon lancer right in front of him,
was a streetlight at the corner of Aurora which was plaintiffs car, indicating, again, thereby that,
Boulevard and F. Roman Street (p. 45, tsn., Oct. 20, indeed, he was driving very fast, oblivious of his
1991). surroundings and the road ahead of him, because if he
was not, then he could not have missed noticing at a
With respect to the weather condition, Rodriguez still far distance the parked car of the plaintiff at the
testified that there was only a drizzle, not a heavy rain right side near the sidewalk which had its emergency
and the rain has stopped and he was outside his lights on, thereby avoiding forcefully bumping at the
establishment at the time the accident transpired (pp. plaintiff who was then standing at the left rear edge of
64-65, tsn., June 17, 1991). This was consistent with her car.
plaintiffs testimony that it was no longer raining when
she left Bistro La Conga (pp. 10-11, tsn., April 29,
1991). It was defendant Li who stated that it was Since, according to him, in his narration to the San Juan
raining all the way in an attempt to explain why he was Police, he put on his brakes when he saw the plaintiffs
travelling at only 50-55 kph. (p. 11, tsn., Oct. 14, car in front of him, but that it failed as the road was
1991). As to the testimony of Pfc. Ramos that it was wet and slippery, this goes to show again, that,
raining, he arrived at the scene only in response to a contrary to his claim, he was, indeed, running very
telephone call after the accident had transpired (pp. 9- fast. For, were it otherwise, he could have easily
10, tsn, Oct. 28, 1991). We find no substantial completely stopped his car, thereby avoiding the
inconsistencies in Rodriguezs testimony that would bumping of the plaintiff, notwithstanding that the road
impair the essential integrity of his testimony or reflect was wet and slippery. Verily, since, if, indeed, he was
on his honesty. We are compelled to affirm the trial running slow, as he claimed, at only about 55
courts acceptance of the testimony of said eyewitness. kilometers per hour, then, inspite of the wet and
slippery road, he could have avoided hitting the
plaintiff by the mere expedient or applying his brakes
Against the unassailable testimony of witness at the proper time and distance.
Rodriguez we note that Lis testimony was peppered
with so many inconsistencies leading us to conclude
It could not be true, therefore, as he now claims during oncoming truck occurred, was not guilty of negligence.
his testimony, which is contrary to what he told the [19]
Lis obvious unpreparedness to cope with the We agree with the respondent court that the
situation confronting him on the night of the accident relationship in question is not based on the principle
was clearly of his own making. of respondeat superior, which holds the master liable
We now come to the question of the liability of for acts of the servant, but that of pater familias, in
Alexander Commercial, Inc. Lis employer. In denying which the liability ultimately falls upon the employer,
liability on the part of Alexander Commercial, the for his failure to exercise the diligence of a good father
respondent court held that: of the family in the selection and supervision of his
employees. It is up to this point, however, that our
There is no evidence, not even defendant Lis agreement with the respondent court ends. Utilizing
testimony, that the visit was in connection with official the bonus pater familias standard expressed in Article
matters. His functions as assistant manager sometimes 2180 of the Civil Code, [28] we are of the opinion that Lis
required him to perform work outside the office as he employer, Alexander Commercial, Inc. is jointly and
has to visit buyers and company clients, but he solidarily liable for the damage caused by the accident
admitted that on the night of the accident he came of June 24, 1990.
from BF Homes Paraaque he did not have business
from the company (pp. 25-26, tsn, Sept. 23, 1991). The First, the case of St. Francis High School vs. Court
use ofthe company car was partly required by the of Appeals[29] upon which respondent court has placed
nature of his work, but the privilege of using it for non- undue reliance, dealt with the subject of a school and
official business is a benefit, apparently referring to the its teachers supervision of students during an
fringe benefits attaching to his position. extracurricular activity. These cases now fall under the
provision on special parental authority found in Art.
218 of the Family Code which generally encompasses
Under the civil law, an employer is liable for the all authorized school activities, whether inside or
negligence of his employees in the discharge of their outside school premises.
respective duties, the basis of which liability is
not respondeat superior, but the relationship of pater Second, the employers primary liability under the
familias, which theory bases the liability of the master concept of pater familias embodied by Art. 2180 (in
ultimately on his own negligence and not on that of his relation to Art. 2176) of the Civil Code is quasi-delictual
servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). or tortious in character. His liability is relieved on a
Before an employer may be held liable for the showing that he exercised the diligence of a good
negligence of his employee, the act or omission which father of the family in the selection and supervision of
caused damage must have occurred while an its employees. Once evidence is introduced showing
employee was in the actual performance of his that the employer exercised the required amount
assigned tasks or duties (Francis High School vs. Court of care in selecting its employees, half of the
of Appeals, 194 SCRA 341). In defining an employers employers burden is overcome. The question of
liability for the acts done within the scope of the diligent supervision, however, depends on the
employees assigned tasks, the Supreme Court has held circumstances of employment.
that this includes any act done by an employee, in
furtherance of the interests of the employer or for the Ordinarily, evidence demonstrating that the
account of the employer at the time of the infliction of employer has exercised diligent supervision of its
the injury or damage (Filamer Christian employee during the performance of the latters
Institute vs. Intermediate Appellate Court, 212 SCRA assigned tasks would be enough to relieve him of the
637). An employer is expected to impose upon its liability imposed by Article 2180 in relation to Article
employees the necessary discipline called for in the 2176 of the Civil Code. The employer is not expected to
performance of any act indispensable to the business exercise supervision over either the employees private
and beneficial to their employer (at p. 645). activities or during the performance of tasks either
unsanctioned by the former or unrelated to the
employees tasks. The case at bench presents a
In light of the foregoing, We are unable to sustain the situation of a different character, involving a practice
trial courts finding that since defendant Li was utilized by large companies with either their employees
authorized by the company to use the company car of managerial rank or their representatives.
either officially or socially or even bring it home, he can
be considered as using the company car in the service
It is customary for large companies to provide perform work outside the office, visiting prospective
certain classes of their employees with courtesy buyers and contacting and meeting with company
vehicles. These company cars are either wholly owned clients.[30] These meetings, clearly, were not strictly
and maintained by the company itself or are subject to confined to routine hours because, as a managerial
various plans through which employees eventually employee tasked with the job of representing his
acquire their vehicles after a given period of service, or company with its clients, meetings with clients were
after paying a token amount. Many companies provide both social as well as work-related functions. The
liberal car plans to enable their managerial or other service car assigned to Li by Alexander Commercial,
employees of rank to purchase cars, which, given the Inc. therefore enabled both Li - as well as the
cost of vehicles these days, they would not otherwise corporation - to put up the front of a highly successful
be able to purchase on their own. entity, increasing the latters goodwill before its
clientele. It also facilitated meeting between Li and its
Under the first example, the company actually clients by providing the former with a convenient mode
owns and maintains the car up to the point of turnover of travel.
of ownership to the employee; in the second example,
the car is really owned and maintained by the Moreover, Lis claim that he happened to be on the
employee himself. In furnishing vehicles to such road on the night of the accident because he was
employees, are companies totally absolved of coming from a social visit with an officemate in
responsibility when an accident involving a company- Paraaque was a bare allegation which was never
issued car occurs during private use after normal office corroborated in the court below. It was obviously self-
hours? serving. Assuming he really came from his officemates
place, the same could give rise to speculation that he
Most pharmaceutical companies, for instance, and his officemate had just been from a work-related
which provide cars under the first plan, require rigorous function, or they were together to discuss sales and
tests of road worthiness from their agents prior to other work related strategies.
turning over the car (subject of company maintenance)
to their representatives. In other words, like a good In fine, Alexander Commercial, Inc. has not
father of a family, they entrust the company vehicle demonstrated, to our satisfaction, that it exercised the
only after they are satisfied that the employee to care and diligence of a good father of the family in
whom the car has been given full use of the said entrusting its company car to Li. No allegations were
company car for company or private purposes will not made as to whether or not the company took the steps
be a threat or menace to himself, the company or to necessary to determine or ascertain the driving
others. When a company gives full use and enjoyment proficiency and history of Li, to whom it gave full and
of a company car to its employee, it in effect unlimited use of a company car. [31] Not having been
guarantees that it is, like every good father, satisfied able to overcome the burden of demonstrating that it
that its employee will use the privilege reasonably and should be absolved of liability for entrusting its
responsively. company car to Li, said company, based on the
principle of bonus pater familias, ought to be jointly
In the ordinary course of business, not all and severally liable with the former for the injuries
company employees are given the privilege of using a sustained by Ma. Lourdes Valenzuela during the
company-issued car. For large companies other than accident.
those cited in the example of the preceding paragraph,
the privilege serves important business purposes either Finally, we find no reason to overturn the amount
related to the image of success an entity intends to of damages awarded by the respondent court, except
present to its clients and to the public in general, or for as to the amount of moral damages. In the case of
practical and utilitarian reasons - to enable its moral damages, while the said damages are not
managerial and other employees of rank or its sales intended to enrich the plaintiff at the expense of a
agents to reach clients conveniently. In most cases, defendant, the award should nonetheless be
providing a company car serves both purposes. Since commensurate to the suffering inflicted. In the instant
important business transactions and decisions may case we are of the opinion that the reduction in moral
occur at all hours in all sorts of situations and under all damages from an amount of P 1,000,000.00 to
kinds of guises, the provision for the unlimited use of a P500,000.00 by the Court of Appeals was not justified
company car therefore principally serves the business considering the nature of the resulting damage and the
and goodwill of a company and only incidentally the predictable sequelae of the injury.
private purposes of the individual who actually uses
the car, the managerial employee or company sales As a result of the accident, Ma. Lourdes Valenzuela
agent. As such, in providing for a company car for underwent a traumatic amputation of her left lower
business use and/or for the purpose of furthering the extremity at the distal left thigh just above the knee.
companys image, a company owes a responsibility to Because of this, Valenzuela will forever be deprived of
the public to see to it that the managerial or other the full ambulatory functions of her left extremity, even
employees to whom it entrusts virtually unlimited use with the use of state of the art prosthetic technology.
of a company issued car are able to use the company Well beyond the period of hospitalization (which was
issue capably and responsibly. paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the
In the instant case, Li was an Assistant Manager of shrinkage of the stump from the process of healing.
Alexander Commercial, Inc. In his testimony before the
trial court, he admitted that his functions as Assistant These adjustments entail costs, prosthetic
Manager did not require him to scrupulously keep replacements and months of physical and occupational
normal office hours as he was required quite often to rehabilitation and therapy. During her lifetime, the
prosthetic devise will have to be replaced and re-
adjusted to changes in the size of her lower limb accident occurred on Dimas-Alang Street, in the
effected by the biological changes of middle-age, municipality of Caloocan, Province of Rizal. Damages
menopause and aging. Assuming she reaches are claimed in the complaint in the amount of P30,000.
menopause, for example, the prosthetic will have to be Upon hearing the cause the trial court absolved the
adjusted to respond to the changes in bone resulting defendant, and the plaintiff appealed.
from a precipitate decrease in calcium levels observed
in the bones of all post-menopausal women. In other
words, the damage done to her would not only be Shortly after 2 o'clock on the afternoon of August 4,
permanent and lasting, it would also be permanently 1930, trouble developed in a wire used by the
changing and adjusting to the physiologic changes defendant on Dimas-Alang Street for the purpose of
which her body would normally undergo through the conducting electricity used in lighting the City of Manila
years. The replacements, changes, and adjustments and its suburbs. Jose Noguera, who had charge of a
will require corresponding adjustive physical and tienda nearby, first noticed that the wire was burning
occupational therapy. All of these adjustments, it has and its connections smoking. In a short while the wire
been documented, are painful. parted and one of the ends of the wire fell to the
The foregoing discussion does not even scratch ground among some shrubbery close to the way. As
the surface of the nature of the resulting damage soon as Noguera took cognizance of the trouble, he
because it would be highly speculative to estimate the stepped into a garage which was located nearby and
amount of psychological pain, damage and injury which asked Jose Soco, the timekeeper, to telephone the
goes with the sudden severing of a vital portion of the Malabon station of the Manila Electric Company that an
human body. A prosthetic device, however electrical wire was burning at that place. Soco
technologically advanced, will only allow a reasonable transmitted the message at 2.25 p.m. and received
amount of functional restoration of the motor functions answer from the station to the effect that they would
of the lower limb. The sensory functions are forever send an inspector. From the testimony of the two
lost. The resultant anxiety, sleeplessness, witnesses mentioned we are justified in the conclusion
psychological injury, mental and physical pain are that information to the effect that the electric wire at
inestimable.
the point mentioned had developed trouble was
As the amount of moral damages are subject to received by the company's servant at the time stated.
this Courts discretion, we are of the opinion that the At the time that message was sent the wire had not yet
amount of P1,000,000.00 granted by the trial court is parted, but from the testimony of Demetrio Bingao,
in greater accord with the extent and nature of the one of the witnesses for the defense, it is clear that the
injury -. physical and psychological - suffered by end of the wire was on the ground shortly after 3 p.m.
Valenzuela as a result of Lis grossly negligent driving of
his Mitsubishi Lancer in the early morning hours of the
accident. At 4 p. m. the neighborhood school was dismissed and
the children went home. Among these was Alberto del
WHEREFORE, PREMISES CONSIDERED, the Rosario, of the age of 9 years, who was a few paces
decision of the court of Appeals is modified with the ahead of two other boys, all members of the second
effect of REINSTATING the judgment of the Regional grade in the public school. These other two boys were
Trial Court. Jose Salvador, of the age of 8, and Saturnino Endrina,
SO ORDERED. of the age of 10. As the three neared the place where
the wire was down, Saturnino made a motion as if it
Padilla, Bellosillo, and Hermosisima, Jr., JJ., concur. touch it. His companion, Jose Salvador, happened to be
Vitug., J., see concurring opinion. the son of an electrician and his father had cautioned
him never to touch a broken electrical wire, as it might
have a current. Jose therefore stopped Saturnino,
telling him that the wire might be charged. Saturnino
yielded to this admonition and desisted from his
G.R. No. L-35283 November 5, 1932 design, but Alberto del Rosario, who was somewhat
ahead, said, I have for some time been in the habit of
JULIAN DEL ROSARIO, plaintiff-appellant, vs.MANILA touching wires ("Yo desde hace tiempo cojo alambres").
ELECTRIC COMPANY, defendant-appellee. Jose Salvador rejoined that he should into touch wires
as they carry a current, but Alberto, no doubt feeling
Vicente Sotto for appellant. that he was challenged in the matter, put out his index
Ross, Lawrence & Selph and Antonio T. Carrascoso, Jr. finger and touch the wire. He immediately fell face
for appellee. downwards, exclaiming "Ay! madre". The end of the
wire remained in contact with his body which fell near
the post. A crowd soon collected, and some one cut the
STREET, J.:
wire and disengaged the body. Upon being taken to St.
Luke's Hospital the child was pronounced dead.
This action was instituted by Julian del Rosario for the
purpose of recovering damages from the Manila
The wire was an ordinary number 6 triple braid weather
Electric Company for the death of his son, Alberto del
proof wire, such as is commonly used by the defendant
Rosario, resulting from a shock from a wire used by the
company for the purpose of conducting electricity for
defendant for the transmission of electricity. The
lighting. The wire was cased in the usual covering, but
this had been burned off for some distance from the
point where the wire parted. The engineer of the
company says that it was customary for the company Separate Opinions
to make a special inspection of these wires at least
once in six months, and that all of the company's
ABAD SANTOS, J., concurring in part and dissenting
inspectors were required in their daily rounds to keep a
in part:
lookout for trouble of this kind. There is nothing in the
record indicating any particular cause for the parting of
the wire.lawphil.net I concur in so far as the defendant company is held
liable for the death of the plaintiff's son, but I dissent in
so far as the decision allows the plaintiff to recover of
We are of the opinion that the presumption of
the defendant the sum of P1,250 only.
negligence on the part of the company from the
breakage of this wire has not been overcome, and the
defendant is in our opinion responsible for the It is well settled in this jurisdiction that an action will lie
accident. Furthermore, when notice was received at the to recover damages for death caused by the wrongful
Malabon station at 2.25 p. m., somebody should have act. (Manzanares vs. Moreta, 38 Phil., 821.) The
been dispatched to the scene of the trouble at once, or question, however, arises as to the amount of damages
other measures taken to guard the point of danger; but recoverable in this case. In criminal cases, this court
more than an hour and a half passed before anyone has adopted the rule of allowing, as a matter of course,
representing the company appeared on the scene, and the sum of P1,000 as indemnity to the heirs of the
in the meantime this child had been claimed as a deceased. Following that rule, the court has allowed
victim. the plaintiff in this case to recover the sum of P1,000
as general damages for loss of service. Whatever may
be the reasons for the rule followed in criminal cases, I
It is doubtful whether contributory negligence can
am of the opinion that those reasons do not obtain in
properly be imputed to the deceased, owing to his
fixing the amount of the damages recoverable in the
immature years and the natural curiosity which a child
present case. The indemnity allowed in criminal case is
would feel to do something out of the ordinary, and the
merely incidental to the main object sought, which is
mere fact that the deceased ignored the caution of a
the punishment of the guilty party. In a civil action, the
companion of the age of 8 years does not, in our
principal object is the recovery of damages for
opinion, alter the case. But even supposing that
wrongful death; and where, as in this case, the
contributory negligence could in some measure be
defendant is a corporation, not subject to criminal
properly imputed to the deceased, a proposition
prosecution for the act complained of, the question
upon which the members of the court do not all agree,
assumes a vastly different aspect. Both in reason and
yet such negligence would not be wholly fatal to the
in justice, there should be a distinction between the
right of action in this case, not having been the
civil liability of an ordinary person who, by wrongful
determining cause of the accident. (Rakes vs. Atlantic,
act, has caused the death of another; and the civil
Gulf and Pacific Co., 7 Phil., 359.)
liability of a corporation, organized primarily for profit,
which has caused the death of a person by failure to
With respect to the amount of damages recoverable exercise due care in the prosecution of its business.
the majority of the members of this court are of the The liability of such a corporation for damages must be
opinion that the plaintiff is entitled to recover P250 for regarded as a part of the risks which it assumes when
expenses incurred in connection with the death and it undertakes to promote its own business; and just as
burial of the boy. For the rest, in accordance with the it is entitled to earn adequate profits from its business,
precedents cited in Astudillo vs. Manila Electric so it should be made adequately to compensate those
Company (55 Phil., 427), the majority of the court are who have suffered damage by its negligence.
of the opinion that the plaintiff should recover the sum
of P1,000 as general damages for loss of service.
Considering the circumstances of this case, I am of the
opinion that the plaintiff should recover the sum of
The judgment appealed from is therefore reversed and P2,250 as damages.
the plaintiff will recover of the defendant the sum of
P1,250, with costs of both instances. So ordered.